5 Things You Should Know About Trump’s Court of Federal Claims Nominee

Last month, President Trump nominated Damien Schiff to a 15-year term on the Court of Federal Claims. Schiff’s hearing before the Senate Judiciary Committee took place Wednesday morning. The Judiciary Committee held a two-hour hearing for three nominees, including Schiff and John K. Bush, a time period so short that it was impossible to even touch on many of the issues that concern NWLC about these nominees. Here are five things you should know about Damien Schiff:

1. He once described Justice Anthony Kennedy as a “judicial prostitute.”

Schiff is a prolific blogger, legal commentator, and litigator. He has made intemperate statements, including saying that “Justice [Anthony] Kennedy is. . . a judicial prostitute, ‘selling’ his vote as it were to four other Justices in exchange for the high that comes from aggrandizement of power and influence, and the blandishments of the fawning media and legal academy.” At his hearing, he said that he was criticizing the media and the way they portrayed Kennedy, which is, to put it mildly, at odds with the actual language of the quote.  In addition, he has expressed an extremely troubling view of the role of the judiciary in his writings, stating that the role of judges is to create a “reinvigorated constitutional jurisprudence, emanating from the judiciary” which “could well be the catalyst to real reform, as opposed to that reform coming from other branches.” While he said at his hearing that, if confirmed to the Court of Federal Claims, he would apply the law neutrally, he did not account for the clear shift in his judicial philosophy from advocating for judges to be conservative activists to applying legal precedent in a neutral manner.

2. He has said that Title IX should not apply to high school sports, despite decades of policy and precedent.

Schiff has asserted that Title IX does not apply to high school sports, contrary to the Title IX regulations and Department of Education policies that have been on the books for decades and upheld by the courts. As an attorney with the Pacific Legal Foundation (PLF), he said, “Most people thought that Title IX only applied to collegiate athletics until recently the National Women’s Law Center, a left leaning group, has been threatening all sorts of high schools through the country because they contend that they are out of compliance with Title IX.” He also asserted that Title IX discriminated on the basis of sex and therefore was unconstitutional. In 2007, the PLF submitted a petition to the Department of Education to rescind the regulation and policy interpretations that have long applied Title IX to high school sports. The Department of Education rejected their petition, noting that PLF had presented the same arguments in 2003—namely, that the Title IX athletics policies create an affirmative action or quota system—and that the Department had rejected them then too.

3. He has demonstrated consistent hostility to abortion rights.

On his blog, Schiff has written several posts in which the views he expresses raise serious concerns as to whether he can fairly and impartially adjudicate cases that may touch on abortion rights. In one post, he compares abortion to infanticide and slavery. His conclusion includes a statement that those who support abortion are simply wrong: “I am not saying that people in favor of legalized abortion are morally decrepit (although I would consider their view on this matter to be gravely in error).” In another, he criticizes sex equality arguments for reproductive rights, arguing that it is “fruitless” to compare men to women with respect to abortion since “men cannot bear children,” and says that the argument that ”forbidding women to abort their unborn children” deprives them of liberty under the Due Process Clause is “without originalist merit.”

4. He has expressed troubling legal views about LGBTQ rights on multiple occasions on his blog.

He has criticized the Supreme Court’s decision in Lawrence v. Kansas, which struck down laws criminalizing consensual sexual conduct between adults. In a blog post, he also criticized a school district’s efforts to address bullying of LGBTQ students. In a blog post entitled “Teaching ‘gayness’ in public schools,” Schiff criticized the district “not only that bullying of homosexuals qua homosexuals is wrong, but also that the homosexual lifestyle is a good, and that homosexual families are the moral equivalent of traditional heterosexual families.” During his nomination hearing, Schiff refused to answer questions from Senator Franken (D-MN) about this blog post, as well as other questions about his views on LGBTQ rights. Schiff also criticized a decision in Florida invalidating the state’s ban on adoption by same-sex couples. In addition, Schiff was critical of the California Supreme Court’s decision in the Marriage Cases, which applied strict scrutiny to classifications on the basis of sexual orientation.

5. He is opposed to race-conscious admissions policies in higher education.

Schiff co-authored a law review article prior to the Supreme Court’s review of the first Fisher v. University of Texas case. The article argued that the Court should find the University of Texas’s race-conscious admissions policy unconstitutional, arguing that Grutter, “should … be recognized as one of the Supreme Court’s mistakes,” and overturned, and that diversity should be rejected as a compelling interest.