Two individuals that President Trump has nominated to the federal bench have said some shocking, intemperate, inappropriate things on blogs (in addition to making problematic statements in legal articles and briefs).
For example, John K. Bush, nominated for a lifetime position on the U.S. Court of Appeals for the Sixth Circuit, said in a blog post written under a pseudonym that abortion was one of the “two greatest tragedies in our country” (the other being slavery). Damien Schiff, nominated to a 15-year term on the U.S. Court of Federal Claims, called Supreme Court Justice Anthony Kennedy a “judicial prostitute” and impugned the motives of environmental advocates arguing for the enforcement of laws like the Endangered Species Act. He also complained about gay families being treated as “the moral equivalent of traditional heterosexual families,” and argued that abortion (like slavery) violated natural law (there’s more, but you get the point).
A lot of people express strongly held views on blogs, but statements like these are deeply problematic when they come from individuals nominated to become judges. This is because we expect judges to be impartial, to decide cases on the law and the facts, and to treat litigants coming before them fairly and even-handedly. When judicial nominees have expressed outrageous legal views, it raises serious questions about whether they would approach those issues with an open mind in an individual court case. When nominees have questioned the morality or motives of individuals with different views than their own, it raises serious questions about whether the nominees would treat those parties with respect and give their legal arguments fair consideration. And when nominees dismiss hundreds of intemperate and wildly inappropriate statements by saying they would follow precedent and their personal views are irrelevant, it asks people bringing their legal problems to the courts to bear the considerable risk that, if confirmed, those nominees would rule exactly as you would have guessed they would after reading through their records. To put it another way, it undermines confidence in our courts and in the rule of law.
Our laws matter, and our courts matter. We deserve better from our federal judges. Next week, when the Senate Judiciary Committee votes on the nominations of John Bush and Damien Schiff, they should vote no.