Damien Schiff, writing about an antibullying program in a Northern California school district, worried it would teach “that homosexual families are the moral equivalent of traditional heterosexual families.” He also once wrote that the U.S. Constitution’s due process clause “likely does not forbid the criminalization of sodomy.”
Amy Coney Barrett has said, “The Constitution does not expressly protect a right to privacy,” and that Catholic judges should put their faith before the law when ruling on abortion and the death penalty.
Readers are now probably wondering who these people are and why they should care. The answer is that they’re among several far-right nominees for federal judgeships put forth by Donald Trump.
Nominees for the U.S. Supreme Court receive plenty of attention from media, activist groups, and concerned citizens, but nominees for lower federal courts get less. But, as Alliance for Justice legal director Dan Goldberg points out, the Supreme Court hears only 80 cases a year, and the bulk of law is made by these lower courts.
“Anyone who cares about equal rights, equal protection, a good environment, the rule of law, needs to care about who is sitting on these lower courts,” says Goldberg, whose organization is a national association of progressive groups supporting a fair and independent judiciary.
Adds Sharon McGowan, director of strategy for LGBT-focused Lambda Legal: “At this moment more than any other, people have come to rely on the courts to check the excesses of the other branches of government. We can’t rely on the courts to protect us if we don’t protect the courts.”
And most federal judges are appointed for life. If anti-LGBT or otherwise objectionable judicial nominees are confirmed, “the damage done to the federal courts is generational,” says McGowan.
The importance of who fills federal judicial positions below the Supreme Court level was highlighted this month when the Senate confirmed John K. Bush to the U.S. Court of Appeals for the Sixth Circuit. Bush, a lawyer from Louisville, Ky., has criticized rulings striking down antisodomy laws, objected to gender-neutral language on passport applications, likened legal abortion to slavery, and even passed along “birther” conspiracy theories, which allege that Barack Obama was not born in the U.S. and was therefore ineligible to be president. Alliance for Justice, Lambda, and other progressive groups opposed his confirmation.
They and others are also opposing Schiff, whose nomination to the U.S. Court of Federal Claims is still pending. “Rarely has there been a nominee who is so sorely unfit to serve as a judge,” says Alliance for Justice’s online report on Schiff. And a letter by Lambda and other LGBT groups urging the Senate to reject Schiff says he “has gone beyond merely disagreeing with the judicial precedents that serve as the foundation of the LGBT community’s legal security and progress, and has denigrated LGBT people in ways that suggest that he is simply incapable of administering the law with respect to LGBT people without bias or prejudgment.”
Schiff is a lawyer with the Pacific Legal Foundation, a conservative/libertarian legal nonprofit that often takes on government regulations, including environmental protections. He is also a member of the Federalist Society, a prominent conservative organization, as are several other Trump judicial nominees.
As for the antibullying program he wrote about with such alarm in a 2009 blog post, he admitted to Sen. Al Franken that he had never reviewed the curriculum, according to Lambda’s letter. Among his other flag-raising statements, he has called Supreme Court Justice Anthony Kennedy “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.” He has deemed Earth Day “a threat to individual liberty and property rights,” and has disparaged union organizers and many legal scholars, notes the Alliance for Justice.
The court to which he is nominated, the Court of Federal Claims, hears cases making monetary claims against the U.S. government. But some such cases do have implications for civil rights, Lambda points out. For instance, Collins v. United States, a class action suit that challenged a Defense Department policy under which military personnel discharged for homosexuality received half the separation pay as others, was filed in the court, although eventually settled in 2010 without trial, with all troops receiving full pay. And in 2014, the court dismissed a case brought by virulently anti-LGBT preacher Gordon Klingenschmitt, who alleged he lost his position as a Navy chaplain because he had delivered Christian prayers — when in reality it was because of performance issues and wearing his uniform at a political event, against military regulations.
The court also can be a stepping-stone to other federal courts, and right-wing groups are interested in getting people like Bush and Schiff “in the pipeline for judicial elevation,” says McGowan. The Alliance for Justice adds that Schiff’s nomination has come because Obama’s nominee, Jeri Kaylene Somers, never received a full Senate vote despite being unanimously approved twice by the Judiciary Committee.
Barrett is another nominee opposed by the Alliance for Justice. A professor at Notre Dame Law School, she is nominated for a judgeship on the U.S. Court of Appeals for the Seventh Circuit, covering Illinois, Wisconsin, and Indiana. She does not have a major paper trail on LGBT rights, but her assertion that a judge’s religious beliefs can supersede the law is troublesome regarding a variety of issues, Goldberg says.
“It would be hard to overstate the degree to which Barrett’s academic work has been tailored to dismantle Roe v. Wade,” the Alliance’s website notes. “Indeed, her belief that a judge can refuse to neutrally apply well-settled law seems to be born of her staunch opposition to a woman’s right to choose whether to have an abortion.” She also has very little litigation experience, and what she has is highly partisan — for example, she was an attorney for George W. Bush during Bush v. Gore, the case involving the 2000 presidential election results.
Barrett, if confirmed, would fill another of the judgeships left vacant by Republican blocking of Obama’s nominees. His nominee for the Seventh Circuit, former Indiana Supreme Court Justice Myra Selby, did not receive a hearing because Republican Sen. Dan Coats of Indiana refused to return the “blue slip,” an evaluation form filled out by the nominee’s home-state senators. The nominations don’t proceed unless both senators return the slip, and at least 17 of Obama’s nominees were blocked using this process, Goldberg says, while some were voted on in committee but not by the full Senate.
The Alliance is not outright opposing any other nominees but is raising concerns about several, Goldberg says. They are:
• Stephen S. Schwartz, a lawyer nominated, like Schiff, to the Court of Federal Claims. Schwartz’s legal career includes representing the Gloucester County School Board in Virginia against Gavin Grimm, the transgender student who sued over being denied access to the boys’ restroom at his high school. “Schwartz’s brief legal career has been as an advocate for ultraconservative causes, opposing critical legal protections for women, transgender youth, immigrants, and people of color,” the Alliance says in its report on him. Lambda also expects to raise a red flag about Schwartz and possibly others. Republicans in the Senate had blocked an Obama nominee for the same position.
• David Stras, a Minnesota Supreme Court justice nominated for the U.S. Court of Appeals for the Eighth Circuit. He let the legislature overrule the Minnesota secretary of state in choosing a title for anti–marriage equality amendment to the Minnesota constitution that was put before voters, with the result being a title biased in its favor, according to the Alliance (but the amendment was defeated anyway). He has also shown hostility to voting rights and workplace discrimination claims, and even once objected to the admittance of expert testimony that might undermine a rape defendant’s claim of consensual sex.
• Ralph Erickson, a judge on the U.S. District Court in North Dakota, also nominated for the Eighth Circuit. “He has issued notable anti-LGBTQ and anti-environment rulings, granting one injunction to halt a Department of Health and Human Services rule that would have protected transgender individuals from discrimination by health providers, and another to halt the Obama Administration’s Clean Water Rule,” the Alliance notes in its report. He would fill a vacancy left because Obama’s nominee never received a vote.
• Kevin Newsom, a lawyer and former solicitor general for the state of Alabama, nominated for the U.S. Court of Appeals for the Eleventh Circuit. As solicitor general, he “had a record of defending questionable death penalty practices in Alabama and advancing arguments which would curtail civil rights, including efforts to limit critical protections under Title IX,” a federal law banning sex discrimination in education, the Alliance report says. He also has written critically of substantive due process, an essential constitutional doctrine for women’s rights and LGBTQ rights,” its report continues. He’s another nominee getting a chance because an Obama nominee was blocked. Sens. Richard Shelby and Jeff Sessions (now U.S. attorney general) refused to return the blue slips on Obama nominee Abdul Kallon.
• Joan Larsen, a Michigan Supreme Court justice nominated for the Sixth Circuit. “Larsen has written about presidential power in ways that suggest she would not act as an independent check on the Executive Branch, an issue of particular import at a time when the President publicly lambasts judges and demonstrates repeated disdain for the rule of law,” the Alliance notes on its website. While working in the U.S. Office of Legal Counsel under President George W. Bush, she wrote a memo on the habeas corpus rights of prisoners — habeas corpus means, among other things, that the prisoner has to be given a valid reason for detention. The memo has never been made public, and it should be before her nomination proceeds, the Alliance asserts.
How to block objectionable judges? Make sure your senators hear from you, says Lambda’s McGowan. After Bush’s confirmation, “we need to do everything we can to say ‘not one more,’” she says.
“It’s imperative to let your senators know this is something important to you,” she adds. “Let your senators know this is an issue people are watching.”