Lambda Legal Joins with 15 National LGBT Groups to Oppose the Confirmations of John K. Bush and Damien Schiff to the Federal Bench, Citing Nominees’ ‘Contempt’ for LGBT Americans

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In Letter Sent to Senate Judiciary Committee Leaders Ahead of Wednesday’s Confirmation Hearing, LGBT Advocates Cite Writings and Speeches from Nominees
June 12, 2017

Washington, DC – Today, Lambda Legal and 15 other national LGBT groups urged opposition to the confirmations of John K. Bush to the U.S. Court of Appeals for the Sixth Circuit, and Damien Schiff to the U.S. Court of Federal Claims, citing public statements and writings from both nominees and their repeated demonstration of “contempt for LGBT Americans, people living with HIV, women, and other vulnerable populations.”

In a letter sent to leaders of the Senate Judiciary Committee – who are expected to hear testimony from both nominees at a confirmation hearing scheduled for Wednesday morning – LGBT groups opposed to the confirmations cite not only homophobic epithets and other anti-LGBT and misogynistic remarks made by nominees in their public speeches and writings but also records that clearly illustrate their “views on civil rights issues are fundamentally at odds with the notion that LGBT people are entitled to equality, liberty, justice and dignity under the law.”

“The records of Mr. Bush and Mr. Schiff demonstrate that their appointment to the bench would cause grave harm to the LGBT community, as well as many other communities who rely on the federal judiciary to administer fair and impartial justice,” the letter states. “We urge you to reject their respective nominations.”

The letter documents troubling records on behalf of both nominees and explains how these nominees’ particular brand of “originalism” essentially writes LGBT people out of the Constitution in a way that denies them full personhood.

“Mr. Bush’s disparagement of decisions protecting the right of individuals to make highly personal decisions – the right to engage in private consensual adult relationships, and the right to procreative freedom – reveals a hostility to well established fundamental rights of liberty, privacy, autonomy and self-determination that have been the lynchpin of legal progress for LGBT people,” the letter states.

For a decade, Bush hid behind a “secret” online identity to post extensive rants attacking people with whom he disagreed, often using crude language and insults, and believes the term “faggot” is acceptable language to use in a public address. Bush has also made public statements enthusiastically endorsing the views of opponents of marriage equality for same sex couples, and in 2008 compared abortion to slavery and Roe v. Wade to Dred Scott, writing, “The two greatest tragedies in our country – slavery and abortion – relied on similar reasoning and activist justices at the U.S. Supreme Court …”

Schiff’s record is equally as troubling, believing that states should be able to criminalize “consensual sodomy” – at odds with the landmark case Lawrence v. Texas – and has criticized efforts to prevent bullying of LGBTQ students and referring to the efforts as “teaching gayness in schools.”

“Mr. Schiff has also aligned himself with the concept of ‘natural law’ or ‘divine law’ – the theory that particular, ostensibly universal moral truths trump constitutional rights,” the letter states. “This vague notion incorporates the radical views that LGBT identities and intimate relationships are ‘unnatural.’”

The full letter sent to the Senate Judiciary Committee can be found below and here. For further information, or to speak with a representative of Lambda Legal, please contact Lisa Hardaway at lhardaway@lambdalegal.org.

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June 12, 2017

The Honorable Charles Grassley

Chairman

Senate Committee on the Judiciary

224 Dirksen Senate Office Building

Washington, D.C. 20510

The Honorable Dianne Feinstein

Ranking Member

Senate Committee on the Judiciary

152 Dirksen Senate Office Building

Washington, D.C. 20510

RE: National LGBT Groups Oppose Confirmation of John K. Bush and Damien Schiff

Dear Chairman Grassley and Ranking Member Feinstein:

We, the undersigned 16 national advocacy organizations, representing the interests of lesbian, gay, bisexual and transgender (LGBT) people and everyone living with HIV, write to oppose the nomination of John Kenneth Bush to the U.S. Court of Appeals for the Sixth Circuit and the nomination of Damien Schiff to the U.S. Court of Federal Claims.

After reviewing the records of Mr. Bush and Mr. Schiff, we have concluded that their views on civil rights issues are fundamentally at odds with the notion that LGBT people are entitled to equality, liberty, justice and dignity under the law.  Although neither Mr. Bush nor Mr. Schiff has any judicial experience, their public statements and writings have repeatedly demonstrated contempt for LGBT Americans, people living with HIV, women, and other vulnerable populations.  We wish to call to your attention aspects of their records that illustrate why these nominees are unfit for the bench, and pose a grave threat to the communities that our organizations serve.

John K. Bush

First and foremost, we are deeply concerned by Mr. Bush’s writings regarding fundamental rights.  In a 2016 paper, Mr. Bush lamented that the Kentucky Supreme Court departed from precedent and the will of the legislature when it “immunized consensual sodomy from criminal prosecution under the state constitution.”   In addition, in a 2008 piece, Mr. Bush compared abortion to slavery and Roe v. Wade to Dred Scott, writing that “[t]he two greatest tragedies in our country—slavery and abortion—relied on similar reasoning and activist justices at the U.S. Supreme Court….”   Mr. Bush’s disparagement of decisions protecting the right of individuals to make highly personal decisions—including the right to engage in private consensual adult relationships and the right to procreative freedom—reveals a hostility to well-established fundamental rights of liberty, privacy, autonomy and self-determination that have been the lynchpin of legal progress for LGBT people.

Mr. Bush’s writings on these subjects are manifestations of his particular “originalist” approach to constitutional interpretation, which he has described as “the only principled way” to render judicial decisions.   As we have explained to this Committee previously,  this so-called “originalism” is a judicial philosophy that treats the Constitution as frozen in time, meaning that, unless the Constitution has been amended to explicitly protect individuals against particular violations of their rights, they have no more rights today than they did in 1789.   Furthermore, this approach rejects the notion that laws targeting historically disfavored groups warrant any form of heightened scrutiny, with the exception of laws that discriminate on the basis of race.  In fact, under Mr. Bush’s brand of originalism, even the seminal First Amendment case, New York Times v. Sullivan, was “wrongly decided.” 

Mr. Bush’s public statements enthusiastically endorsing the views of opponents of marriage equality for same-sex couples also raise serious concerns about Mr. Bush’s willingness to follow established legal precedent in decisions like United States v. Windsor and Obergefell v. Hodges.  Based on these public statements and his self-avowed “originalism,” we do not believe that Mr. Bush will uphold established precedent on these and other important questions affecting the LGBT community.  On this basis alone, Mr. Bush’s nomination should be rejected. 

Other public statements from Mr. Bush demonstrate a level of contempt for LGBT people and women that should lead any reasonable member of this Committee to question Mr. Bush’s fitness to serve.  For example, Mr. Bush apparently feels as though the term “faggot” is acceptable language to use in a public address.   Any attempt to excuse this language by suggesting that Mr. Bush was merely quoting another should be dismissed out of hand.  In addition to being offensive, use of this epithet in a public speech illustrates a stunning lack of judgment, not to mention a gross insensitivity to the experiences of vulnerable communities. These traits are incompatible with the role of a federal judge.

Mr. Bush’s record is also riddled with sexist remarks that are equally inflammatory.  In a piece from 2008, Mr. Bush referred to House Speaker Nancy Pelosi as “Mama Pelosi” and called for her to be gagged.   In the same year, Mr. Bush criticized a U.S. State Department decision to create gender-neutral parental indicators on passport applications, writing that the policy was an example of excessive government interference with the family, and called Secretary Hillary Clinton a “nanny Secretary of State.”   Even his court filings, while more tempered in tone, reveal a view of women steeped in anachronistic and harmful stereotypes.  Specifically, in a 1993 amicus brief, Mr. Bush opposed the right of women to be admitted to the state-supported Virginia Military Institute, writing that VMI’s educational style “does not appear to be compatible with the somewhat different developmental needs of most young women.”

Damien Schiff

Mr. Schiff’s nomination is equally frightening to the LGBT community.  Mr. Schiff’s writings reveal a documented antipathy toward legal equality for LGBT people and other populations that depend on the federal judiciary.  For example, in a 2007 piece, Mr. Schiff wrote that he “strongly disagrees” with Lawrence v. Texas, the Supreme Court’s 2003 landmark decision striking down Texas’s sodomy law as an unconstitutional deprivation of liberty.   Mr. Schiff grounded his objection to Lawrence in “originalist” judicial philosophy, writing that “I can find no historical or precedential basis, pre-1868, for its limitation on the legislative proscription of sodomy.”   As noted previously, this judicial philosophy essentially writes LGBT people out of the Constitution in a way that denies the full personhood of this group of Americans and is out of touch with where we are as a nation.  In other writings, Mr. Schiff criticized the California Supreme Court’s application of heightened judicial scrutiny to laws targeting gay people, lamenting that doing so would have far-ranging and, in his view, negative effects in the years to come.   Mr. Schiff has also aligned himself with the concept of “natural law” or “divine law,” the theory that particular, ostensibly universal moral truths trump constitutional rights.  This vague notion incorporates the radical views that LGBT identities and intimate relationships are “unnatural.”

Mr. Schiff has also taken aim at key civil rights protections upon which the LGBT community relies by challenging the application of Title IX of the Education Amendments of 1972 to high school students.  In a 2011 lawsuit, Mr. Schiff claimed that “Congress had absolutely no evidence before it enacted Title IX that there was sexual discrimination going on in high schools.  Therefore, they [have] no constitutional basis to impose those requirements on high schools.”   Title IX is critical to ensuring that LGBT and gender non-conforming students are able to have equal educational opportunity.  Someone who displays such contempt for key federal civil rights protections should not be rewarded with a judicial appointment.

Mr. Schiff 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.  In a 2009 piece entitled “Teaching ‘Gayness’ in Public Schools, Mr. Schiff criticized California public schools for teaching “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.”   Mr. Schiff went on to write that “[u]ntil consensus is reached on the moral implications of homosexuality, any attempt on the part of the public schools to take sides on those implications is wrongheaded.”   Mr. Schiff’s piece reduces gay people’s rights and dignity to a “lifestyle” and demonstrates his complete and categorical disregard for any families other than those formed by heterosexual, gender conforming individuals.

The recklessness of Mr. Schiff’s other inflammatory writings should also trouble this Committee.  In a 2007 piece entitled Kennedy as the Most Powerful Justice?, Mr. Schiff referred to Supreme Court Justice Anthony Kennedy as “a judicial prostitute” for “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.”   As offensive as this statement is in its own right, it is not lost on our community that the target of such calumny is the author of the four pillars of jurisprudence from the last two decades recognizing the full humanity and citizenship of LGBT Americans. 

* *  *  *  *

While the above examples focus on the threat that Mr. Bush and Mr. Schiff pose to the LGBT community, we share the concerns expressed by the Leadership Conference on Civil and Human Rights and others about their approaches to civil rights generally.  The records of Mr. Bush and Mr. Schiff demonstrate that their appointment to the bench would cause grave harm to the LGBT community, as well as many other communities who rely on the federal judiciary to administer fair and impartial justice.  Simply put, these are not the kinds of judges that this country wants, needs or deserves.  We urge you to reject their respective nominations.

Thank you for considering our views on this important issue.  Please do not hesitate to reach out if we can provide additional information throughout the confirmation process.  You can reach us through Sharon McGowan, Director of Strategy for Lambda Legal, at smcgowan@lambdalegal.org.

Very truly yours,

Lambda Legal

Advocates for Youth

CenterLink: The Community of LGBT Centers

Equality California

Family Equality Council

Freedom for All Americans

GLBTQ Legal Advocates & Defenders (GLAD)

Immigration Equality Action Fund

National Black Justice Coalition

National Center for Lesbian Rights

National Center for Transgender Equality

National LGBTQ Task Force

OutServe-SLDN

Transgender Legal Defense & Education Fund

URGE: Unite for Reproductive & Gender Equity

Whitman-Walker Health

cc: United States Senate Judiciary Committee Members

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Contact Info

Lisa Hardaway: lhardaway@lambdalegal.org

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