At the six-month mark of his presidency, Trump's supporters and apologists put the confirmation of Supreme Court Justice Neil Gorsuch at the top of a short list of significant accomplishments. Even though hard-fought and narrowly won, Gorsuch's confirmation shows the White House a path toward more victories to feed to the minority of Americans who constitute Trump's political base.
Against that backdrop, it bears repeating that Trump is on a record pace of judicial nominations at this point in his popular-vote loss presidency, according to figures compiled by Ronald Klain, a veteran Democratic politico, for an op-ed in the Washington Post. Trump's 27 nominations for federal district court judgeships through mid-July are more than three times Obama's total for the comparable period and double the number for Reagan, Bush41, and Clinton combined, according to Klain's count.
For the federal courts of appeals, Trump has named nine nominees; no president before Trump has named more than three whose nominations were processed in his first six months, according to Klain. Trump's opportunities are a gift from Senate Republicans, who did far more than block Merrick Garland's Supreme Court nomination last year. They also left a record 137 federal judicial vacancies for Trump to begin filling on his first day in office.
Trump picked up a win last week when the Senate confirmed an anti-gay conservative lawyer and intemperate political blogger to the federal appeals court for the four-state circuit that includes my home state, Tennessee. John Bush won confirmation to the Sixth U.S. Circuit Court of Appeals by a strictly party-line vote of 51-47.
On paper, Bush has the basic qualifications for a federal judgeship: a Harvard law degree, a clerkship with a federal appellate judge, and two decades as a commercial litigator with a well-regarded Louisville law firm, as the invaluable blog The Vetting Room detailed in its coverage. But the political rants that he posted for years under a pseudonym on a political blog created by his wife mark him as lacking the judicial temperament and sound judgment that are as important, if not more so, than academic and professional credentials.
Two liberal groups, People for the American Way and Alliance for Justice, helped spearhead opposition to the nomination in advance of Bush's contentious Senate Judiciary Committee hearing last month. Gay rights groups, including the Human Rights Campaign, joined in urging his defeat based on, for example, a blog post mocking the State Department's revision of the passport application to accommodate same-sex marriages. The critics also cited a post that likened the Supreme Court's infamous pro-slavery decision in the Dred Scott case to the reproductive rights decision in Roe v. Wade.
Bush got an unenthusiastic passing grade of "qualified" from the American Bar Association's Standing Committee on the Federal Judiciary, not the other, higher rating of "well qualified." In fact, Bush's qualifications pale in comparison to the typical nominee for a federal circuit court. More commonly, a circuit court nominee has a distinguished record as a law school professor, state or federal judge, or other government official. On the current Supreme Court, the eight justices who served on federal circuit courts all had qualifications like those before their nominations.
In place of objective qualifications like those, Bush's record included political lawyering and, perhaps most important, two decades of helping to lead the Louisville chapter of the Federalist Society. The Federalist Society has been a career ladder for would-be federal judges under Republican administrations dating to its founding in the Reagan era.
Under Trump, the relationship has been de facto formalized: Gorsuch was on the list of 20 names for the Supreme Court post that the group submitted at Trump's request during the presidential campaign. Trump marked the successful confirmation vote by meeting at the White House in pep rally-style with Federalist Society leaders.
Bush's lawyering included work on Reagan's Iran-contra defense team. As commercial litigator, he worked on behalf of a tobacco company in an unsuccessful court get out of its obligations under the master settlement that tobacco companies negotiated with state attorneys general. On the other hand, he also represented the Louisville Area Chamber of Commerce in an amicus brief at the Supreme Court unsuccessfully urging the justices to uphold the school district's desegregation policies.
In the final hour of debate on Bush's nomination, his fellow Kentuckian, Senate Majority Leader Mitch McConnell, urged senators to confirm "my friend John Bush." McConnell minimized the controversy over Bush's blog posts by noting similar blogging by previous Democratic judicial nominees. Minnesota Democrat Al Franken rejected the comparison by noting that Bush's posts included endorsement of the phony Obama "birtherism" controversy and links to alt-right and conspiracy-theory sites. The job, Franken noted, is "judge" and the job requires "judgment," which he said was lacking in Bush's blogging.
Thirty years ago, six Republican senators crossed party lines to add to the margin of defeat for Robert Bork's nomination to the Supreme Court. That was then, this is now. Franken's plea fell on deaf ears on the Republican side of the aisle. With political independence in short supply among GOP senators, a president who openly disdains the rule of law is on a path to leaving a lasting, black mark on the federal judiciary.
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