Yesterday, former U.S. District Court Judge for the Southern District of New York Shira Scheindlin authored an op-ed in the New York Times lambasting President Trump’s judicial nominees, proclaiming them to be “crazy choices” who are “outside the mainstream.” Scheindlin’s op-ed is replete with factual inaccuracies and misrepresentations about President Trump’s judicial nominees and their records. One whopper is that liberals accepted most of President George W. Bush’s nominees “as credible and qualified” when in fact they waged wholesale, indiscriminate filibusters of his circuit court nominees—opposition so intense that it marked an unprecedented level of obstruction to the judicial nomination process.
Most ironic though is Scheindlin’s assertion that President Trump’s nominees have “demonstrated a willingness to overturn longstanding judicial decisions.” Scheindlin, an appointee of President Clinton, is one of the most activist federal judges in modern history. While presiding over a stop-and-frisk case in 2013, she was notoriously rebuked by the a three judge panel of the U.S. Court of Appeals for the Second Circuit for her “appearance of impartiality surrounding [the] litigation” in giving a “series of media interviews and public statements purporting to respond publicly to criticism of the District Court.” The Second Circuit panel found that Scheindlin violated the Code of Conduct for United States Judges and ordered her removal from the case.
But let’s turn to the substance—if one can call it that—of Scheindlin’s op-ed. First and foremost, President Trump’s outstanding judicial nominees have been repeatedly praised and are considered to be one of the greatest successes of his presidency to date. Jonathan Adler, a member of the group “Writers and Scholars Against Trump” and no ally of the President, has described the President’s nominees as “impressive” and “incredibly strong.” President Trump’s nominees to the U.S. Courts of Appeal include numerous former Supreme Court clerks, current state and federal jurists, reputed academics, and attorneys with extensive experience in private practice and at the highest levels of government. Scheindlin claims that Senators Kennedy and Cornyn have expressed “dismay” about the President’s nominees, yet both Senators have voted in support of each and every one of the President’s judicial nominees to date—both within the Senate Judiciary Committee and on the Senate floor in confirmation votes.
Among Scheindlin’s misleading claims is that the President’s judicial nominees will refuse to follow binding precedent. In support of this argument, Scheindlin cites U.S. Court of Appeals for the Sixth Circuit Judge John Bush’s past critique of the Supreme Court’s opinion in Roe v. Wade and U.S. Court of Federal Claims nominee Damien Schiff’s past criticism of the Court’s ruling in Grutter v. Bollinger. Scheindlin suggests that, because a nominee has criticized the reasoning of a Supreme Court decision in his or her capacity as a private practitioner or scholar, that nominee necessarily will refuse to follow precedent if confirmed to the bench. This is an unwarranted leap in logic and an unfair accusation. On the contrary, during their respective Senate Judiciary Committee hearings, each of the President’s nominees testified that he or she would faithfully apply all binding and applicable precedents.
Scheindlin asserts that L. Steven Grasz, nominee to the U.S. Court of Appeals for the Eighth Circuit is among the “least qualified” and most “bizarre” of President Trump’s nominees, referencing his “not qualified” rating from the American Bar Association. I’ve written previously about the illegitimacy and bias of the ABA rating process in general, and the problems with the Grasz rating in particular. Last week Senate Judiciary Committee Chairman Chuck Grassley said that Grasz’s ABA rating is “very surprising” given the fact that Grasz appears to be “eminently qualified” to be a federal court of appeals judge and has called the ABA to testify to the Committee about its process in rating Grasz. Scheindlin further suggests that Grasz’s affiliation with the Nebraska Family Alliance, a faith-based organization, renders him unqualified to serve as a federal judge. With this criticism, Scheindlin joins the ranks of those who seem to believe that religious tests for public office are appropriate notwithstanding the Constitution’s specific prohibition in Article VI.
Some of Scheindlin’s most egregious misrepresentations relate to the nomination of Amy Coney Barrett, now judge for the U.S. Court of Appeals for the Seventh Circuit. Scheindlin’s op-ed claims that, “In a 1998 article, [Barrett] criticized the Supreme Court Justice William Brennan for saying that his oath to uphold the law trumped any obligation to his Roman Catholic faith.” As Judge Barrett herself explained during her hearing before the Senate Judiciary Committee, and John Garvey, the co-author of the 1998 law article has written, Scheindlin’s summarization of Barrett’s and Garvey’s article could not be more wrong. On the contrary, the article argues that Catholic judges who morally disagree with the death penalty have an obligation to recuse themselves from cases if they are unable to render a decision in conformity with the facts and the law. According to Barrett and Garvey, “There is a real moral cost to undermining the legal system, even in small ways.”
Scheindlin’s invocation of Justice Brennan is particularly head-scratching when one considers that the liberal icon, going a step beyond the limited context of Barrett’s article, issued numerous dissents from denial of certiorari because of his moral views on the issue despite the clear legality of the death penalty. Moreover, Brennan was part of the Court that summarily rejected a claim in Baker v. Nelson (1972) of a constitutional right to same-sex marriage, deeming it insufficiently serious to warrant a judicial opinion. Brennan would have failed Scheindlin’s litmus test.
Scheindlin further contends that Judge Barrett “has stated that judges need not adhere to precedent if they believe a case was wrongly decided.” This is a gross misrepresentation of Judge Barrett’s scholarly work and directly contradicts her sworn testimony to the Senate Judiciary Committee about her perception of her own role a circuit court judge. As a law professor at Notre Dame, Barrett wrote several law review articles about stare decisis, arguing that the Supreme Court should take a more flexible approach in balancing various Constitutional concerns. But at her hearing in September, Barrett was very clear that she views circuit court judges as bound by Supreme Court precedent, testifying: “I understand circuit judges to be bound absolutely by the precedent of the Supreme Court. The obligation is absolute.”
Without any substantiation, Scheindlin speculates that U.S. District Court nominee Thomas Farr’s previous nomination by President George W. Bush was “probably” not advanced by the Senate Judiciary Committee “because of his longstanding ties to racist politicians, and because of his opposition to voting rights, workers’ rights and economic inequality.” Farr was first nominated in December 2006 immediately following the Democratic takeover of the U.S. Senate and then re-nominated in 2007 after his 2006 nomination expired with the 108th Congress. Another possible explanation for Farr’s lack of advancement beyond the Senate Judiciary Committee: A decades-long pattern of obstructionism by Senate Democrats. Scheindlin writes that President Trump’s “judges and nominees do not reflect mainstream traditions and values.” But it is really the Senate Democrats (and Scheindlin herself) who are out of the mainstream. For the first time in history, the minority party has indefensibly required a cloture vote for nearly every single one of the President’s judicial nominees, attempting to waste as much floor time as possible. Senate Majority Leader Mitch McConnell has demonstrated that the Democratic minority’s obstructionist tactics will not prevail and that President Trump’s well-qualified nominees will be confirmed.