John Bush is a lawyer and the president of the Louisville chapter of the Federalist Society, an increasingly radicalized conservative legal group that’s played a major role in selecting Donald Trump’s nominees to the federal bench. Bush is also a blogger at a site called “Elephants in the Bluegrass,” where he’s written on subjects such as why slavery is like abortion or the virtues of shooting Obama supporters.
And, if President Trump has his way, Mr. Bush will soon add another title to his resume: judge of the United States Court of Appeals for the Sixth Circuit.
Bush, who boasts a conventional legal resume for a federal appellate nominee, revealed in response to a standard questionnaire the Senate Judiciary Committee provides to judicial nominees that he blogs at the Elephants in the Bluegrass site under the pseudonym “G. Morris.” And as “G. Morris,” Mr. Bush has been unusually open about his political and legal views for a potential federal judge.
For one thing, Bush appeared to suggest that deadly force is the appropriate response to Democrats engaged in minor transgressions. In a blog post titled “Take That!,” Bush shares this sign:
Bush also argued in a post titled “The Legacy From Dr. King’s Dream That Liberals Ignore” that “the two greatest tragedies in our country” are “slavery and abortion.” In that post, Bush claims that Dr. Martin Luther King, Jr. would have opposed Roe v. Wade had King been alive when that case was handed down. In reality, there’s no evidence that King — who supported efforts to increase access to birth control and said in 1960 that he’s “always been deeply interested in and sympathetic with the total work of the Planned Parenthood Federation” — would have stood against reproductive rights.
Despite Bush’s efforts to appropriate Dr. King into one of Bush’s pet causes, the Trump nominee has also appeared fairly dismissive of idea that a woman or minority could reach the White House without some unfair advantage. Reflecting on the 2016 Republican National Convention, Bush wrote that “the Democrats are trying to win with the same game plan as in 2008, only substitute woman for Black.”
Similarly, after the State Department announced that it would change passport application forms to refer to an applicants’ parents in a gender-neutral way — an acknowledgement of the fact that same-sex couples exist and some of them have children — Bush was outraged.
Complaining that the new forms ask the applicant to name their “Mother or Parent 1” and “Father or Parent 2,” Bush complained that “it’s just like the government to decide it needs to decide something like which parent is number one or number two. When that happens, both parents are subservient to the nanny state — more precisely, a nanny Secretary of State.”
His unusual political views aside, Bush has also expressed some equally unconventional views about legal matters that could come before him should he be confirmed to the federal bench.
In a 2008 blog post, Bush argues that “public financing of campaigns” is “constitutionally dubious” because it forces “taxpayers to subsidize candidates’ political speech in contravention of those taxpayers’ First Amendment rights.”
This is a bad interpretation of the First Amendment.
For one thing, many public financing programs are funded voluntarily by taxpayers, who indicate on their tax return that they are willing to have some of their tax dollars spent on public financing. In these programs, there’s no concern that a taxpayer will be “forced” to subsidize political speech.
But even when a public financing program isn’t entirely funded through taxpayers’ voluntary decisions to opt in, Bush’s analysis is hard to square with one of the most firmly established principles in First Amendment law. The government is, as Bush alludes to, prohibited from forcing people to express views that they do not wish to express, but it is not permitted from speaking in its own voice. As Justice Stephen Breyer wrote in a recent Supreme Court opinion, “when government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”
Without such an ability to speak in its own voice, Breyer explains, “government would not work.”
How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?”
A close corollary to this government speech doctrine is that the government can give grants to third parties, even though those parties may use that money to express a viewpoint. Suppose, for example, that the government decides to hire a private contractor to run a recycling program, rather than having public employees manage the program. Nothing in the First Amendment prohibits that contractor from using a portion of its grant to encourage people to recycle.
Bush’s rationale, in other words, wouldn’t just undermine public financing of campaigns — it would also hobble the government’s ability to perform many of its core functions. Under Bush’s view, it’s not even clear that a president or a governor could advocate for the policies that they support, since those policies may be opposed by taxpayers who pay the president or governor’s salary.
It’s worth noting, moreover, that Bush’s view of public financing and the government speech doctrine appears to be part of a broader vision of the First Amendment that bears little resemblance to existing law. Speaking at a 2009 event sponsored by the Federalist Society, for example, Bush suggested that a seminal Supreme Court decision protecting journalists from malicious libel suits (among other things) “probably wasn’t correctly decided.”
Trump, meanwhile, said that he is “going to open up our libel laws” if elected president so that he can go after reporters who write things he believes to be “horrible and false.”
In any event, Bush’s public statements and writings do not simply reveal political views that place him very far to the right. They also reveal legal opinions that are widely out of step with well-established law accepted by Democrats and Republicans alike. That’s not something that presidents typically look for in judicial nominees.
(HT: Alliance for Justice)