On May 10, President Trump nominated John K. Bush, a corporate lawyer in Louisville, Kentucky, to fill a seat on the Court of Appeals for the Sixth Circuit. Like other recent nominees, he fulfills the President’s pledge to outsource his constitutional role in nominating judges to the Federalist Society, the ultraconservative advocacy group that has taken over the judicial nominations process. Bush has deep ties to the organization, and in fact currently serves as the President of the Federalist Society’s Louisville Lawyers Chapter.
Bush’s nomination also seems designed to fulfill another pledge of the President’s—to weaken Constitutional protections for members of the press, whom the President has called “the enemy of the people.” Bush, like Trump, believes New York Times v. Sullivan, the seminal case that articulated broad protections for members of the press covering public officials and actions, was wrongly decided.
The President has not been shy about his belief that the First Amendment needs to be curtailed. In February 2016 then-candidate Trump remarked that if he became President, he would “open up our libel laws” so that “when The New York Times writes a hit piece which is a total disgrace . . . we can sue them and win money instead of having no chance of winning because they’re totally protected.” He promised that, if elected, “we’re going to have people sue [newspapers] like you’ve never got sued before.”
Of course, as others pointed out at the time, the Constitution does limit the President’s ability to successfully sue journalists he does not like. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that members of the press were protected from libel actions brought by public officials unless the publisher knew or recklessly disregarded whether the statement being published was false. Justice Brennan, writing for a unanimous Court, explained that this heightened protection was necessary because of this country’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Such debate, Justice Brennan wrote, “may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” Sullivan has been celebrated as “the clearest and most forceful defense of press freedom in American history.”
Perhaps recognizing he can’t unilaterally change the Constitution, the President has done the next best thing—nominated to the bench an individual who appears to agree with him that what this country needs is a press with less protection when it seeks to hold public officials accountable. Notably, Bush has said that New York Times v. Sullivan “was wrongly decided.” In fact, at a 2009 Federal Society panel entitled The Constitution and the Importance of Interpretation: Original Meaning, after praising originalism, he discussed originalism’s application to the First Amendment. Bush emphasized “from an originalist perspective that New York Times v. Sullivan probably wasn’t correctly decided.”
Bush’s comments about Sullivan, while disturbing at any time, must take on special significance at a time when President Trump is under a cloud of suspicion for his campaign’s ties to Russia and the fact that he has relentlessly attacked the press for investigating and reporting on the matter. Indeed, whether it is the investigation regarding Russia or any other investigative reporting by the press, the President has made clear his contempt for critical First Amendment protections. And it appears that President Trump may have found an ally in Bush on his crusade to change decades’ worth of precedent and limit the press’ ability to report freely on matters of grave public concern.
Bush’s statements raise serious doubts about whether he would uphold or correctly apply seminal Supreme Court precedent and whether he should be confirmed to a lifetime seat on one of the most influential courts in the Nation.