Damien Schiff—who has called Justice Anthony Kennedy a “judicial prostitute” —has been nominated by President Trump to be a judge on the U.S. Court of Federal Claims (“CFC”). As this report demonstrates, rarely has there been a nominee who is so sorely unfit to serve as a judge.
Remarkably, attacking the integrity of a Supreme Court justice is just one example of Schiff’s character. He also has repeatedly disparaged environmentalists, LGBTQ advocates, union organizers, and legal scholars, among others.
He unquestionably lacks the temperament to be a fair and unbiased judge anywhere, let alone on the CFC, where he could serve several terms, potentially remaining for decades. The court has been called the “keeper of the nation’s conscience”2 and “the People’s Court”3 and hears monetary claims against the U.S. Government deriving from the Constitution, federal statutes, executive regulations, and civilian or military contracts. Moreover, judges on this court have been elevated to federal courts of appeals in the past.
Besides his disqualifying temperament, Schiff himself has emphasized that he would not be a neutral jurist. He sees the role of the judge not to apply facts to law, but to advance an agenda. He has called for a “reinvigorated constitutional jurisprudence, emanating from the judiciary” which “could well be the catalyst to real reform, as opposed to that reform coming from other branches.” He has written that the “the President is hampered by the modern administrative state” and “Congress, as a collective body of 535 persons, cannot act effectively.” But, “the Supreme Court, with just five votes, can overturn precedents upon which many of the unconstitutional excrescences of the New Deal and Great Society eras depend.”
Schiff is a member of The Federalist Society and is a lawyer for the Pacific Legal Foundation (PLF), a group whose goal, PLF’s Vice President of Litigation admitted, is to “get rid of the regulatory state established by F.D.R.’s New Deal.” PLF brings sweeping challenges to fundamental protections for the environment, workers, and victims of discrimination, and Schiff’s practice has been devoted to weakening environmental laws and other legal protections.
Indeed, as this report demonstrates, Schiff holds extremist views regarding property rights and the ability of government to protect the health and safety of the American people. He has dedicated his career to undermining protections for clean air, clean water, and wildlife. He believes that federal land should be sold, including Yosemite National Park to Walt Disney. And, he believes persons who don’t use public schools should not have to pay for educating our children, noting “[w]hy should folks have to pay for somebody else’s education, or for facilities that they themselves do not use?” He believes corporations should have even more unchecked power. For example, he believes the Occupational Safety and Health Act (OSHA) is unconstitutional.
It is no surprise that a nominee who wrote “that the only useful [sic] metric for gauging success is money” has simultaneously questioned free speech rights for individuals while advocating for greater corporate spending in elections. Namely, he has criticized the “progressivist argument” that “having lots of speech generally is always a good thing,” but declared that what our nation needs is more corporate money in our politics saying “corporate speech adds value to a democratic society” and “their speech . . . should be encouraged, not censored.”
While extolling the rights of corporations and property owners, Schiff has minimized other essential constitutional protections. For example, he has vigorously opposed civil rights for LGBTQ Americans, including opposing Lawrence v. Texas, marriage equality, and even efforts to prevent LGBTQ children from being bullied at school. And, his record on issues involving persons of color and women are just as troubling. He has written that court decisions that upheld racial equity programs were comparable to Dred Scott, Plessy, and Korematsu. His assertion that policies designed to ensure equal opportunities for minorities and women are comparable to court decisions upholding slavery, Jim Crow, and the internment of Japanese Americans is self-evidently absurd and offensive, as is his belief that the experience of Americans dealing with the Environmental Protection Agency is akin to slavery.
He also has opposed efforts to ensure equal opportunity for women under Title IX, believing its application to high school athletics is unconstitutional. And he is a strong opponent of the right of a woman to decide whether to have an abortion.
The fact of the matter is, on issue after issue, Damien Schiff wants to use his prospective position as a judge to roll back essential protections and prevent local officials, states, and the federal government, including Congress, from addressing issues of public policy and the critical needs of the American people. He is temperamentally unfit to serve as a judge, and his views are dangerous—regularly rejected by even the most conservative federal judges. He simply should not serve as a federal judge.