Trump's judicial nominee from Louisville ducks questions about his controversial blog posts

Courier Journal

Trying to save his nomination to a federal appeals court, Louisville attorney John K. Bush has evaded questions about blog posts in which he equated abortion with slavery as America’s greatest tragedies, denounced gay marriage and embraced other conservative views.

Responding to written questions from members of the Senate Judiciary Committee about his more than 400 posts on hot-button issues, Bush repeatedly said “my personal views are irrelevant to the position for which I have been nominated.”

He refused to answer questions about commentaries in which he criticized public financing or raised doubts about global warming, saying the questions call "upon me to weigh in on a political debate, which I cannot ethically do as a nominee for judicial office.”

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Asked why he joined the Federalist Society, a conservative legal group whose Louisville chapter he co-founded, he said, “I believed that membership ... would help me learn about interesting legal topics that I might not otherwise encounter in my practice.”

Bush, who was nominated by President Donald Trump for a lifetime appointment on the 6th U.S. Circuit Court of Appeals, appeared before the Judiciary Committee on June 14 and responded to additional questions June 21. No date has been set for the committee’s vote on his nomination.

Carl Tobias, a law professor at the University of Richmond who follows judicial appointments, said that even some Republicans “seemed troubled” at Bush's posts and his refusal to explain them at his hearing. Republican Sens. John Kennedy of Louisiana and Thom Tillis of North Carolina expressed concern about his ability to be impartial. Tobias said Bush’s written answers “are no better.”

Nan Aron, founder and president of Alliance for Justice, a national coalition of 100 groups committed to creation of an "equitable, just and free society," said Bush was given "multiple opportunities to put everybody at ease about his crude, coarse and insensitive blog posts but rather than do that, he confirmed fears on the part of both Democrats and Republicans about his lack of judgment and temperament."

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Bush, a partner at Bingham Greenebaum Doll, didn't respond to a request for comment. But a spokesman for Sen. Mitch McConnell, who recommended him for the nomination, noted at his hearing that more than 100 attorneys and law professors from around the country — at least one-third of them Democrats — wrote in support of his nomination and his capacity to approach issues with an open mind.

“Mr. Bush, as we all do, has his own personal views about politics, which he enjoys discussing," testified McConnell, the Senate majority leader. "But this has not diminished the professional esteem in which his colleagues hold him ... nor their firm belief that he will follow the law."

Liberal legal activists have zeroed in on Bush’s response to a question about a remark in which he said “originalism” — interpreting the Constitution as written — is “the only principled way” because it is “better than other approaches.”

Asked by Sen. Diane Feinstein, D-Calif., whether judges should always employ an originalist approach, Bush responded: “My personal views on constitutional interpretation will be irrelevant if I am fortunate enough to be confirmed to the Sixth Circuit." He added: “As a lower court judge, I would be bound to apply the precedents of the Supreme Court and Sixth Circuit in deciding any question of constitutional interpretation that comes before me.”

Kyle Barry, senior policy analyst for the NAACP Legal Defense Fund, tweeted that Bush’s response was “laughable,” adding in an interview that there often are no precedents in many cases that come before federal appeals courts.

Glenn Sugameli, an attorney and founder of “Judging the Environment” who has tracked judicial nominees since 2001, called it “the most absurd response by a judicial nominee ever.”

“It is either absurd or dishonest or both,” Sugameli said, noting that appeals courts can reverse precedent when all of the court’s judges hear a case together.

“A judge’s views on constitutional law do matter,” Sugameli said.

Bush wrote under a pseudonym from 2007 to 2016 on “Elephants of the Bluegrass,” a blog hosted by his wife, Bridget Bush, a lawyer and columnist. The Courier-Journal reported last month that in one of them he called Republican presidential candidate Ted Cruz a sore loser and Matt Bevin, now governor, “just ignorant.”

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Asked by several senators why he wrote the posts under an assumed name, Bush said it was to “draw a distinction between my political views and my law practice.” He also noted that other lawyers and judges have written under pen names, including the first chief justice, John Jay.

Bush told the committee that he wished he had worded some of the posts differently, including one in which he referred to then-House Speaker Pelosi as “Mama Pelosi,” which he described as “a regrettable reference to her leadership position.”

In his written responses, Bush conceded that many of his posts “used flippant or intemperate language that does not accurately reflect my demeanor or legal abilities.”

Asked how he could assure Democrats, gay people and other litigants whom he derided in posts that he would be impartial as a judge, Bush recited the judicial oath — saying he would “administer justice without respect to persons” and “faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States.”

Many of the questions focused on Bush’s 2008 post in which he wrote that the “two greatest tragedies in our country — slavery and abortion — relied on similar reasoning and activist justices at the U.S. Supreme Court,” first in the Dred Scott decision in 1857 that slaves could never be citizens and later in Roe v. Wade, in which the court in 1973 declared a constitutional right to abortion.

Grilled at his hearing on why he regards Roe as a tragedy, Bush would only say “it divided our country.”

“Do you believe that abortion is a ‘tragedy’ in any sense than what you described at your hearing?” asked Sen. Richard Blumenthal, D-Conn., in a follow-up question.

“My personal views about the correctness of or prudence of any particular Supreme Court decision are irrelevant,” Bush responded, though he said Dred Scott was wrongly decided.

“Do you believe it is a tragedy when women are unable to access safe, legal reproductive care?” Blumenthal pressed.

Bush directed him to his previous answer.

Sen. Dick Durbin asked Bush about an assertion on the Federalist Society’s website that law firms and the legal profession are “strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.”

“Do you agree with this statement?” Durbin asked Bush, who co-founded the Louisville chapter of the group in 1997 and has attended multiple national annual meetings.

“I don’t know what the Federalist Society was referring to in that statement,” Bush said.

Aron, the Alliance for Justice leader, said she hopes some Republicans join with Democrats in blocking Bush's nomination, but she was not optimistic.

"Given that he is McConnell's guy," Aron said, "I am sure McConnell will go to great lengths to see that Republicans close ranks around this nominee."

Tillis and Kennedy already have come around and now say the will support Bush.

"His academic credentials are impressive, and after talking to people who know Mr. Bush better than I do, I believe he will be an impartial, just-call-the-balls-and-strikes judge," Kennedy said in a statement issued by his office.

Reporter Andrew Wolfson can be reached at 502-582-7189 or awolfson@courier-journal.com.