Here’s a pro tip. If you are a judicial nominee, and you have to spend much of your confirmation hearing denying that you endorsed birtherism, maybe “judge” isn’t the ideal job for you.
And yet John Bush, a lawyer and conservative blogger who spent years publishing many of his most controversial opinions under a pseudonym, is in line to be a judge on a powerful federal appeals court. Given Bush’s prolific history as a political blogger, those opinions were on full display during his confirmation hearing on Wednesday.
Birtherism came up after Sen. Al Franken (D-MN) noted a blog post where Bush relied heavily on World Net Daily, a conservative site famous for touting conspiracy theories such as the birther libel against President Obama. In the post — which bears the grammatically-dubious title “‘Brother’s Keeper’ — As In, Keep That Anti-Obama Reporter In Jail!” — Bush touted a World Net Daily story claiming that one of the publication’s reporters was being held by immigration officials in Kenya after the reporter went there to investigate Obama’s Kenyan half-brother.
The post implied, without explicitly stating, that then-Sen. Barack Obama bore some responsibility for this reporter being detained. In any event, Bush felt that he needed to distance himself from the birther website he once cited, telling Franken that “I was certainly not intending to endorse any views of another group, as far as birtherism goes,” when he wrote this particular blog post.
Questionable citations aside, many of Bush’s other blog posts stated much more directly how the judicial nominee views the world. In one post in particular, for example, Bush claimed that “the two greatest tragedies in our country” are “slavery and abortion.”
After Sen. Dianne Feinstein (D-CA) asked Bush if he still held this view, Bush attempted to paint his views on Roe v. Wade as relatively innocuous. “I believe that [Roe] is a tragedy,” he said, “in the sense that it divided our country.”
Later in the hearing, however, Bush revealed that he either does not believe that all divisive decisions are tragic, or that he has a very poor command of American history.
“Wouldn’t you characterize Brown v. Board of Education,” Sen. Dick Durbin (D-IL) asked Bush, as “a case that divided our country?” In response, Bush first pled ignorance, then gave an historically-inaccurate answer.
“I wasn’t alive at the time of Brown,” Bush said. “But I don’t think it did.”
In reality, Brown is probably second only to Dred Scott v. Sandford, which played a major role in sparking the Civil War, among the Supreme Court’s most divisive decisions. Multiple books have been written on the Southern white backlash triggered by Brown — including two chapters of my own book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.
Even before the decision was handed down, Justice Hugo Black, a former Alabama senator, told his colleagues that violence would inevitably follow a decision ending public school segregation, and he relayed former justice and then-South Carolina Gov. Jimmy Byrnes’ warning that the state might “abolish [its] public school system” before it abided by such a decision.
Southern lawmakers demanded “massive resistance” to Brown. Many signed a “Southern Manifesto” accusing the Court of stirring up “chaos and confusion in the states principally affected.” Massive resistance proved so successful that, ten years after Brown, only one in 85 Southern black students attended an integrated school.
In fairness, Bush’s ignorance of American civil rights history, while certainly not an optimal trait in a judge, might not prevent him from performing the core responsibilities of an appellate jurist. Typically, judges spend far more time parsing statutory language and consulting legal precedents than they do digging into political history.
But Bush is not like most people named to the federal bench. In a 2009 panel hosted by the conservative Federalist Society — an organization which has played a major role in selecting Trump’s judicial nominees — Bush aligned himself with originalism, the belief that the only valid way to interpret the Constitution is to apply its text in the way those words were originally understood at the time they were drafted.
Whatever the virtues or demerits of originalism as an interpretive method, it only works if the judges applying it have a deep command of history and the skills necessary to sort good historical arguments from bad ones. After all, how can someone figure out the original meaning of a text if they don’t understand the historical and political context that brought that text into being?
The fact that Bush knows so little about one of the most famous judicial decisions in American history does not suggest that he is up to this task.
Franken, Feinstein, and Durbin are, of course, Democrats. And Bush will be confirmed unless some of Trump’s fellow Republicans break with him on this nominee. At least one Republican senator did appear uncomfortable with Bush’s nomination, however, during the hearing.
“I’ve read your blogs,” Sen. John Kennedy (R-LA) told Bush. “I’m not impressed.”