AF J NOMINEE REPOR T U.S. Court of Appeals for the Sixth Circuit
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john AFJ NOMINEE REPORT AFJ k. bush U.S. Court of Appeals for the Sixth Circuit WWW.AFJ.ORG CONTENTS Introduction, 1 Biography, 2 Judicial TEMPERAMENT, 4 legal and other views, 8 Executive Power, 8 Women’s Rights, 9 LGBTQ Rights, 11 First Amendment, 11 Money in Politics, 13 Conclusion, 14 WWW.AFJ.ORG PAGE 1 paperwork he submitted to the Senate Judiciary Committee, Bush explained INTRODUCTION that in November 2016, presumably after the presidential election, he met with On February 28, 2017, Judge Danny Boggs took Senator McConnell in Louisville where senior status, and on May 8, 2017, President Bush “expressed [his] interest in serving Trump nominated John K. Bush to fill the vacancy as a federal judge.”1 Bush said that he has on the United States Court of Appeals for the “been in contact with Leader McConnell Sixth Circuit. Alliance for Justice strongly opposes and representatives from his office since Bush’s nomination to the United States Court of that time.”2 Appeals for the Sixth Circuit. It’s also notable that President Trump Examined on his own merits, Bush is a deeply nominated Bush only two months after flawed candidate with a history of offensive a vacancy arose on the Sixth Circuit, writings and statements that under ordinary leapfrogging vacancies on other courts that circumstances would quickly disqualify him for have existed for years. When a vacancy a role on the federal bench. Not the least of opened on the Sixth Circuit in 2013, these is a talk he gave to a private Louisville club Senators McConnell and Rand Paul refused in which, stunningly, he chose, according to his to reach an agreement with President written notes, to recite and apparently condone Obama on a nominee. The seat sat vacant a quote by another author that employs an anti- for over 1,200 days after McConnell and gay slur: “I come here every year, and let me tell Paul refused to return their blue slips on you one thing I’ve learned—this is no town to be the unanimously well-qualified jurist Obama giving people the impression you’re some kind eventually put forward.3 of faggot.” Bush also has likened a woman’s right to decide whether to have an abortion to slavery, *** peddled discredited conspiracy theories about President Barack Obama, called for Nancy Pelosi While this report covers Bush’s legal to be “gag[ged]” when she made comments he views and highlights of his private disagreed with, and decried a change to passport practice, as is customary, it also focuses forms that accounted for same-sex parents. on his extraordinary and prolific blogging history, which provides many of the most Despite his obvious lack of fitness for a lifetime egregious examples of the offensive views appointment to the federal bench, Bush’s and statements that disqualify him for significant ties to Senate Majority Leader Mitch service on the bench. These blog posts McConnell appear to have greased the skids 1 Sen. Comm. on the Judiciary, 115th Cong., John Kenneth Bush: Questionnaire for for his nomination. Most notably, Bush’s wife, Judicial Nominees 45, https://www.judiciary.senate.gov/imo/media/doc/Bush%20SJQ. pdf. Bridget, has been extremely active in fundraising 2 Id. 3 See Press Release, The White House, President Obama Nominates Justice efforts that netted millions of dollars to benefit Lisabeth Tabor Hughes to Serve on the United States Court of Appeals (Mar. 17, 2016), https://obamawhitehouse.archives.gov/the-press-office/2016/03/17/presi- Senator McConnell’s 2014 reelection bid. In dent-obama-nominates-justice-lisabeth-tabor-hughes-serve-united; Joseph Gerth, Mc- Connell rejects Obama choice of Ky judge, COURIER-JOURNAL (Mar. 18, 2016), http:// addition, in 2002 Bush authored an amicus www.courier-journal.com/story/news/politics/2016/03/18/mcconnell-says-he-kill-6th-cir- cuit-nomination/81971446/; Jennifer Bendery, Republicans Aren’t Even Pretending They brief on McConnell’s behalf in a case involving Want To Confirm Judges Anymore, THE HUFFINGTON POST (June 28, 2016), http:// www.huffingtonpost.com/entry/senate-republicans-obama-judges_us_576426b6e4b- Kentucky’s campaign finance laws. And, in 0853f8bf0a4fa. WWW.AFJ.ORG PAGE 2 provide a unique window into his views and Circuit.5 Bush then joined Gibson, Dunn temperament. Given that Bush wrote these & Crutcher LLP in Washington, D.C. as an pieces—over 400 in total—under a pseudonym, associate.6 After six years at Gibson, Dunn & it’s reasonable to assume that he used blogging Crutcher, Bush joined Bingham Greenbaum as an outlet to express his unvarnished Doll.7 However, as this report outlines in opinions. following sections, Bush’s resume only tells part of the story. Professional credentials These writings are significant for several aside, his deep-seated prejudices and reasons. They not only reveal his character lack of judicial temperament render him but also show Bush’s adherence to a fixed, unqualified for a lifetime position on the ultraconservative political ideology. Most federal bench. importantly, they leave the unmistakable impression that Bush would be incapable Bush is currently employed as a partner at of serving as a fair-minded jurist, and of Bingham Greenbaum Doll LLP, where he maintaining public confidence in the justice serves as the Litigation Department Co- system’s ability to dispense even-handed Chair and Team Leader of the Antitrust and justice to all. It is one thing to embrace extreme Financial Institution Litigation.8 During his political views, which Bush certainly does. It is time in private practice, Bush has primarily another matter entirely to employ the crude represented large corporate clients in and distasteful rhetoric Bush uses when writing matters involving anti-trust, securities, under a pseudonym, when he presumably intellectual property, and product liability.9 believes his identity is shielded. His writing Bush has represented large tobacco reveals a genuinely shocking lack of civility companies in disputes over the Master and respect for individuals with whom he Settlement Agreement (“MSA”). The MSA disagrees politically as well as those of different arose out of litigation about tobacco ethnicities, genders, or sexual orientations. The companies’ “advertising strategies, which American people would be gravely at risk as a allegedly misled consumers as to the result of confirming this individual to a lifetime harmful and addictive effects of tobacco appointment to one of the most influential and inappropriately targeted underage courts in the country. consumers.” VIBO Corp. d/b/a General Tobacco v. Conway, 669 F.3d 675, 680 (6th Cir. 2012). Under the MSA, major biography tobacco companies made large settlement payments, agreed to future annual monetary At first blush, John K. Bush appears to have disbursements, and agreed to restrict certain some of the professional credentials one advertising practices. Id. at 680–81. In one would expect of a prospective federal judge: case, Bush represented General Tobacco, a He received his undergraduate degree from large tobacco company, in a lawsuit alleging Vanderbilt University and his law degree from als/866/john-k.-bush/. 4 5 Id. Harvard Law School in 1989. After law school, 6 Id. 7 Sen. Comm. on the Judiciary, 115th Cong., John Kenneth Bush: Questionnaire for Bush clerked for Judge J. Smith Henley on the Judicial Nominees 2, https://www.judiciary.senate.gov/imo/media/doc/Bush%20SJQ.pdf. 8 John K. Bush, BINGHAM GREENBAUM DOLL LLP, https://www.bgdlegal.com/profes- United States Court of Appeals for the Eighth sionals/866/john-k.-bush/. 4 John K. Bush, BINGHAM GREENBAUM DOLL LLP, https://www.bgdlegal.com/profession- 9 Id. WWW.AFJ.ORG PAGE 3 that the MSA violated several provisions of the was designed to maintain racial diversity Constitution, including the Equal Protection and in Louisville-area schools after the district Due Process Clauses, and ran afoul of antitrust court dissolved the original desegregation law. See id. at 683. The Sixth Circuit rejected all decree from 1975.13 The Supreme Court of General Tobacco’s claims. See id. at 692. struck down the student assignment plan in Parents Involved in Cmty. Sch. v. Seattle Bush also has represented numerous corporate Sch. Dist. No. 1, 551 U.S. 701 (2007). clients in challenging punitive damage awards, frequently arguing that punitive damage awards Since 1997 Bush has served as the are excessive and not properly controlled by the president of the Louisville Lawyers’ judiciary.10 Chapter of The Federalist Society. In addition, Bush has handled several notable From 2006 to 2011, Bush also was non-corporate matters. For example, he was a a member of the Pendennis Club of member of the legal team that represented Stacy Louisville. The Pendennis Club was Koon, a police officer involved in beating Rodney founded in 1881 as an all-white, all-male King, at the Supreme Court.11 The Koon case private social club.14 For most of its history, was one of only two identified criminal cases the club was closed to people of color, that Bush has worked on. In the second, Price v. women, and Jewish people.15 The club Commonwealth, No. 2016-CA-000865-MR, 2017 has been described in the past as an “all- Ky. App. Unpub. LEXIS 319 (May 5, 2017), Bush white, all-male bastion of old-line money defended a former pastor who was found guilty and influence,”16 “whose members clung of sexual abuse and rape. Bush also represented to old notions of Southern white privilege Ronald Reagan during the Iran-Contra for decades after the end of Jim Crow.”17 In investigation; he filed a brief against