Flashback: Lower Court Nominee Once Called Justice Kennedy A ‘Judicial Prostitute’

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Kevin Daley Supreme Court correspondent
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President Donald Trump’s first nominee to the U.S. Court of Federal Claims, Damien Schiff, once described Justice Anthony Kennedy as a “judicial prostitute” in a blog post written a decade ago.

Schiff is a lawyer at the Pacific Legal Foundation, a conservative public interest practice that litigates property rights cases. He blogged for years at a site called Omnia Omnibus. His posts generally concerned topics in law and public policy relevant to the news.

Politico reported his inflammatory remarks came in response to a 2007 SCOTUSblog post advancing the common characterization of the justice as the Court’s “swing vote.”

The post, written at the 2006-2007 term’s conclusion, noted that the justice had voted in the minority just twice, and had been in the majority in every one of the court’s 5-4 decisions during that term. Schiff, like others, argued that Kennedy is less the thoughtful moderate of his public image, and more a directionless pseudo-jurist eager for praise from his colleagues and the legal academy.

“It would seem that Justice Kennedy is (and please excuse the language) a judicial prostitute, ‘selling’ his vote as it were to four other Justices in exchange for the high that comes from aggrandizement of power and influence, and the blandishments of the fawning media and legal academy,” he wrote.

“Perhaps the legal media would better serve the republic if, instead of perpetuating the myth of the ‘Great Sphynx of Sacramento,’ it excoriated the justice for trying to be a statesman and a legislator in the wrong branch,” he added. Kennedy was a solo practitioner in northern California prior to his appointment to the 9th U.S. Circuit Court of Appeals.

Schiff disclosed his blog writings on the questionnaire he submitted to the Senate Judiciary Committee.

Schiff’s nomination could adversely affect the administration’s quiet efforts to coax Kennedy into retirement. The White House has placed former Kennedy law clerks into prominent positions around the government. Justice Neil Gorsuch, a Trump appointee to the Supreme Court, is also an alum of Kennedy’s chambers. The strategy is offered as a signal that Kennedy can trust the administration to select his successor.

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