Rushing Confirmed to 4th Circuit on Partisan Vote

This week, the U.S. Senate voted to confirm Allison Jones Rushing to serve as a circuit judge on the 4th U.S Circuit Court of Appeals. Rushing has been a partner at Williams & Connelly since 2017 and is licensed to practice law in Virginia and the District of Columbia. She graduated magna cum laude from the Duke University School of Law in 2007 and clerked at the 10th Circuit (for then-Judge Gorsuch), the D.C. Circuit (for Judge Sentelle), and the Supreme Court (for Justice Thomas). She was endorsed by both of her home-state senators, North Carolina Republicans Richard Burr and Thom Tillis.

The vote was strictly along party lines, with no Democrats supporting Rushing’s confirmation. Noting that Rushing is just 36 years old, Democratic senators criticized her relative inexperience. Her nomination has also elicited condemnation from a coalition of 200 civil-rights organizations, based in part on her periodic affiliations with the Alliance Defending Freedom. The ADF’s mission is: “To keep the doors open for the Gospel by advocating for religious liberty, the sanctity of life, and marriage and family.” The Southern Poverty Law Center has designated the organization as a “hate group.”

A superficial committee hearing

Unfortunately, Rushing’s experience and ideology weren’t subject to full examination during her testimony before the Senate Judiciary Committee. Because Republicans scheduled her hearing during a pre-election Senate recess, only two committee members were present to ask questions: Orrin Hatch (R-Utah) and John Kennedy (R-Louisiana). Rushing testified for less than half an hour, though she later responded in writing to interrogatories from Democratic committee members.

To their credit, Hatch and Kennedy asked Rushing several good questions about her level of experience – both professional and personal – and her views on religious freedom. But in the modern tradition of judicial nominees, Rushing offered predictably bland responses designed to reveal little to no information of interest.

Kennedy, standing in for former Committee Chairman Chuck Grassley (R-Iowa), asked pointed questions about her litigation experience. In the four cases you litigated to trial-court judgment or verdict, were you lead counsel? (No, her practice is appellate-focused.) Where were you in the trial-team pecking order? Did you take testimony? (No.) What’s the worst mistake you ever made practicing law? (She’s grateful to her legal teams for preventing mistakes.) Why shouldn’t we be considering one of the more senior partners at Williams & Connelly instead of you? (They support her nomination.) Perhaps unintentionally, the senators’ overemphasis on trial litigation dominated Rushing’s heftier experience as an appellate lawyer. But Kennedy in particular noticeably retreated from lines of questioning with the potential for less-than-flattering testimony, like any good lawyer on direct examination.

Kennedy’s best questions were about who Rushing is as a person. “Tell me about your major disappointment in life,” he prompted. Noting her stellar professional resume, he emphasized he was asking about life experience. “Have you ever failed at something and had to just pick yourself up and put one foot down, and one foot after that?”

“I like to think that everything happens for a reason and that, even though things are disappointing, they turn out for the best. I was disappointed that I spent so much time focusing on my career instead of a family. But thankfully, I was blessed with a family as well,” Rushing said, as her 11-month-old son cooed in his father’s arms just behind her. “I know it’s very difficult sometimes for women in my profession to have both, to start a family when they’re also working hard at a big law firm.”

In written responses to Democrats, Rushing elaborated on the challenges lawyer-moms face, describing how she juggled multiple Supreme Court briefs during her pregnancy and had to present oral arguments while on maternity “leave” as a nursing mom away from her baby.

Cross-examinations are opportunities

Rushing didn’t get a real opportunity to prove her fitness in the context of adverse questioning, and that’s a shame – not least because she may well have been able to do so effectively. Instead, the irregular process of Rushing’s confirmation has created too much space to characterize her as a warrior for homophobic bigotry, oppressive Christianity, and right-wing causes in general. It’s a charge based on pretty tenuous inferences. But the record is likewise short on exonerating material.

Much of the criticism of Rushing takes the form of misplaced piling-on to one or two real concerns. First of all, her zealous advocacy for the interests of her firm’s corporate clients is exactly what her ethical obligations required in her practice. But in addition to stereotypical big-law positions, her litigation record also shows regular pro bono work for criminal defendants and civic organizations. Her disclosed group memberships are few and generally non-partisan. Since graduating from law school, she advised Mitt Romney’s 2012 presidential campaign but also canvassed for a Democratic state legislator who supported same-sex marriage at the time.

Yet Rushing’s affiliations with the ADF are a source of legitimate concern that could and should have been mitigated in person. The ADF was founded by a group of Christian leaders in 1994 in order to protect what they viewed as their freedom of conscience. The organization provides legal support to Christians said to face ostracism, censorship, or other legal consequences for acting on their religious beliefs. Explicitly positioning itself as an opponent of the American Civil Liberties Union, the ADF’s main policy priorities include restricting reproductive rights, opposing same-sex marriage, and protecting Americans’ rights to act on those beliefs. As Rushing repeatedly acknowledged in her written responses, the Supreme Court has explicitly held many of these goals, as matters of law, to be unconstitutional.

According to the SPLC, ADF supports the criminalization of homosexuality in the U.S. and abroad, and it defends efforts to exclude LGBTQ individuals from regular participation in society. To back up its claims, SPLC offers a long list of anti-gay quotes from members of ADF’s leadership throughout its history. The ADF disputes the “hate group” label but not, as far as I can tell, SPLC’s substantive characterization of its positions.

As expected, every Democrat asked about Rushing’s affiliation with this “hate group.” Her canned written response cried out for pushback:

Hate is wrong, and it should have no place in our society…. In my experience with ADF, I have not witnessed anyone expressing or advocating hate. A number of leading Supreme Court practitioners at well-regarded national law firms work with ADF. Members of Congress, including members of this Committee, have filed amicus briefs in the Supreme Court supporting ADF’s positions. I do not think members of this Committee or large reputable law firms would work with a hate group. I certainly would not.

Rushing interned with the organization back in the summer of 2005, after her 1L year of law school. The internship apparently led to co-author credit on an article by one of the group’s senior lawyers, arguing that Establishment Clause claims are too easy to assert in court. In her hearing testimony, Rushing said she primarily contributed research and analysis of the First Amendment, attributing the overall position and tone of the article to its primary author.

While Rushing’s 1L internship may be inconclusive (she also interned for the Department of Justice’s Office of Legal Counsel), she apparently has also accepted occasional paid speaking engagements arranged by ADF over the years. Her financial disclosures show a $1,750 honoraria from the group from as recently as 2017. So various senators tried to find out whether her personal views align with the group’s mission and priorities. Though she denied helping the group litigate claims against reproductive rights or same-sex marriage, Rushing’s responses were neither offensive nor reassuring:

As regards the alleged positions attributed to ADF [on reproductive rights and same-sex marriage], I am not aware of all of ADF’s policy or litigating positions, and for those positions of which I am aware, I do not recall when I learned of them. I do not work for ADF or have any official role with them. If I am confirmed as a judge on the Fourth Circuit, I will be bound by the precedent of the Supreme Court and the Fourth Circuit, including Roe v. Wade and Obergefell v. Hodges, among others. I will faithfully follow those precedents.

Rushing evaded an inquiry from Sen. Patrick Leahy (D-Vermont) about whether she believes, as the ADF says it does, “that marriage equality represents a threat to the ‘foundation of society,’ and risks ‘needless emotional and material hardships” for “women, children, and the underprivileged.'” In response to a similar question from Sen. Sheldon Whitehouse (D-Rhode Island), Rushing dodged: “I do not know what is meant by ‘homosexual legal agenda’ or a link between homosexuality and pedophilia.” One could be forgiven for suspecting she’s never wondered what those phrases mean to ADF.

On the other hand, Rushing agreed that homosexual individuals continue to experience discrimination in this country and said she is concerned about racial bias in the justice system. At the hearing, she also said it’s a constitutional problem whenever the government tries to enforce religious beliefs, giving as an example the compelled recitation of the Pledge of Allegiance and its “under God” phrase. This observation could have been an excellent impetus for further discussion of whether U.S. law should reflect its “Judeo-Christian” roots, as the ADF seems to argue, and whether Christianity accordingly deserves greater solicitude than other belief systems. For an experienced advocate like Rushing, the chance to answer such questions on camera may have served her well.

In confirmations past, a promise to follow binding precedent regardless of one’s individual politics might have been sufficient, and a nominee generally shouldn’t comment on particular legal issues they may be called to consider on the bench. But Senate Republicans couldn’t be more explicit in their goal of ensuring that all judges should be “conservative” – whatever that means in the Trump era. For members of the public who don’t identify as conservative, especially those who feel existentially targeted by certain conservative policy priorities (like those espoused by the ADF), this approach undermines public trust in the judiciary, perhaps irredeemably. In this context, it’s absurd to pretend that a nominee’s personal political, social, and moral views are beside the point or out of bounds.

Along these lines, Democrats also asked Rushing, a Federalist Society member for many years, to address that organization’s stated goals relating to “liberal” and “conservative” ideas. Of course, she declined to do so:

I did not write the Federalist Society’s website and have never been employed by the Federalist Society. I am not aware of the Federalist Society’s understanding of the quote referenced in the question….

I am not aware of what the Federalist Society means by the phrase “traditional values.” …I joined the Federalist Society because attorneys I knew were involved with the Society and I appreciated the diversity of viewpoints presented at their continuing legal education events.

Judges constantly tell advocates not to ignore facts or authority adverse to their client, and they definitely don’t appreciate it when counsel won’t answer direct questions during argument. At best, it makes one look unprepared; at worst, deceptive. Rushing is surely well aware of these dynamics. Is it impossible to be minimally forthright about one’s political worldview in a good-faith effort to persuade skeptics that, despite holding personal opinions just like everyone else does, one can still be an effective, fair, and trustworthy public servant for all?

The prevailing incentive scheme suggests it is impossible. So, like most other judicial nominees, Rushing and those shepherding her confirmation process concluded that the best strategy was to say as little as possible and hope for the benefit of the doubt from enough of the right people. They probably were correct.

But we should be pursuing a more honest system. Senators should push nominees less on specific legal questions and more on how, especially in a hyper-polarized political environment, they reconcile their personal experiences and ideology with the concept of judicial neutrality. To be confirmed, a nominee should have to demonstrate through in-person testimony that they’ve at least thought about that tension carefully. We might never really know if Judge-Designate Rushing has, let alone what she might have come up with. And that’s too bad.

Categories: Essays, News

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