Bush's confirmation hearings were controversial as it was revealed that he had authored pseudonymous blog posts in which he opposed gay rights, abortion, and cited alt-right websites promoting birtherism and other false right-wing conspiracy theories.[2][3][4] He was confirmed in the Senate by the Republican majority on a 51–47 vote in July 2017.[5]
On May 8, 2017, President Donald Trump nominated Bush to the United States Court of Appeals for the Sixth Circuit seat vacated by Judge Danny Julian Boggs, who assumed senior status on February 28, 2017.[8][9][14] A hearing on his nomination before the United States Senate Committee on the Judiciary was held on June 14, 2017.[15] On a questionnaire submitted to the committee, Bush acknowledged that between 2007 and 2016, he had pseudonymously authored approximately 400 blog posts on Elephants in the Bluegrass, a blog founded by his wife, Bridget.[3] His blog posts expressed opposition to gay marriage, the Affordable Care Act, public financing of political campaigns, and the idea of trying terrorists in civilian courts.[16][4] Bush also compared abortion to slavery, and cited media reports containing "birther" falsehoods about Barack Obama's citizenship.[4][2][17][18] When questioned about his blogging during his judicial nomination process, Bush said that "my personal views are irrelevant to the position for which I have been nominated" and that "blogging is a political activity. It is not appropriate to bring politics to the bench."[19][12][13] On July 13, 2017, his nomination was reported out of committee by a 11–9 vote.[20]
On July 19, 2017, the United States Senate invoked cloture on his nomination by a 51–48 vote.[21] The following day, he was confirmed by a 51–47 vote.[22] He received his judicial commission on July 21, 2017.[23]
Notable cases
Abortion
Bush authored the opinion in EMW Women's Surgical Center v. Beshear (2019), in which the Sixth Circuit upheld, 2–1, a Kentucky law compelling physicians to show and describe a fetal ultrasound to patients before performing an abortion.[24][25] The law, part of a years-long effort to restrict abortion access in Kentucky,[26] had previously been deemed unconstitutional by a lower court.[25] Bush wrote that the law "provides truthful, non-misleading, and relevant information aimed at informing a patient about her decision to abort unborn life". Judge Alan Eugene Norris joined Bush's opinion; Judge Bernice B. Donald dissented, writing that the Kentucky law "has coopted physicians' examining tables, their probing instruments, and their voices in order to espouse a political message, without regard to the health of the patient or the judgment of the physician".[24][25] On December 9, 2019, the Supreme Court declined to review the case, leaving in place Bush's opinion.[27][28]
ADA
Bush authored the court's opinion in McDonald v. UAW-GM Center for Human Resources[29] finding that the Americans with Disabilities Act did not require the defendant to extend the employee's lunch break for her to exercise. The plaintiff requested an extended lunch break for doctor-required exercise. The employer was in the decision-making process regarding the accommodation when the employee was suspended for insubordination and use of profanity toward her superior. During the suspension, the plaintiff voluntarily quit her job. The court found that the doctor did not require that the employee workout during her lunch break, that it was only the employee's preference. Furthermore, the employer was engaged in an interactive process regarding the requested accommodation when the employee quit voluntarily, therefore no ADA violation was found.[30][31]
Separation of powers
Bush joined the court's opinion in Hagy v. Demers & Adams, LLC[32] involving a letter sent from an attorney discharging the plaintiffs' debts following a mortgage foreclosure. The letter failed to include language disclosing that it came from a debt collector as required under the Fair Debt Collections Protections Act (FDCPA). Despite the fact that no injury or harm came from the failure to disclose, nor was the letter unfair, deceptive, or harassing as the FDCPA aims to prevent, the district court awarded $1,000 in statutory penalties and over $74,000 in attorneys fees to the plaintiffs. The circuit court reversed, finding that the plaintiffs had no standing in court because no harm had occurred outside of a bare procedural violation. Citing the Supreme Court in Spokeo, Inc. v. Robins, the circuit court found that Congress had overstepped its congressional authority by creating injuries that satisfy Article III standing requirements where no actual harm had occurred. The court found that Congress may not "simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is".[33][34]
Qualified immunity
Bush wrote a concurrence in the case Yates v. Davis[35] regarding former Rowan County, Kentucky court clerk Kim Davis, who refused to marriage licenses following the U.S. Supreme Court's decision recognizing a constitutional right to same-sex marriage in Obergefell v. Hodges. The court found that Davis was not entitled to sovereign or qualified immunity and allowed the case to move forward. Bush authored a concurrence, agreeing that Davis did not qualify for sovereign or qualified immunity, but using a different level of scrutiny to evaluate the question of qualified immunity.[36][37]
On June 18, 2020, in Wright v. City of Euclid, Bush reversed the district court's decision to grant qualified immunity for police officers who tased, pepper-sprayed, and arrested Lamar Wright, a black man who had his hands raised and was cooperating with the officers but had trouble exiting his vehicle due to a colostomy bag from a recent surgery.[38][39] The circuit court's unanimous decision to remand for a jury trial on unconstitutional use of force, false arrest, extended detention, and malicious prosecution claims was authored by Bush.[38] The court also reversed the dismissal of Wright's Monell claims based on police training that notably included a Chris Rock video and a cartoon of a police officer beating a figure lying on the ground.[40][41]
Fourth Amendment
In July 2020, Bush wrote for the unanimous panel when it found that the warrantless use of a camera hidden in the hallway outside the accused's apartment door was not an unconstitutional search of the home's curtilage.[42][43]
