Trump lawyer Matthew Schwartz is about to be rewarded with a lifetime appellate court judgeship
The Senate is expected to vote on Tuesday to confirm Schwartz to the Second Circuit.
After a two-week recess, the Senate returns to Washington next week to do the urgent work of rewarding Trump’s personal lawyers with powerful positions in our government.
On Wednesday, confirmation hearings begin for Todd Blanche’s nomination to serve as attorney general. But before that, the Senate is set to vote on the confirmation of Matthew Schwartz, another Trump lawyer, to serve in a New York seat on the powerful U.S. Court of Appeals for the Second Circuit. According to the Senate’s Executive Calendar, post-cloture time on Schwartz’s nomination will expire at noon on Tuesday, July 14, and the Senate will vote on confirmation that day “at a time to be determined by the Majority Leader in consultation with the Democratic Leader.”
On June 24, the Senate advanced his nomination on a party-line vote. If Schwartz is confirmed next Tuesday, he will be the third Trump lawyer confirmed to a federal appeals court since last year following the confirmations of Emil Bove to the Third Circuit and Justin Smith to the Eighth Circuit.
When Senator Chris Coons asked Schwartz in writing what case or legal matter he is most proud of working on, Schwartz cited his work for the president — signaling to Trump just how much he means to him. Schwartz was asked about his representation of Trump during his hearing and in written questions for the record, which I wrote about here and here.
In their letter opposing Schwartz’s confirmation, People For the American Way noted this:
After his reelection in 2024, Trump hired Schwartz to help him escape accountability. Citing the Supreme Court’s notorious Trump v. United States decision on presidential immunity, Schwartz argued that Trump’s activities during his first term to cover up his private business crimes and his private sexual activity were, in fact, related to his official duties as president. As a result, he argued, the case should at the very least have been removed to federal court. In addition, he argued that Trump v US bars the use of much of the evidence presented to the jury.
Anti-civil and human rights record
Schwartz also has a deeply concerning civil and human rights record that has been overshadowed by his troubling representation of Trump. And he’s had these views for a long time.
When Schwartz was a student at Princeton, he wrote an article in a conservative journal about the first same-sex wedding hosted in the university’s chapel. In his story, Schwartz railed against what he said were “clear political overtones” of the wedding. He repeatedly framed same-sex marriage as something that advocates were “irresponsibly and offensively” seeking to thrust onto the nation using “pure force” and “accusations of bigotry” against those who disagreed. He wrote that “the emotional harm caused to God-fearing Princetonians is inexcusable.” He questioned whether same-sex parents can raise children who are emotionally and psychologically healthy. And shockingly, Schwartz matter-of-factly stated that “Judeo-Christian objections to homosexuality arise from the Bible, which makes homosexuality a capital crime” — meaning punishable by death.
When Senator Cory Booker asked him about this during the hearing, Schwartz replied that “You’re asking about personal and religious views. What I will say is the language that I used in that article was harsh, unacceptable, and reflected my views as a teenager.” When asked in writing about whether he believes same-sex parents can raise children who are emotionally and psychologically healthy, Schwartz said it would be “inappropriate” for him to discuss his “personal views on policy and political matters.” He cited one related Supreme Court precedent that he promised to apply.
Reproductive Freedom for All cites another college writing to demonstrate Schwartz’s opposition to reproductive freedom. They also point to Schwartz’s Supreme Court clerkship, stating that “Schwartz clerked for Justice Alito when the Supreme Court upheld anti-abortion legislation in Gonzalez v. Carhart, a decision that greenlit states’ efforts to enforce a ban on a common, safe, and medically proven effective method of abortion over the needs of patients and their medical providers.”
It was, of course, Justice Alito who authored Dobbs v. Jackson Women’s Health Organization, in addition to many other decisions rolling back fundamental rights. When asked in writing who in the legal profession he sees as a role model when it comes to conducting himself ethically, Schwartz answered “Justice Alito.” He also said Justice Alito is foundational to his judicial philosophy, stating that “Justice Alito carefully studies the facts and law of each case, provides extremely clear and well-crafted guidance to lower court judges, and has shown extreme bravery by persevering through unprecedented threats against him.” This is a breathtaking assertion.
In writing, when Senator Alex Padilla asked Schwartz whether he believes that people have any constitutionally protected right to make reproductive health care decisions, Schwartz did not say yes — only saying that “If I am fortunate enough to be confirmed, I will faithfully apply all binding Supreme Court and other precedent.”
In private practice, in addition to representing Trump, Schwartz represented Emigrant Bank and Emigrant Mortgage Company after Black and Latino borrowers alleged racial discrimination under the Fair Housing Act and New York state and city laws, as well as violations of the Equal Credit Opportunity Act. When Emigrant lost, Schwartz argued the appeal in Saint-Jean v. Emigrant Mortgage Company before the Second Circuit — the court to which he may soon be confirmed. When he lost there, he filed a petition of certiorari with the Supreme Court asking the justices to take up the case. As he stated in his Senate questionnaire, his petition asked the Court to “overrule the disparate impact doctrine under Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.” — an important fair housing decision issued by the Court in 2015.
Schwartz’s representation of a mortgage company engaged in reverse redlining is alarming. And as he represented Emigrant, he was also a member of his law firm’s team that authored an amicus brief in Grants Pass v. Johnson on behalf of Professor John F. Stinneford of Florida Levin College of Law. The brief, on which he is listed as the counsel of record, is cited in Justice Neil Gorsuch’s 2024 opinion criminalizing homelessness. According to the National Homelessness Law Center, the Court “decided that the US Constitution does not protect homeless people against cruel and unusual punishment, even when they have no choice to sleep in public using things like blankets or pillows.” And as the National Alliance to End Homelessness wrote, “because homelessness disproportionately impacts people of color, people of color will continue to face interactions with the criminal legal system at higher rates because of this ruling.”
It is deeply troubling that Schwartz has defended a mortgage company who engaged in reverse redlining, making communities of color more likely to lose their homes — while also supporting efforts to criminalize people who don’t have a place to live.
In their report on Schwartz’s nomination, Alliance for Justice also includes a section about his “extreme hostility to DEI policies.” As they write:
Aligned with his work defending racist lending practices, Schwartz has also personally attacked DEI and its role in universities. Ahead of the 2003 Supreme Court case on race conscious admissions policies, Schwartz co-authored a Wall Street Journal op-ed attacking DEI. In the op-ed, Schwartz argued that conservatives, not members of historically marginalized communities, are the true victims of discrimination on law school campuses.
“Beyond his close professional ties to the President, Mr. Schwartz has a long record of advancing views that call into question his commitment to equal rights and protections for all people,” wrote the National Council of Jewish Women, which also opposes Schwartz’s confirmation. “His writings and advocacy reflect hostility toward reproductive freedom, LGBTQ+ equality, diversity initiatives, and other efforts to expand civil rights and opportunity. Taken together, this record raises serious concerns about whether he possesses the independence and fidelity to equal justice that are essential for a lifetime appointment to the federal bench.”
Refusal to answer questions about the 2020 election and January 6
Like all of Trump’s judicial nominees during his second term, Schwartz would not directly answer questions about the outcome of the 2020 election or the January 6 insurrection.
When Senator Richard Blumenthal asked Schwartz during his confirmation hearing who won the 2020 election, he refused to provide an answer — citing a written response that Justice Ketanji Brown Jackson provided during her Supreme Court confirmation process (a new way some judicial nominees are dodging this question). When Senator Blumenthal asked who won the popular vote in 2020, Schwartz responded the same way again. “It’s a factual question, Mr. Schwartz. It’s a matter of public record. You wouldn’t answer the question in this way if you were before a judge, would you?” In response to Senator Blumenthal, Schwartz said he was bound by the codes of conduct and couldn’t answer “in the way you want me to.” He said “the only legally and ethically correct answer is the one that prior nominees have given, which is that Joe Biden was certified as president in 2020.”
In writing, Schwartz would not say whether he believed the results of the 2020 election, meaning the vote count, were accurate. And when Senator Dick Durbin asked him if Trump lost in 2020, he said this:
Congress certified President Biden as the winner of the 2020 presidential election. In keeping with the position of prior judicial nominees, it would be inappropriate for me to opine on political, policy, or legal debates regarding the integrity 6 of any election, including the 2020 presidential election. See Code of Conduct for United States Judges, Canons 3(A)(6), 5.
He gave this (or a very similarly worded) answer seven times throughout his written responses. Senator Coons sought clarification, asking Schwartz whether being certified as the winner of a presidential election also means that the candidate won the election. Schwartz would only say that “My understanding is that if Congress certifies a candidate as being the winner of a presidential election, it means the candidate has been elected President.”
During the hearing, Senator Blumenthal also asked Schwartz whether the Capitol was attacked on January 6. Schwartz said “there was definitely trespass and violence at the Capitol on January 6, and obviously violence against law enforcement or against political actors is unacceptable.” But when Senator Blumenthal asked him to clarify whether or not it was attacked, Schwartz said “you’re asking me to weigh in on sort of public characterizations. What I will say is that the Capitol was, there was trespass and there was violence at the Capitol on January 6.”
Schwartz stated multiple times that he condemns violence, including against law enforcement, when asked in writing about January 6. But he would not specifically denounce the insurrection or state that the attacks on January 6 represented an insurrection. He also phrased his responses in a way that suggests violence just happened to occur that day at the Capitol, declining to affirm that the attacks were directly on the Capitol (at Trump’s direction) and that they happened in an attempt to stop the certification of the election. “As a judicial nominee, it would be inappropriate for me to comment on legal issues that could come before me if I am fortunate enough to be confirmed, and that are also matters of political controversy,” Schwartz said.
Senators will vote next week on whether — for all of this — Schwartz deserves a lifetime position on a powerful federal appeals court.