Senate Judiciary Chairman Lindsey Graham – Photo: Senate Judiciary Committee.
The Senate Judiciary Committee has pushed through the nominations of William Barr to be Attorney General and several federal judges with troubling records on LGBTQ rights, setting them up for confirmation votes this week.
From the perspective of LGBTQ advocates, the list of approved nominees reads like a “Who’s Who” of activists whose past records or stances on various issues indicate a degree of animus that could influence their decision making on issues that are important to members of the LGBTQ community and people living with HIV.
For starters, several equality advocates have balked at the nomination of William Barr as the nation’s next attorney general. Barr, an attorney with the legal firm Kirkland & Ellis, who previously served as U.S. Attorney General under from 1991 to 1993, has amassed a long record of positions over his legal career that LGBTQ advocates find troubling.
For example, Barr created an “HIV prison camp” at Guantanamo Bay Naval Base for 310 Haitian asylum seekers, including children, who were HIV-positive, in an effort to quarantine them — even though other government officials had previously expressed concerns about the lack of quality medical treatment available to the inmates at the camp. Barr has also opposed public health interventions, such as the promotion and use of condoms, to reduce the spread of HIV, instead blaming the disease on “sexual licentiousness” and attributing the disease to people’s “personal misconduct.”
Barr has also raised red flags among LGBTQ advocates for his praise of former Attorney General Jeff Sessions’ efforts to prioritize concerns about religious liberty for people who are seeking religious exemptions that would enable them to refuse service to LGBTQ people or same-sex couples. He has been vocal in his belief that, barring a change of law by Congress, transgender people are not — and should not — be protected from discrimination under Title VII of the Civil Rights Act or Title IX of the Education Amendments Act of 1972. Lastly, he has argued that legislation aimed at preventing discrimination based on sexual orientation “seeks to ratify, or put on an equal plane, conduct that previously was considered immoral,” and “dissolves any form of moral consensus in society.”
While many equality advocates rightly see Barr’s ascension to the attorney general’s office as troubling, given his on-the-record statements and policy stances, Sasha Buchert, a staff attorney with Lambda Legal warns that Barr is not the only person who poses a threat to LGBTQ equality — and, in fact, may be far from the worst.
“For me, the thing that gets lost sometimes is that William Barr, particularly in Trump’s administration, will likely not last longer than a few months — at the most 2 years, whereas these judicial nominees have lifetime appointments,” Buchert says. “They’re going to be there 20, 30, even 40 years from now in some cases. They could be on the bench for a long time, issuing rulings from the bench that could hamper some of that progressive legislation we’ve been waiting for, such as the Equality Act — even when a pro-equality majority [eventually] takes back the Senate and the executive branch.”
William Barr – Photo: C-SPAN.
Buchert says that she believes Barr’s nomination should be opposed, but that “there’s no comparison” to the threat that some of President Trump’s federal circuit court and district court nominees pose to the LGBTQ community and people living with HIV.
Specifically, Buchert points to Chad Readler, a nominee to the 6th U.S. Circuit Court of Appeals, who has argued against workplace protections for LGBTQ employees, and previously argued that protections against sex discrimination should not apply to cases where people are fired or mistreated in the workplace because of their sexual orientation. Readler also defied a court order requiring the Trump-Pence administration to disclose the names of the so-called “experts” with whom the Trump administration consulted when it was developing its ban on transgender service members.
Other problematic nominees, in the view of LGBTQ activists, include Eric Murphy, also a nominee to the 6th Circuit Court of Appeals, who has argued against allowing transgender students to use facilities matching their gender identity, and, as counsel of record in the Obergefell v. Hodges case, in favor of upholding Ohio and Michigan’s bans on same-sex marriage, and Allison Jones Rushing, a nominee to the 4th Circuit Court of Appeals, who has ties to the anti-LGBTQ Alliance Defending Freedom and has written in support of “religious freedom” measures and criticized courts for giving too much deference to “anti-religious” people with “eggshell sensitivities” who seek to challenge government acknowledgments of religion.
Buchert also includes several district court nominees on her list of problematic would-be judges, including Matthew Kacsmaryk, up for a seat on the U.S. District Court for the Northern District of Texas, who has not been shy about his opposition to the Equality Act, his support for religious exemptions to discriminate, and his opposition to Virginia transgender student Gavin Grimm‘s lawsuit demanding equal access to facilities matching his gender identity; Stephen Clark, nominated to the U.S. District Court for the Eastern District of Missouri, who is vocal in his opposition to marriage equality; and Howard Nielson, nominated to the U.S. District Court for the District of Utah, who is best known for his criticism of federal Judge Vaughn Walker, the presiding judge in the lawsuit over California’s Proposition 8, who Nielson argued was incapable of being impartial due to being in a same-sex relationship.
Eric Murphy – Photo: Ohio Attorney General’s Office.
“It’s quite clear that LGBTQ litigants are not going to get a fair hearing under the law if these judges are confirmed,” Buchert says, adding that Americans have to be more active in engaging senators and urging them to vote against nominees who have demonstrated a significant degree of anti-LGBTQ animus.
“The Left and the progressive movement has just not cared about judges in the way that the Right has,” she says. “We’ve seen our courts step forward in this really dangerous time. But as we saw with the Supreme Court issuing a stay on the transgender military ban, with [Justice Brett] Kavanaugh replacing [Justice Anthony] Kennedy, that’s what’s happening on the lower courts, too. People have to recognize how important this is take the time and contact their senator to vote against these folks.”
Lena Zwarensteyn, fair courts campaign director at The Leadership Conference on Civil and Human Rights, agrees with Buchert that people need to become more engaged if they wish to block some of the most problematic judicial nominees put forth by the administration.
“It really is incumbent on all of us to reach out to our senators and speak up about how much these lifetime appointments mean and how important it is that senators know people are watching. Because when it comes to the public’s notice about some of these nominees’ really atrocious records, that’s when these nominees are suddenly seen in a different light,” Zwarensteyn says. “On the nominations of [failed nominees] Ryan Bounds and Thomas Farr, it was only in the final hours, when their nominated were being debated, when the public and senators saw the full extend of their record.”
Allison Jones Rushing – Photo: Williams & Connolly LLP.
That said, Zwarensteyn is highly critical of Republicans, especially Senate Judiciary Committee Chairman Lindsey Graham, for ignoring the “blue-slip” process, an informal Senate tradition under which the committee would normally not consider a nominee unless their home state senator submitted a blue slip indicating they approved of the nomination moving forward.
On Thursday, senators on the Judiciary Committee debated the blue-slip process publicly during the an executive hearing, with Republicans taking the view that a blue slip was never intended to serve as a veto over a president’s decision to nominate whomever they wished to an open judicial position. Meanwhile, Democrats argued that respecting the blue-slip process was a way to seek input from home state senators, taking into account any concerns they might have, and ensuring that those who are successfully confirmed are not radically outside of the mainstream when it comes to judicial ideology.
“I think, overall, we have to start with the premise that this administration, and this Senate majority, are doing everything they can to rig the system so that they can pack as many anti-civil rights judges or people who have demonstrated hostility to the LGBTQ community onto the courts to transform the courts, and our country, for years to come,” Zwarensteyn says.
Howard C. Nielson, Jr. – Photo: Drew Danburry.
Specifically, Zwarensteyn name-checks Murphy, Readler, Kacsmaryk, Clark, and Nielson as nominees who she believes are “extreme” in their opposition to LGBTQ rights. Other nominees she includes in that category include: Michael Truncale and J. Campbell Barker, both nominated for the U.S. District Court for the Eastern District of Texas; Andrew Brasher, nominated for a seat on the U.S. District Court for the Middle District of Alabama; Brian Buescher, nominee to the District of Nebraska; and Allen Cothrel Winsor, nominee to the U.S. District Court for the Northern District of Florida.
Zwarensteyn says that the Trump administration is deliberately nominating people whom the president and his advisors believe will help radically alter the way that courts interpret statutes relating to civil rights as a way to accomplish what conservative Republicans can’t through legislation like the First Amendment Defense Act.
“The overall agenda is to reshape the federal courts,” she says. “It really is reshaping the courts in Trump’s image, in McConnell’s image, one where there is real hostility to some of the communities we care about. Beyond LGBTQ equality, a number of them have signaled hostility to reproductive justice, to access to health care, to voting rights, to immigrant justice. And it really does seem to be those who have raised their hands in many of these extreme cases who are getting promoted.
“These are people who have really signaled what they believe the law should be, and how it should be interpreted, and that’s exactly why they’ve been selected,” Zwarensteyn adds. “These are not the exceptions, these are the rules.”