The process by which the Senate confirms federal judges has greatly shifted under President Trump, and the results are greatly endangering the LGBTQ community. A new report from Lambda Legal shows that more than a third of nominees have a documented history of anti-LGBTQ bias, but many are getting rushed across the confirmation finish line to lifetime appointments anyway.
In the past, the Senate has been a bit slow to confirm judges to the federal bench. For example, under the past few presidents, the number of judges confirmed to circuit courts after the first two years of a term ranged from 16 (under President Obama) to 22 (President George H.W. Bush). But the Senate has confirmed 30 of Trump’s circuit court nominees during the first two years of his administration. As a result, five of the nation’s twelve appeals courts are now made up of at least 25 percent Trump appointees.
District court confirmations have also surged in just the past year. Eight times as many judges were confirmed in 2018 (47) as in 2017 (just six). That means that these Trump-appointed judges will increasingly be the first to hear cases and in positions to issue decisions impacting the entire country, such as when a Texas judge declared the Affordable Care Act (ACA) unconstitutional. “As more district court judgeships are filled with ultra-conservative nominees from the Trump Administration,” the report notes, “we can expect to see more decisions like the ACA ruling.”
Several Senate norms have been upended that have allowed this rubber-stamping to accelerate. For example, many confirmation hearings have been scheduled when Congress is in recess, so many senators haven’t been available to actually question the nominees. And even when senators are present, the hearings have been packed with so many nominees that there is less time to ask questions.
Traditionally, senators can traditionally approve or disapprove nominations from their home state through the “blue slip” process, but in the last two years, five judges have had hearings over such objections — something that only happened three times ever prior to this administration.
The Senate has also largely disregarded qualification ratings from the American Bar Association (ABA). Of the 12 confirmed judges that received “Not Qualified” ratings from the ABA over the past 20 years, a third were Trump nominees — including the only two “Not Qualified” circuit court judges ever confirmed.
Many of these nominees have openly rejected LGBTQ equality or even worked to undermine it in the past. For example, Kyle Duncan, who has already been approved to the U.S. Court of Appeals for the Fifth Circuit, argued against marriage equality in many cases, fought to defend North Carolina’s anti-transgender law HB2, and also represented the Virginia school district that fought to discriminate against transgender student Gavin Grimm.
Two pending nominees to the Sixth Circuit have also argued against LGBTQ equality in high profile cases. Chad Readler has defended the Trump administration’s ban on transgender people serving in the military and also argued that businesses should be allowed to fire employees just for being gay. Eric Murphy represented Ohio in its fight against marriage equality in Obergefell v. Hodges, the case in which the Supreme Court ultimately overturned bans on same-sex couples marrying.
“If there’s any issue that you care about in the political universe, judicial nominations should be the ‘plus one’ you bring to any party,” Sharon McGowan told ThinkProgress. As Lambda Legal’s legal director and chief strategy officer, McGowan has been leading the charge to raise awareness about these dangerous nominees.
“Most of the things we’re seeing coming out of the Trump administration have the ability to be corrected,” she explained, such as executive orders and policy decisions that can be reversed. But with judges that could serve for 20, 30, or even 40 years, there’s “the potential to extend the damage being done for decades into the future.” She also thinks that’s why many conservatives have been willing to support the Trump administration, even if they disagree with him on a personal level. “This is the moment they’ve been waiting for.”
While McGowan believe “the road will continue to be an uphill one,” she’s also optimistic that in the wake of the hearing of Supreme Court Justice Brett Kavanaugh, “there’s a new desire to fight that there hasn’t been in the past.”
Next week, the Senate Judiciary Committee will hold a confirmation hearing for William Barr, Trump’s nominee too succeed Jeff Sessions as Attorney General. Like Sessions, Barr is an opponent of LGBTQ equality, supporting efforts to allow discrimination under the guise of “religious liberty.”
McGowan hopes that this “perfect storm moment” serves as another opportunity to check on the health of the rule of law in this country. “Courts are a check, but what do they need to be a check on?” she said. “With Barr doubling down and endorsing some of the worst things from the Trump administration, this crystallizes the importance of having courts not just be a rubber stamp.”