It’s time to sound the alarm again on another bunch of Trump judges queuing up for confirmation by the U.S. Senate. Like the earlier nominees, they are overwhelmingly white and male. One in three has something explicit in their record and/or their writings that is hostile to LGBTQ rights.
“They’re still fighting over whether same sex couples should have the right to marry and have children,” says Sharon McGowan, director of strategy at Lambda Legal, which litigates on behalf of LGBTQ people. “This is a real concerted effort to take back ground that has been lost not only in the law but in public opinion, by putting people on the court that have these views.”
President Trump has confirmed more than twice as many circuit court judges as President Obama did in his first 14 months (14 to six), and Trump leads in district judges as well (14 to 11). With just 51 votes needed (and yes, it was the Democrats who changed the rule, back in 2013), the GOP can wave through on mostly partisan votes just about everybody the White House sends up.
The only tool the opposition has is to highlight the worst of the worst, and shame some Republican senators into withdrawing their support. Three nominees withdrew last year after negative media coverage (Jeff Mateer, Bret Talley, and Matthew Petersen). Mateer had called transgender children the “spawn of Satan;” Talley had a taste for the paranormal, and Petersen’s inability to answer basic questions about the law went viral.
Heading the list for this season’s worst of the worst is Kyle Duncan, nominated for the 5th Circuit (Texas, Louisiana, Misssissippi) and the “go-to guy for the anti-LGBTQ movement,” says McGowan. “He has spent the last decade plus crafting their arguments and seeking out experts to defend them.”
Duncan was the lead lawyer in the Hobby Lobby case before the Supreme Court that won the religious exemption to Obamacare’s family planning coverage, and he has advanced similar arguments against broad-based LGBTQ rights. Duncan says he has a “conscience-based” opposition to what he doesn’t consider “real marriage,” and that he is defending the “age-old bedrock” of traditional marriage.
He was the lawyer advising the North Carolina legislature on its passage of House Bill 2, the so-called bathroom bill, that required people to use the restroom of the gender on their birth certificate. “He recruits experts who say that individuals who have gender identity different from what was assigned at birth are victims of some delusion, and that it’s not a legitimate health situation that science recognizes,” McGowan told The Daily Beast.
All that’s standing between Duncan and a lifetime appointment on the 5th Circuit is a Senate vote. Born in 1972, if confirmed, he could serve 30 or 40 years on the court.
Another nominee with an anti-LGBTQ record awaiting Senate action is Howard Nielson, who turns 50 this year and is teed up for a seat on the federal District Court of Utah. He was part of the legal team in California that defended Proposition 8, a 2008 ballot measure that banned same-sex marriage.
When Prop 8 was declared unconstitutional, Nielson challenged the U.S. Court of Appeals ruling on the grounds that the chief judge in the case had been in a committed relationship with another man for a decade. In Nielson’s January hearing before the Senate Judiciary Committee, Democrat Amy Klobuchar said that was like saying an African-American judge can’t rule in a civil rights case, or a female judge should step aside in a case of sexual harassment.
Democrat Kamala Harris, who litigated against Nielson in the Prop 8 case when she was California’s attorney general, said that by his reasoning a woman if she were a judge on a case that involved abortion would have to declare she’d never had an abortion, or intended to have one. She called his rationale “a thinly veiled attempt to disqualify people.”
Nielson maintained in his hearing that none of the positions he advocated for would impinge on his ability to be fair-minded, which satisfied the Republicans, who all voted for him, while the Democrats uniformly opposed him in the 11-10 party line vote.
He has the strong backing of retiring Republican Sen. Orrin Hatch, his hometown senator, but Nielson is really a creature of Washington, where he’s a partner at the prestigious law firm Cooper & Kirk. Before that he served in President George W. Bush’s Justice Department, where he wrote memos justifying the use of torture.
A third nominee, Gordon Giampietro, appeared headed to an easy confirmation as a district judge in Wisconsin until two audio recordings from 2015 surfaced in which he says marriage equality is “against God’s plan,” and LGBTQ people are “troubled” and unfit to be parents. He declares that Justice Anthony Kennedy, the deciding vote on marriage equality in the Supreme Court, “went off the rails years ago.”
He says the new definition of marriage “actually focuses marriage on the sex act. Because if it were simply that we wanted to honor the love of two people, we would allow sons to marry their mothers, brothers to marry their sisters, for example, to get them healthcare. Isn’t that a beautiful thing? Doesn’t society think that would be a great thing, for a sister to get her brother on healthcare?”
In online writings that have just surfaced, Giampietro criticizes the Civil Rights Act of 1964 as an “intrusion into private business,” and says that “calls for diversity” are “code for relaxed standards.”
Sen. Dianne Feinstein, the ranking Democrat on the Judiciary Committee, said in a statement that the committee can’t do its job and review nominees’ records if the administration hides information. “Both parties should be furious at this routine practice under President Trump.”
So far only one party is furious, and they’re not the party in control. With so much to pay attention to in every news cycle, the steady stream of Trump judges gets overlooked. They shouldn’t get a free pass. “If we don’t protect the courts, the courts won’t protect us,” says McGowan. “We can hold our breath and make it through four years, but these are lifetime appointments.”