Advocates for LGBTQ equality are raising the alarm about the harm the potential nominees could cause.
Donald Trump on Wednesday announced additions to his short list of potential nominees to an open seat on the United States Supreme Court.
LGBTQ groups are concerned that many of the 20 new people added to the list would put queer and trans people's rights at serious risk if they were placed on the court.
The potential nominees, who include Republican Sens. Ted Cruz, Tom Cotton, and Josh Hawley, have histories of virulent opposition to LGBTQ equality.
Alphonso David, president of the Human Rights Campaign, said of the additions: "If the past is prologue, he may once again nominate people who would deny legal protections for LGBTQ people ... and fail to value the lives, needs, and constitutional rights of the LGBTQ community."
Kylee Reynolds, a fair courts project fellow with Lambda Legal, an organization focused on the legal rights of the LGBTQ community, said this sort of clear bias from judges can deter people from seeking justice in the courts and "imperils civil rights."
"Their careers had been built in many ways opposing any kind of equality for LGBT people and their families," Reynolds said.
Taking anti-LGBTQ stands
Sens. Cruz and Cotton have clear records of opposition to LGBTQ rights.
In 2015, Texas Republican Cruz said a potential U.S. Supreme Court ruling in favor of marriage equality would be "naked and lawless judicial activism tearing down marriage laws adopted pursuant to the Constitution."
In April of that year, Cruz introduced a draft constitutional amendment that would have protected states that define marriage as only between a man and a woman from legal action. Once the Supreme Court ruled in favor of marriage equality, he supported Kim Davis, the Kentucky county clerk who refused to follow the law and issue marriage licenses to same-sex couples.
Last year, Cruz called a Texas parent's support for his transgender child "nothing less than child abuse."
In 2015, Arkansas Republican Cotton said on CNN that people who didn't like the Religious Freedom Restoration Act, a bill passed in Indiana and signed into law by its then-Gov. Mike Pence, needed to "get perspective." LGBTQ advocates said the law would allow businesses to discriminate against them, but Cotton suggested the community should be grateful for their treatment: "In Iran they hang you for the crime of being gay."
Cruz and Cotton both have scores of zero on the Human Rights Campaign's Congressional Scorecard.
Another of Trump's choices, James Ho, a judge on the United States Court of Appeals for the 5th Circuit, wrote a majority opinion and a second opinion concurring with the majority in the case of a discrimination claim brought by a transgender worker, Nicole Wittmer. In the second opinion, Ho wrote about issues that weren't directly relevant to the case, such as transgender people's bathroom use.
In the concurrence, Ho railed against consideration of transgender people facing discrimination based on sex in Title VII of the 1964 Civil Rights Act, saying, "As a matter of ordinary usage, the term 'sex,' of course, does not mean 'sexual orientation' or 'transgender status.' In common, ordinary usage in 1964—and now, for that matter—the word 'sex' means biologically male or female."
The Supreme Court ruled in June that the Title VII prohibition on discrimination "on the basis of sex" does include transgender workers as well as lesbian, gay, and bisexual workers.
Missouri Republican Hawley said the June ruling on Title VII "represents the end of the conservative legal movement."
Arguing against LGBTQ rights
Gregory Katsas, a judge on the United States Court of Appeals for the District of Columbia Circuit, once served as White House deputy counsel under Trump. Katsas has opposed LGBTQ equality throughout his career.
Katsas has argued in favor of the Defense of Marriage Act, which defined marriage as only between a man and a woman; has been critical of the court's 2015 marriage equality decision; and said it is clear that children are best raised by both of their biological parents. Katsas has worked on Trump administration policies that are discriminatory against transgender people, including the transgender military ban.
Noel Francisco, who left his position as solicitor general of the United States in June, has been at the forefront of anti-LGBTQ legal actions during the Trump administration.
Last year Francisco argued before the Supreme Court in a case involving discrimination against LGBTQ workers: "Sex and gender identity, like sex and sexual orientation, are different traits. This is an issue better left to Congress ... I think it is important to allow the democratic process to resolve these issues."
Stuart Kyle Duncan, a judge on the United States Court of Appeals for the 5th Circuit, has spent much of his career arguing against LGBTQ rights. He formerly worked as the general counsel for the Becket Fund for Religious Liberty, for which he defended Louisiana's ban on marriage equality. This year, Duncan refused to use the correct pronouns for a transgender litigant, Kathrine Nicole Jett, and defended his decision by saying that if he chose to refer to her accurately, another judge might end up having to use pronouns such as "xe" or "hir."
Paul Clement, a partner with Kirkland & Ellis and solicitor general of the United States under George W. Bush, has also argued in favor of the Defense of Marriage Act, which is a common theme among Trump's picks for the Supreme Court. In 2013, Clement filed a brief in United States v. Windsor that argued LGBTQ people were already so powerful that they did not need legal protections.
"In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history," Clement wrote.
He added, "There is absolutely no reason to think that gays and lesbians are shut out of the political process to a degree that would justify judicial intervention on an issue as divisive and fast moving as same-sex marriage."
Bridget Bade, a judge on the United States Court of Appeals for the 9th Circuit, dissented in a case involving a trans woman with gender dysphoria and her ability to get gender-affirming surgery in prison. Bade and other dissenting judges argued that a decision in favor of the trans woman inmate, Adree Edmo, would "invent a constitutional right to state-funded sex reassignment surgery."
Ties to anti-LGBTQ groups
Allison Jones Rushing, a judge on the United States Court of Appeals for the 4th Circuit, interned with the Alliance Defending Freedom, which has been called an anti-LGBTQ hate group by the Southern Poverty Law Center. The group has ferociously fought against LGBTQ rights in the courts. Rushing also reportedly defended the Defense of Marriage Act and backed justices' dissent in the 2015 marriage equality decision.
In 2018, the National Center for Transgender Equality opposed Rushing's appointment to court of appeals, noting: "In 2013, Rushing gave a talk defending the Bush administration’s efforts to ban same-sex marriage nationwide, arguing that Congress and states should be able to adopt discriminatory laws solely because they believe LGBT people are immoral."
Hawley too has connections to the Alliance Defending Freedom. In 2013 he was flown to Phoenix on the ADF's so-called Blackstone Legal Fellowship, receiving thousands of dollars apparently for a one-hour speech that was required to use language endorsing the group's views on LGBTQ issues.
The Florida Family Policy Council, an anti-LGBTQ group, supported the appointment of Barbara Lagoa, now a judge on the United States Court of Appeals for the 11th Circuit, to the Florida Supreme Court last year. Lagoa is included in Trump's list of potential Supreme Court picks.
What people on Trump's short list don't say is also significant. An American Bar Association letter in response to the nomination of Lawrence VanDyke to the United States Court of Appeals for the 9th Circuit noted that VanDyke would not affirm that he would treat LGBTQ litigants fairly and said that he was "arrogant, lazy, an ideologue, and lacking in knowledge."
Published with permission of The American Independent Foundation.