Anti-LGBTQ Judicial Nominees: Too Biased for the Bench

by Harper Jean Tobin, Director of Policy, and Amanda Naranjo, Legal Intern

Senator Patty Murray speaking out against anti-LGBTQ judicial nominees on the Senate floor, July 19, 2017. Photo credit: Michael J. Brewer

Senator Patty Murray remarked on the Senate floor Wednesday that “decisions about whether or not to support judicial nominees [are] among the most important and consequential choices I make as a United States Senator.” This responsibility is thrown into sharp relief as the Senate votes today to confirm John Bush — someone who famously compared abortion to slavery — to the federal bench.

John Bush. Photo credit: Bingham Greenebaum Doll LLP

The President’s judicial picks have been rightly scrutinized for extreme views, shocking statements, and hostility to civil rights claims on a variety of fronts. Bush, for example, called the Roe v. Wade decision one of the “greatest tragedies” in American history. He has also displayed what Senator Murray called “a disturbing pattern of hostility toward the LGBTQ community,” praising court decisions that undermine equality and politicians who oppose marriage equality, and even using an anti-gay slur for comic effect in a speech.

Damien Schiff. Photo credit: Pacific Legal Foundation

Unfortunately, Bush is no outlier. President Trump’s pick for a seat in the U.S. Court of Federal Claims, Damien Schiff, has a record that demonstrates, in the words of a letter joined by NCTE and other LGBT advocates, “plain contempt for the rights of LGBT Americans.” Further, Schiff has flat-out denied the legitimacy of Title IX, a critical federal law that guarantees equal treatment for trans students. The shameless bias that Schiff, Bush, and other nominees freely espouse is simply unacceptable for judicial nominees, for our federal bench, and for our entire system of justice.

Ralph Erickson. Photo credit: Dave Wallis

The records of other judicial nominees’ also raise questions about their views and possible biases against trans equality. While serving as a district court judge in 2016, President Trump’s pick for the Eighth Circuit, Ralph Erickson, was one of two judges in the country who — contrary to nearly two decades of case law — ordered the federal government not to enforce health care nondiscrimination protections for trans people. The exact reasoning behind Erickson’s decision is unknown, because his orders pausing the enforcement of this federal civil rights law were sealed for unexplained reasons.

Stephen Schwartz. Photo credit: Schaerr Duncan LLP

Another nominee for the U.S. Court of Federal Claims, Stephen S. Schwartz, represented the sponsors of North Carolina’s HB 2 in defending the discriminatory anti-trans law, and defended the Gloucester County School Board’s discrimination against trans student Gavin Grimm all the way to the Supreme Court. In both cases, Schwartz helped craft arguments that federal laws offer no protection to trans people. While a lawyer’s choice of client is not, in itself, generally considered a valid ground for criticizing nominees, Schwartz’s involvement in making far-reaching legal arguments in these high-profile cases should prompt close scrutiny of his own views and possible biases.

We urge all senators, regardless of party, to closely scrutinize these nominees and to oppose those who have proven themselves to have biased and extreme views when it comes to LGBTQ people.

Take action:

Call your senators today and urge them to vote no on John Bush and Damien Schiff. You can call the Capitol Switchboard at (202) 224–3121 and ask to be directed to the senators from your state.

Sign up to receive NCTE’s emails, and follow NCTE on Twitter, Facebook, and Medium for the latest news on issues affecting the transgender community. Visit transequality.org for in-depth resources and information on what you can do to support the transgender people in your life.

Trans Equality Now!

A joint project of the National Center for Transgender Equality Action Fund and the National Center for Transgender Equality. Also at ncteactionfund.org and transequality.org.

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National Center for Transgender Equality

Written by

We’re the nation’s leading social justice advocacy organization winning life-saving change for transgender people. Also at https://transequality.org.

Trans Equality Now!

A joint project of the National Center for Transgender Equality Action Fund and the National Center for Transgender Equality. Also at ncteactionfund.org and transequality.org.

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