The Trump Administration’s Assault On Courts and LGBTQ Protections Intensified in 2019

Today, Lambda Legal released the third edition of its annual report of judicial nominees revealing the alarming extent to which the Trump-Pence administration, with the help of Senate Majority Leader Mitch McConnell, has filled the federal judiciary with an unprecedented number of unqualified, extremist judges whose records reveal deep hostility for the rights of LGBT people, women, immigrants, and other vulnerable populations.

The 2019 report “Trump’s Judicial Assault on LGBT Protections: After Three Years of Trump Nominees, Bias and Bigotry Remain the Norm” found that the overall story remains the same: over 1 in 3 of Trump’s circuit court nominees (36%) have a demonstrated history of anti-LGBT bias. 

“The damage that is being done to our federal judiciary may be this administration’s most lasting and dangerous legacy,” said Kevin Jennings, CEO of Lambda Legal.

“Majority Leader Mitch McConnell and his Republican colleagues have commandeered the federal judiciary in service of a dangerous agenda that seeks to deny LGBT people and other vulnerable groups the promise of ‘equal justice under law.’  After three years of sustained attack on the integrity of our federal courts, our system of justice is now indisputably in a state of crisis,” added Jennings.

The report highlights the appointments of a large number of ideologically-driven nominees who have expressed hostility towards LGBT protections, including Second Circuit Court of Appeals Judge Steven Menashi, who denigrated Obergefell v. Hodges, the Supreme Court’s marriage equality decision, and who disparaged efforts to repeal “Don’t Ask, Don’t Tell,” the policy banning open military service by LGB people.

Likewise, the report describes the troubling record of Lawrence VanDyke, recently confirmed to the U.S. Court of Appeals for the Ninth Circuit, who claimed that marriage equality harms children and society—a position he has repeatedly refused to disavow.

The American Bar Association rated VanDyke as “Not Qualified” in part due to concerns raised by 60 of VanDyke’s peers about his willingness to administer fair and impartial justice to LGBT litigants.

The report shows the unprecedented pace at which the Trump-Pence administration has been able to pack the courts with a large number of ultraconservative white men—almost all of whom are affiliated with the Federalist Society. Notably, 8 of the country’s 12 circuit courts are now made up of 25% or more of Trump-nominated judges.

As a result of the breakneck pace at which the Senate has confirmed these nominees, three circuit courts of appeals have “flipped” this year from a majority of judges appointed by Democratic presidents to a majority of judges appointed by Republican presidents.

“This is a fast-moving train wreck that—unless something is done now—could undermine civil rights protections for the next 40 years.” said Sasha Buchert, Senior Attorney at Lambda Legal. “An entire generation of LGBTQ people seeking their day in court could be facing judges who have made no secret about their hostility to the rights of LGBT people, women and immigrants.

"Indeed, many of them were nominated because of their hostility towards LGBT people, women and immigrants.”

The impact of these nominees is not hypothetical: for example, earlier this year, a Trump-nominated judge, U.S. Court of Appeals Judge James Ho, wrote an opinion denying an incarcerated transgender woman medically necessary health care in which he refers to the litigant by the wrong pronoun throughout in a shameful display of disrespect for her identity. 

As the report concludes:

“The federal judiciary must remain an impartial institution that administers equal justice for all.  The United States Senate – Democrats and Republicans alike - owe it to the American people to be more than just a rubber stamp for every nominee that the Trump Administration puts forward for consideration. The Constitution’s language about advice and consent is not just a suggestion, but rather a constitutional obligation, particularly during this tenuous time in our nation’s history.

"Otherwise, the damage done to our constitutional democracy will be felt for many decades to come, and may be devastating to those who care about LGBT equality.“