Lambda Legal Doubles Down Against Nomination of Stephen S. Schwartz

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September 13, 2017

Last week, Lambda Legal and 27 other LGBT groups urged opposition to the nomination of Stephen S. Schwartz to the U.S. Court of Federal Claims, whose nomination is slated for consideration by the Senate Judiciary Committee at a markup hearing tomorrow morning.

In the letter, organized and led by Lambda Legal, advocates argued that the Court of Federal Appeals has been of “tremendous importance to the LGBT community over the years, including most notably issues affecting LGBT people in the military,” and also citing Schwartz’s record in undermining the rights of LGBT people.

The LGBT groups also said that Mr. Schwarz is unqualified for this position not only for his record, but also because of his lack of experience and his failure to meet the expectations set by the American Bar Association.

“The combination of Mr. Schwartz’s approach to important legal issues affecting the LGBT community, his history of seeking out opportunities to oppose the civil rights of LGBT and other marginalized people, and his relative inexperience in areas of the law within the jurisdiction of the Court of Federal Claims, render him unqualified for this position,” the letter states.

“As a threshold matter, at 34 years old and having graduated from law school only in 2008, Mr. Schwartz does not have the (at least) twelve years of experience practicing law that the American Bar Association (ABA) ordinarily expects of a prospective nominee to the federal bench.

"While the ABA does not review nominees for this court, we believe Mr. Schwartz’s lack of experience alone should cause this Committee significant concern.”

The letter documents Schwartz’s troubling record of litigating ultraconservative causes, including his “exceptional dedication to defending extreme positions that target members of the LGBT community, and especially transgender Americans.”

Most recently, he joined Duncan Schaerr LLP, “a boutique law firm enlisted by North Carolina legislators to fend off legal challenges to its HB 2 law restricting the ability of transgender people to use public restrooms and prohibiting municipalities from extending nondiscrimination protections to LGBT people.”

He also served as co-counsel for Gloucester County School Board in Gavin Grimm’s case against his school board’s discriminatory bathroom ban that was scheduled to be heard by the Supreme Court earlier this year.

The letter places this nomination in its broader context, specifically as it relates to Schwartz’s record of targeting other groups. Schwartz defended a voter identification law that the Fourth Circuit described as “target[ing] African Americans with almost surgical precision.”

He also has been a part of legal teams defending laws that restrict abortion access, and co-authored an amicus brief in the Supreme Court case, Burwell v. Hobby Lobby, where he took the position that "businesses should be able to opt-out of laws that, in their view, burden their exercise of religion."

This position exemplifies, the letter states, "Mr. Schwartz's dogged pursuit of litigation targeting the rights of vulnerable groups and promoting discrimination justified by religion." This, the letter continues, "is particularly disconcerting for a nominee to the federal judiciary because, if confirmed, he would be expected to administer justice equally to litigants of various racial backgrounds, and all genders and sexual orientations."  

Another piece of context here is that the other nominee put forth by President Trump for the Court of Federal Claims, Damien Schiff, is equally hostile to the rights of LGBT people.

As the letter explains, “The Court of Federal Claims cannot afford one, let alone two, judges with records replete with aggressively anti-LGBT views.”