Last November, a year and change after Donald Trump’s surprise election, respected New York Times reporter Linda Greenhouse wrote a column about the “conservative plan to weaponize the federal courts.”
While progressives generally expected Trump to payback his conservative supporters with at least one Supreme Court justice, a 37-page plan written by Northwestern University law professor Steven G. Calabresi, founder and board chair of the conservative Federalist Society, declared their intention: “undoing the judicial legacy of President Barack Obama.”
“There is something bracing about the naked activism of a leader of a movement that has spent the past generation railing against judicial activism,” Greenhouse wrote of Calabresi’s plan to pack the courts. “There has never been anything like the weaponizing of the federal judiciary that is currently taking place. Seventeen of President Trump’s 18 nominees to the federal appeals courts are connected to the Federalist Society. Donald McGahn, the White House counsel, joked at the Federalist Society’s annual convention in Washington last week that it was ‘completely false’ that the Trump administration was outsourcing to the group the task of finding judicial nominees. ‘I’ve been a member of the Federalist Society since law school,’ Mr. McGahn said. ‘Still am, so frankly it seems like it’s been in-sourced.’”
That was in Nov. 2017. Last Tuesday, as eight states faced key primary votes, Senate Majority Leader Mitch McConnell announced he was keeping the Senate in session through much of August to deal with legislation—and a backlog of judicial nominations. In other words, while America is distracted with whatever Trump tweets next and politicos worry about the midterms, McConnell is going to implement Calabresi’s plan, undo Obama’s legal legacy—and put lower court judges in place who comport to the right wing conservative ideology.
And while few are paying attention—California Sen. Kamala Harris is. On Thursday, June 7, at a Senate Judiciary Committee business executive meeting, Harris spoke up about how Trump’s judicial nominees have records of bias toward the LGBT community.
“This is LGBTQ Pride Month—the month where we recognize and lift up many contributions of LGBTQ Americans,” Harris said. “It also serves as a reminder that we must continue to fight for the rights of LGBTQ individuals, who have been marginalized and have faced discrimination for far too long simply because of who they are and who they love. But despite the tremendous progress this country has made in recognizing equal rights for all Americans—including LGBTQ Americans—this Committee has approved many nominees who have fought against that progress at every step.
“For instance, we have had a nominee who argued that a judge’s impartiality should be questioned because the judge is in a committed, same-sex relationship,” Harris continued. “We have had another nominee who has repeatedly asserted that full marriage equality ‘imperils civic peace’…These are just a few of the nominees who have openly expressed hostility to the LGBTQ community and who have fought against full equality for LGBTQ Americans. And these are the same nominees who will likely preside over cases involving the rights of those Americans.”
Harris previously spoke out against Howard Nielson, Jr.’s nomination to be District Judge for the District of Utah, for his role in representing proponents of Prop 8, a ballot measure that stripped away marriage equality in California—a fight with which Harris was intimately familiar as State Attorney General.
Harris’ comments should serve as a wakeup call to LGBT organizations and activists who believe the courts will be defenders of LGBT civil rights as the Trump administration continues to roll back LGBT progress.
Full transcript of Harris’ statement:
Thank you, Mr. Chairman and I’d like to associate myself with my colleague’s remarks. It is truly deeply troubling that we’re moving forward with a nominee who has neither his home state senators’ blue slips and neither of them, and who has misled the commission that was vetting him.
In addition, I think it’s important to recognize that this is LGBTQ Pride Month—the month where we recognize and lift up many contributions of LGBTQ Americans.
It also serves, this month, as a reminder that we must continue to fight for the rights of LGBTQ individuals who have been marginalized and have faced discrimination for far too long simply because of who they are and who they love.
But despite the tremendous progress this country has made in recognizing equal rights for all Americans – including LGBTQ Americans – this Committee has approved many nominees who have fought against that progress at every step.
Everyone who comes before this Committee says that they will set aside their personal views and provide a fair hearing to those who stand before them.
But some of these nominees have extreme views and it is difficult to see how any LGBTQ American could reasonably believe that these nominees would give them a fair hearing.
For instance, we have had a nominee who argued that a judge’s impartiality should be questioned because the judge is in a committed, same-sex relationship.
We have had another nominee who has repeatedly asserted that full marriage equality “imperils civic peace.” That nominee is now a confirmed judge with a lifetime appointment.
We have had yet another nominee who expressed support for the county clerk in Kentucky who defied a federal court order by refusing to issue marriage licenses to gay couples after the Obergefell decision.
These are just a few of the nominees who have openly expressed hostility to the LGBTQ community and who have fought against full equality for LGBTQ Americans. And these are the same nominees who will likely preside over cases involving the rights of those Americans.
And it is a sad truth that showing hostility toward the LGBTQ community is not something that has disqualified individuals from becoming a nominee of this administration.
As this Committee knows, these lifetime appointees will make important decisions about the lives and opportunities of all Americans, including LGBTQ Americans for generations to come.
As evidenced by the Masterpiece Cakeshop case that was decided just this week.
And as this Committee knows in that case the Court ruled against the Colorado Civil Rights Commission because the Commission did not act as a neutral decision-maker for the plaintiff. At the same time, the decision reaffirmed that LGBTQ Americans are equal and should not be subject “to indignities when they seek goods and services in an open market.”
What is clear from that decision is that the LGBTQ community will have to continue to fight for equality. And that is a fight that we—as Americans who care about civil rights and equal dignity—must all join.
And that includes ensuring that our federal judiciary is not stacked with individuals who have shown hostility to any group of Americans, especially those who have dedicated their careers to undermining the equality of LGBTQ Americans.
This flood of extreme nominees is being rushed through and does not reflect the best principles of our system of justice. And this has to stop. I believe we can do better. Thank you.