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Analysis: LGBTQ Advocates Sound Alarm Over Trump's Judicial Picks

Nearly 30 LGBTQ organizations recently sent a letter to the Senate Judiciary Committee opposing one of President Trump's judicial nominees.
Image: President Donald Trump
President Donald Trump walks across the tarmac after stepping off Air Force One upon arrival at Morristown Municipal Airport in Morristown, New Jersey on Sept. 15, 2017.Mandel Ngan / AFP - Getty Images file

In a hearing that lasted only a few minutes, the Senate Judiciary Committee on Thursday advanced the nomination of Stephen S. Schwartz to the Senate floor for confirmation. Schwartz, nominated to fill a vacancy on the U.S. Court of Federal Claims, is one of several of Trump’s judicial picks to garner harsh criticism from LGBTQ advocates.

In fact, 28 LGBTQ organizations — including Lambda Legal, Human Rights Campaign and National Center for Transgender Equality — sent a letter to the Committee opposing his nomination and citing what they consider to be his lack of qualifications and a “niche” legal practice of defending anti-transgender policies.

“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.

“Appointments to the bench are of a different magnitude and different longevity ... It is much, much harder to undo, and we are going to deal with the ramifications for generations to come.”

The letter specifically mentions Schwartz’s representation of North Carolina legislators Phil Berger and Tim Moore in defense of House Bill 2 (HB2), legislation best known for barring trans people from using government building bathrooms in accordance with their gender identities. It also notes that Schwartz defended the Gloucester County School Board in Virginia against transgender high school student Gavin Grimm, arguing that Grimm is not protected by Title IX of the 1972 Education Amendments Act and should not be allowed to use the boys’ restroom.

Sen. Chuck Grassley, Republican of Iowa and chairman of the Senate Judiciary Committee, defended Schwartz’s nomination.

“I understand there may be concern that he hasn’t practiced in front of the Court of Federal Claims. However, he has vast experience litigating matters that regularly come before the Court [of Federal Claims],” Grassley said in a statement.

“Mr. Schwartz has also been involved in cases involving so-called ‘hot button political topics.’ Of course, he was representing clients in these matters and the Committee has a long-standing practice of not assuming client interests are the same as their attorney’s personal beliefs,” Grassley added.

Sen. Diane Feinstein, Democrat of California and ranking member of the Senate Judiciary Committee, disagreed with Grassley and said she has “serious concerns” about Schwartz’s suitability for the position.

“In 2014, President Obama nominated five people to vacancies on the Court of Federal Claims. All of them had between 20 and 37 years of legal experience each. All of them had experience litigating before the Court of Federal Claims … And all of them were blocked from final confirmation for the next two years,” she said. “Mr. Schwartz has only nine years of legal experience. Mr. Schwartz has never litigated a single case before the Court of Federal Claims. He is not even admitted to practice before the court to which he has been nominated to serve as a judge.”

Feinstein also objected to Schwartz’s history of litigating LGBTQ issues, saying “instead of experience on the Court of Federal Claims, Mr. Schwartz has spent his time working on divisive issues.”

Trump’s other nominee to the Court of Federal Claims, Damien Schiff, has an equally troubling record, according to advocates. In 2007, Schiff wrote that he disagrees with the landmark ruling in Lawrence v. Texas that decriminalizes sodomy, and in 2009, Schiff objected to a California anti-bullying program for LGBTQ youth, saying the program was tantamount to “teaching gayness in schools.”

The White House did not respond to NBC News' request for comment.

Long-Term Impact on LGBTQ Rights

“Both Schiff and Schwartz have spent their careers fighting against equality for LGBTQ Americans,” said Alliance for Justice Legal Director Daniel Goldberg, who accused the Trump administration of “seeking out” individuals with anti-LGBTQ track records.

While Supreme Court nominations draw the most attention, Goldberg said appointments to lower and specialty courts can have a significant impact on LGBTQ rights.

“‘Don’t ask, don’t tell’ was challenged in the Federal Court of Claims,” Goldberg noted, adding that the court could become a venue where the transgender military ban plays out, as it hears monetary claims made against the U.S. government.

Sharon McGowan, director of strategy at Lambda Legal, echoed Goldberg’s concerns.

“We may be seeing a period of time where transgender people are being forced out of military, and [the Court of Federal Claims] is a forum they can use to challenge some of the action happening against them,” she said.

While the Court of Federal Claims does not carry a lifetime appointment, McGowan said “15 years is a lot of time to do a lot of harm to a lot of people.”

“Each one of these positions matters. There are individual litigants before them whose lives and rights are held in the balance,” she added.

Goldberg also noted that the Court of Federal Claims has been a “stepping stone to the Court of Appeals for other judges in the past.”

“Mr. Schwartz is only 34 years old; Schiff is 38 years old,” he added. “The hope is that they get into the system and be elevated to the Court of Appeals.”

Trump’s Real Legacy: Stacking the Courts

To date, President Trump has nominated 45 individuals for 144 court vacancies. The administration has successfully confirmed 11 federal judges, including Neil Gorsuch to the U.S. Supreme Court and John K. Bush, yet another nominee with a public record of anti-LGBTQ animus, to the U.S. Court of Appeals for the Sixth Circuit.

Despite criticism from Senate Majority Leader Mitch McConnell, Republican of Kentucky, that Senate Democrats are holding up the confirmation process for Trump’s judicial nominees, the speed of Trump’s judicial confirmations have already surpassed those of Barack Obama, G.W. Bush and Bill Clinton. Obama, for example, only managed 10 confirmations in the Senate during his entire first year, including Sonia Sotomayor to the Supreme Court.

“He is quite ahead of past presidents,” Goldberg said. “At this point Barack Obama had not had a lower court judge confirmed. Trump already has five.”

“This isn’t luck or accident. The Republicans in the Senate just stopped confirming Barack Obama’s nominees, regardless of how qualified they are. Merrick Garland is just the most prominent,” Goldberg added. “Mitch McConnell kept vacancies open for President Trump to fill.”

When it comes to LGBTQ rights, McGowan said “the most lasting harm that this administration can do is through the judiciary,” noting that other executive appointments can be undone following the next election.

“Appointments to the bench are of a different magnitude and different longevity,” she noted. “It is much, much harder to undo and we are going to deal with the ramifications for generations to come.”

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