In his more than three decades on the bench, Supreme Court Justice Anthony Kennedy was a crucial swing vote on several decisions that expanded gay rights. With Kennedy’s retirement just weeks away, all eyes are on his potential replacements and how they might decide on key issues, including those pertaining to LGBTQ rights.
President Donald Trump has narrowed down his list of contenders to replace Justice Kennedy to four serious candidates, a source with first-hand knowledge of Trump’s selection process told NBC News. Those candidates are appeals court judges Brett Kavanaugh, Raymond Kethledge, Amy Coney Barrett and Thomas Hardiman.
Following the reports of Trump’s top choices, a number of LGBTQ and civil rights organizations were quick to share their concerns about the president's picks.
"None of the nominees — nobody on this list — has demonstrated a commitment to giving a fair hearing to LGBTQ Americans."
Daniel Goldberg, Alliance for Justice Legal Director
Sharon McGowan, legal director of Lambda Legal and a former Justice Department official, described Trump’s shortlist as “exactly what Trump promised.”
She called the candidates “extraordinarily extreme” and noted they have “the blessing of extreme organizations” and “folks who would put the rights of many communities at risk.”
Daniel Goldberg, legal director of liberal judicial advocacy group Alliance for Justice, echoed McGowan’s assessment of the candidates.
“None of the nominees — nobody on this list — has demonstrated a commitment to giving a fair hearing to LGBTQ Americans,” he said.
Citing the president’s unsuccessful judicial nominations of Damien Schiff and Jeff Mateer, Goldberg said Trump “has made clear through his lower court appointments his contempt for the rights of LGBTQ Americans.”
“He wants to put someone on the bench who will turn back the clock and erode many of our most critical legal principles,” Goldberg added.
Carrie Severino, chief counsel and policy director at the conservative Judicial Crisis Network, said the warnings from LGBTQ advocacy groups have been “very much overblown” and called them “mostly scare tactics.”
She argued the shortlisted nominees do not have a track record on deciding specifically LGBTQ issues, so “we don’t really know what their position is.”
Severino praised the president for looking at a “very deep bench” of candidates and said his shortlist shows he’s on track to “fulfill his most important campaign promise” of choosing conservative justices.
AMY CONEY BARRETT
Barrett, 46, is a former law clerk to Justice Antonin Scalia and was appointed by Trump last year to serve on the 7th U.S. Circuit Court of Appeals in Chicago. Barrett, if selected and confirmed, would be the youngest justice on the high court.
During her Senate confirmation process last year for her current post, Barrett was questioned about important LGBTQ legal precedents, including Obergefell v. Hodges, United States v. Windsor and Lawrence v. Texas. In written responses to senators’ questions, Barrett repeatedly stated these landmark cases are “binding precedents” that she will “faithfully follow if confirmed.”
McGowan, however, noted that such an answer “means nothing when it comes to the Supreme Court.” Not only does the high court have the ability to overturn precedent — as occurred last month in the Janus v. AFSCME Council 31 case, which dealt a crippling blow to public worker unions — McGowan said the court can also “gut or hollow out precedent."
Goldberg said Barrett has “deeply troubling writings when it comes to precedent.”
“I have no doubt these nominees … will come before the Senate and say ‘I respect precedent.’ The burden is on [the nominees] to demonstrate that they will respect the critical precedents … that are essential for ensuring equality under the law for LGBTQ Americans,” Goldberg added.
In an October 2017 letter sent to the Senate Judiciary Committee by 27 LGBTQ groups opposing Barrett’s nomination to the 7th U.S. Circuit Court of Appeals, the organizations voiced concerns about the ability of Barrett, a devout Catholic, to reconcile her “religiously-infused moral beliefs” with her “judicial decision-making about issues of concern to the communities that our organizations serve”
“It is far from clear how Professor Barrett, sitting as a federal judge, would reconcile her publicly avowed views about ‘marriage and family founded on the indissoluble commitment of a man and a woman’ with the Supreme Court’s decision in Obergefell v. Hodges, which recognized the constitutional right to marriage equality; or her views about ‘the significance of sexual difference and the complementarity of men and women’ with the Supreme Court’s decision in Price Waterhouse v. Hopkins, which ruled that Title VII’s prohibition on sex discrimination also prohibits an employer from discriminating due to gender-based stereotypes about how men and women are supposed to act,” the letter stated.
“Simply repeating that she would be bound by Supreme Court precedent does not illuminate — indeed, it obfuscates — how Professor Barrett would interpret and apply precedent when faced with the sorts of dilemmas that, in her view, ‘put Catholic judges in a bind,’” the letter continued.
The 27 organizations also claimed Barrett “demonstrated a profound lack of judgment by delivering a lecture paid for by the Alliance Defending Freedom (ADF), arguably the most extreme anti-LGBT legal organization in the United States.” The Southern Poverty Law Center (SPLC) has designated the ADF an anti-LGBTQ “hate group," a designation the group has refuted.
When questioned about the speech by the Senate during the confirmation process for her current post, Barrett stated she had “not undertaken to investigate the accuracy of SPLC’s description of ADF’s policy positions or its characterization of ADF as a hate group” and called the SPLC’s designation “a matter of public controversy.” She added, however, that she would “not participate in any program that advocated hatred and discrimination against any group, including LGBTQ persons.”
Kethledge, 51, serves on the Cincinnati-based 6th U.S. Circuit Court of Appeals. Like Trump’s first Supreme Court nominee, Neil Gorsuch, Kethledge was once a clerk for Justice Kennedy. Kethledge was appointed to his current post by President George W. Bush and was confirmed by the Senate in 2008.
In 2012, Kethledge sided with the majority in Wasek v. Arrow Energy Services, a case involving same-sex sexual harassment. The plaintiff, Harold Wasek, claimed one of his male coworkers sexually harassed him in violation of Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of sex, race, color, national origin and religion. The court dismissed Wasek’s sexual harassment claim, noting it would only be valid if he could provide “credible evidence that the harasser was homosexual.”
McGowan said this interpretation of Title VII belies a “narrow understanding of what sex discrimination encompasses.”
Questions regarding the scope of Title VII — particularly whether sex discrimination should be understood to include discrimination based on sexual orientation and gender identity — have been making their way through the lower courts, leading McGowan and other LGBTQ advocates to believe the Supreme Court could take it up in the foreseeable future.
Brett Kavanaugh, 53, serves on the U.S. Court of Appeals for the District of Columbia Circuit. Like Gorsuch and Kethledge, Kavanaugh was once a law clerk for Justice Kennedy. He also served as an aide in the George W. Bush White House and was a co-author of Kenneth Starr’s 1998 report to Congress on the investigation of President Bill Clinton's relationship with Monica Lewinsky. Kavanaugh was appointed to his current post by George W. Bush and was confirmed by the Senate in 2006.
Kavanaugh does not have a clear judicial record on LGBTQ issues, but McGowan said he was “promoted heavily by the Family Research Council in 2005” when he was initially nominated for the U.S. Court of Appeals for D.C. Circuit. The Family Research Council, like the Alliance Defending Freedom, has been designated an anti-LGBTQ “hate group” by the Southern Poverty Law Center and is an outspoken opponent of LGBTQ rights, claiming homosexuality is “harmful” and “unnatural.” It is not clear, however, whether Kavanaugh agrees with the group’s anti-LGBTQ views.
Hardiman, 53, serves on the 3rd U.S. Circuit Court of Appeals in Philadelphia. He was appointed to his current post by President George W. Bush and was confirmed by the Senate in 2007. Hardiman was also on the shortlist to fill the seat left vacant after the passing of Supreme Court Justice Antonin Scalia, but President Trump ultimately chose Neil Gorsuch.
Hardiman, like the others on Trump’s shortlist, does not have a concrete track record when it comes to ruling on LGBTQ issues. However, McGowan said “there is enough in his record to have concern.”
Hardiman authored the 2009 opinion for a three-judge panel in Brian D. Prowel v. Wise Business Forms, a Title VII case involving a gay employee who claimed to have experienced discrimination on the basis of his sex, his sexual orientation and as a result of the religious views of his employer. The panel ruled that the plaintiff had a valid sex-stereotyping claim but stated sexual orientation is not a protected class under Title VII. While consistent with precedent at the time, a number of courts have since found Title VII to be inclusive of sexual-orientation discrimination, and it is an issue many LGBTQ advocates expect to reach the Supreme Court in the near future.
Referring to Kavanaugh, Kethledge and Hardiman, Goldberg said they have track records of “eroding rights and legal protections” of minority groups and is confident that “they would do the same when it comes to protections for LGBTQ Americans.”
A LONG-LASTING CHOICE
With a number of LGBTQ issues potentially headed to the Supreme Court over the next several years — from Title VII anti-discrimination protections to the transgender military ban — community advocates underscored the importance of Trump’s high court choice, which, if confirmed, would mean a lifetime appointment to the bench.
“We do not want 40 more years of Trump’s values on the Supreme Court,” Goldberg said. “Long after Donald Trump has left the scene along with his vile attacks toward the rights of LGBTQ people, his pick for the Supreme Court will be determining the rights of LGBTQ people across the country.”
President Trump is expected to announce his Supreme Court pick on Monday at 9 p.m. EDT.