The women on President Donald Trump's shortlist to replace Justice Ruth Bader Ginsburg on the Supreme Court do not reflect Ginsburg’s legacy and could undo key civil rights victories she backed during her 27 years on the court, LGBTQ and civil rights advocates warn.
“Just having a woman, any woman, does not cut it,” Sunu P. Chandy, legal director of the progressive National Women’s Law Center, told NBC News. “We need someone with deep civil rights experience and background if we are looking to fill the legacy of her seat on the court.”
In addition to her work as a champion of women’s rights, Ginsburg voted in favor of expanding LGBTQ rights in every opportunity she had as a Supreme Court justice. She voted with the majority to expand rights in Romer v. Evans, a 1996 decision that struck down Amendment 2 of the Colorado Constitution, which barred local governments from recognizing gay men and lesbians as a protected class; Lawrence v. Texas, a 2003 decision that decriminalized same-sex sexual activity; United States v. Windsor, a 2013 decision that decimated the Defense of Marriage Act; Obergefell v. Hodges, a 2015 decision that made same-sex marriage legal across the United States; and Bostock v. Clayton County, Georgia, a 2020 decision that ruled Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on sexual orientation and gender identity.
Sharon McGowan, legal director of the LGBTQ civil rights organization Lambda Legal, said the women on Trump’s list have records “antithetical to principles of equality and liberty that Justice Ginsberg championed on the court.”
“What we have is a president and Senate majority leader that, through every action they have taken since taking office, is showing their determination to roll back the rights of all the groups Justice Ginsberg championed,” she added, referring to Sen. Mitch McConnell, R-Ky.
Conservative advocacy groups widely praised Ginsburg, applauded the president’s list of her potential successors and encouraged that a new justice be named swiftly.
“When President Trump makes his nomination, let us hope the people demand a process that is closer to Ginsburg’s vision than to that of recent Democratic Party leadership,” Carrie Campbell Severino, president of the conservative advocacy group Judicial Crisis Network, wrote in a memo for National Review. “When it’s time for the Senate to consider whomever the president chooses, I hope it will renounce the sordid tactics of character assassination and return to the model of civilized inquiry that examines a nominee’s qualifications.”
Amy Coney Barrett
Trump said Tuesday that he will announce his Supreme Court nominee on Saturday. In an interview with Fox News, he said he was “down to five” candidates, whom he did not name, but multiple sources close to the process told NBC News that there are currently two front-runners: Judges Amy Coney Barrett and Barbara Lagoa.
Barrett, 48, was appointed by Trump in 2017 to the 7th U.S. Circuit Court of Appeals and has been on his Supreme Court list since then. Prior to her appointment, Barrett was a law professor at her alma mater, Notre Dame, and clerked for Justice Antonin Scalia.
Upon her confirmation to the 7th Circuit, the Judicial Crisis Network praised Barrett as a “well-qualified, impressive, experienced” judge “who will apply the rule of law fairly.”
On Saturday, Trump called her "very respected."
LGBTQ advocates, however, have been sounding the alarm about Barrett since her 2017 nomination. That October, over two dozen LGBTQ organizations sent a letter to the Senate Judiciary Committee opposing her nomination. The organizations, which included Lambda Legal, the National Center for Lesbian Rights and the National Center for Transgender Equality, raised concerns about Barrett’s ability to separate her religious beliefs as a Roman Catholic from her decisions on the bench.
“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 2017 letter stated.
During her Senate confirmation, Barrett tried to allay concerns about her personal religious convictions influencing her interpretation of the law. When questioned about LGBTQ legal precedents, including Obergefell v. Hodges, United States v. Windsor and Lawrence v. Texas, Barrett repeatedly stated these landmark cases are “binding precedents” that she will “faithfully follow if confirmed.”
Despite this assertion, some of her critics, like Daniel Goldberg, legal director of the progressive judicial advocacy group Alliance for Justice, are not convinced that Barrett will be constrained by “stare decisis,” the principle that judges should be bound by historical precedents.
“I think she is strongly supported by the social conservatives, partly because she has been explicit in her contempt for Roe v. Wade,” Goldberg said, adding, “I would have grave concerns that she will not feel bound by critical decisions like Obergefell.”
During her nomination, Barrett came under fire for delivering a lecture paid for by the Alliance Defending Freedom, a Christian conservative legal nonprofit based in Arizona that the Southern Poverty Law Center has designated as an anti-LGBTQ “hate group." ADF has submitted legal briefs against same-sex marriage in landmark cases including Obergefell v. Hodges and United States v. Windsor. The group also successfully argued a Supreme Court case on behalf of Masterpiece Cakeshop owner Jack Phillips, the Colorado baker who refused to bake a cake for a same-sex wedding because he said it would violate his religious beliefs.
When questioned about the speech during her confirmation, Barrett stated that 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.”
If confirmed, Barrett would be the youngest justice on the Supreme Court.
Barbara Lagoa, 52, was appointed by Trump to the 11th U.S. Circuit Court of Appeals last year. A Miami native, Lagoa was the first Latina and first Cuban American to serve as a justice on the Florida Supreme Court.
While her record on gay rights is sparse, her appointment to Florida’s high court garnered praise from John Stemberger, president of the Florida Family Policy Council, a conservative group that opposes LGBTQ rights.
Notable among her decisions is one this month allowing Florida to deny felons the right to vote in November if they have not paid all outstanding fees related to their cases. McGowan, of Lambda Legal, called the ruling the equivalent of a “modern day poll tax” and Goldberg, of the Alliance for Justice, said the decision revealed a “deep, deep contempt for the rights of voters.”
On Saturday, Trump told reporters Lagoa is an "extraordinary person."
"I’ve heard incredible things about her,” he said, adding, "She's Hispanic and highly respected."
Trump's past appointments
Lambda Legal opposed the nominations of three women Trump appointed to their current posts as judges on the U.S. Circuit of Appeals: Allison Jones Rushing, 38, on the 4th Circuit, based in Richmond, Va.; Allison Eid, 55, on 10th Circuit, based in Denver; and Joan Larsen, 51, on the 6th Circuit, based Cincinnati. The three were included on a list Trump released earlier this month, before Ginsburg's death, of potential Supreme Court nominees.
Rushing garnered attention at her confirmation for her association with Alliance Defending Freedom, where she interned as a law student in 2005, writing briefs defending ADF positions. She later spoke at ADF events at least once a year from 2012 to 2017.
Larsen has been criticized for her positions on key LGBTQ rights cases, such as her criticism of the high court's ruling in Lawrence v. Texas, which decriminalized gay sex. In another case, Marbry v. Marbry, Larsen argued against a lesbian mother seeking parental visitation.
Regarding Eid, Lambda Legal warned that her appointment to the federal bench could have a “far-reaching impact on the protections and freedoms of LGBT people for generations,” citing her unwillingness to “disavow the inflammatory language used by Justice Scalia and Justice Thomas in their dissents in cases like Obergefell v. Hodges and Lawrence v. Texas.”
Chandy, of the National Women's Law Center, called the judicial records of many Trump-appointed judges “troubling” and said she would be wary of any candidate put forward by the Trump administration because of its track record on LGBTQ rights.
“Through the entirety of this administration, LGBTQ rights have been under attack — in housing, in schools, in the workplace,” Chandy said. “This administration has sought to take away rights in all of these arenas.”
Also on Trump's list this month were Britt Grant, a judge on the 11th Circuit U.S. Court of Appeals, based in Atlanta; Diane Sykes, a member of the 7th Circuit U.S. Court of Appeals, based in Chicago; Margaret Ryan, a former judge on the U.S. Court of Appeals for the Armed Forces; Bridget Bade, a judge on the 9th Circuit U.S. Court of Appeals, based in San Francisco; Martha Pacold, a judge on the U.S. District Court for the Northern District of Illinois; Sarah Pitlyk, of the U.S. District Court for the Eastern District of Missouri; and Kate Todd, deputy assistant to the president and deputy counsel to the president.
During her time as Georgia’s solicitor general, Grant, 42, assisted in a brief regarding Obergefell v. Hodges that argued that defining marriage as between a man and a woman is not unconstitutional. Grant also worked on a 2016 brief in the case Gloucester County School Board v. G.G., where she argued against government regulations that allowed transgender students to use facilities in accordance with their gender identity.
Sykes, 62, was one of the judges in Hively v. Ivy Tech that argued that gay, lesbian and bisexual people are not entitled to the employment protections of Title VII. That decision was later overturned by the Supreme Court, which interpreted Title VII as prohibiting workplace discrimination based on gender identity and sexual orientation.
“I suspect she is on this list because of her strong dissent in that case,” McGowan, of Lambda Legal, said of Sykes.
Implications for LGBTQ rights
The next appointment to the high court could shape the future of LGBTQ rights for decades, advocates say. Trump has already confirmed over 200 judges including two Supreme Court justices — Neil Gorsuch and Brett Kavanaugh — in three and a half years in office. According to a 2019 report from Lambda Legal, a third of the more than 50 circuit court judges nominated by Trump have a “demonstrated history of anti-LGBTQ bias.”
“If another Trump justice is confirmed I have great fears for equality in this country for persons of color, for women and for LGBTQ Americans,” Goldberg said.
McGowan said the court is likely to have an impact on the exercise rights for LGBTQ people in many cases.
“There are obviously things that are front and center like undermining or overruling Roe v. Wade,” McGowan said. “For LGBT people, while I do not think that it’s a realistic fear that the Supreme Court would outright reverse Obergefell, we know the kind of damage the Supreme Court can do to immunize forms of discrimination against same-sex couples.”
McGowan cited, for example, the cases of married gay men currently fighting the State Department to have citizenship recognized for their children. “Those are the kinds of issues that we are continuing to need to litigate,” she said.
The court, currently split at 4-4 between conservatives and liberals after Ginsburg's death, will weigh in on such a case in the fall. In Fulton v. the City of Philadelphia, the court will decide whether faith-based child welfare organizations can reject same-sex couples and others whom they consider to be in violation of their religious beliefs.
“We should not be talking about this right now,” McGowan said of replacing Ginsburg. “We are so close to such an important election. The Supreme Court is at stake in this election, and we should not be rushing to fill this seat.”