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Donald Trump’s Supreme Court shortlist is stacked with anti-LGBTQ extremists

August 26, 2018 - Signs at a Unite for Justice rally against Supreme Court nominee Brett Kavanaugh in Lower Manhattan.
August 26, 2018 - Signs at a Unite for Justice rally against Supreme Court nominee Brett Kavanaugh in Lower Manhattan. Photo: Shutterstock

Donald Trump has released a new list of potential Supreme Court nominees that includes many anti-LGBTQ judges, lawyers, and politicians.

If Trump wins another term this fall, he would have four more years to nominate the people on this list – or others like them – to lifetime seats on the Supreme Court, where they would have a chance to roll back major LGBTQ victories like marriage equality and anti-discrimination laws.

Related: Trump’s record on LGBTQ rights has been vile from the moment he took office. We kept a list.

“The Trump Administration released a new list of dangerous, ultra-conservative ideologues as potential nominees for the highest court in the land,” said Sharon McGowan of the LGBTQ legal organization Lambda Legal. “This list is teeming with individuals who have alarming anti-LGBTQ and anti-civil rights records, which should be disqualifying for any judicial nominee, let alone a nominee for the Supreme Court.”

In a list published on the White House website, Trump says that he’s considering Senators Ted Cruz (R-TX), John Hawley (R-MO), Tom Cotton (R-AR) for lifetime appointments to the Supreme Court. Cruz and Cotton have anti-LGBTQ voting records in the Senate, getting a score of “0” on HRC’s Congressional Scorecard for the past several years (Hawley assumed office in 2019 and isn’t on the scorecard yet).

In 2015, when the Supreme Court legalized marriage equality in all 50 states in its Obergefell v. Hodges decision, Cruz said that day was “among the darkest hours of our nation” and accused the Supreme Court justices of “violating their judicial oaths” by finding that same-sex couples had equal rights to opposite-sex couples.

Hawley said that the Supreme Court’s Bostock v. Clayton County decision – which established that Title VII’s ban on discrimination “because of sex” also banned discrimination against LGBTQ people – “represents the end of the conservative legal movement.”

Cotton said in 2012 that he “supports the traditional understanding of marriage as the union of one man and one woman” and he would later go on to co-sponsor (with Cruz and other senators) the First Amendment Defense Act (FADA), which would ban the government from taking action against organizations that have “religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman,” effectively expanding religious exemptions for anti-LGBTQ organizations.

Also on Trump’s list is former U.S. Solicitor General Noel Francisco, who authored a number of briefs for the Trump administration opposing LGBTQ rights. Francisco was behind the Justice Department briefs that argued that adoption agencies had a right to state funds even if they refuse to work with same-sex couples, that employers could fire gay or bisexual or transgender people under federal law, and that anti-gay bakers have a right to refuse to serve same-sex couples.

The Supreme Court ultimately ruled against the Trump administration’s positions on job discrimination in its June Bostock v. Clayton County decision, but Francisco would have a chance to overturn that precedent if he’s named to the Supreme Court.

Fifth Circuit Court of Appeals Judges Kyle Duncan and James Ho are both on the list too, both of whom Lambda Legal says are “some of the most anti-LGBTQ activists sitting on the bench today.” Earlier this year, Duncan ruled that transgender people have no right to be called by their correct pronouns, saying that doing so would “raise delicate questions about judicial impartiality.” In a separate case, Ho ruled that gender affirmation health care for transgender people is “a matter of significant disagreement within the medical community.”

Ninth Circuit Court of Appeals Judge Lawrence Van Dyke is also on the list. Van Dyke – whose former colleagues said was “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules” when Trump nominated him to federal court last year – famously cried during Senate confirmation hearings when called out for his past opposition to LGBTQ rights.

Paul Clement, who was U.S. Solicitor General under George W. Bush, was tapped by conservatives in 2011 to defend the Defense of Marriage Act in court, and he’s also on Trump’s list. In a brief, he argued that the government’s ban on marriage equality was necessary to protect children from the “unknown consequences of a novel redefinition of marriage.”

“The impact that another anti-LGBTQ nominee could have on the Supreme Court would be catastrophic,” said McGowan. “For over three years, this administration has pulled out all of the stops in its attempt to weaponize our federal courts in service of a dangerous right-wing agenda and at the expense of true justice and equal rights for all.”

“It is up to us to speak out against this assault on our system of justice, and be active participants rather than mere spectators in our democracy. We cannot count on the courts to protect us if we do not protect our courts.”

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