Republicans have decided that ensuring a right-wing Supreme Court is more important than respecting the wishes of Ruth Bader Ginsburg or nearly two-thirds of the American public. The raw power play will only polarize the nation more, but Senate Majority Leader Mitch McConnell (R-KY) believes that making the future safe for conservatives is worth more than any political price the GOP will have to pay.
Trump has promised that the next nominee will be a woman, and he’ll announce her nomination this Saturday. Theoretically, there are five or six women on the shortlist. All of them are tightly connected to the right’s judicial machinery, and all of them have the blessing of the Federalist Society, the anti-LGBTQ group to which Trump has outsourced his judicial nominees.
At least one of them, federal judge Allison Jones Rushing, helped build her career by working for Alliance Defending Freedom (ADF), the legal group that battled marriage equality and is now using a religious liberty argument to gut nondiscrimination protections. At 38, Rushing would be one of the youngest Supreme Court justices ever. Given the longevity of the Supreme Court Justices, she could still be handing down opinions in 2070.
However, Rushing and the other women whose names are being floated seem largely to be filler for a list. It’s a sign of how weak the GOP is with women in general, something that carries over to Congressional representation.
The two candidates who are in contention to be Ginsburg’s replacement are Amy Coney Barrett and Barbara Lagoa. Both of them would do their best to peel back any gains LGBTQ people have made over the past decade.
Barrett is widely touted as the frontrunner for the spot. A conservative Catholic, she graduated from Notre Dame Law School, where she became a law professor. Trump appointed her to the U.S. Court of Appeals in 2017.
Barrett was a finalist for the nomination that eventually went to Brett Kavanaugh. In fact, the American Family Association, the anti-LGBTQ hate group, thought Kavanaugh was too squishy and preferred Barrett instead. Her opposition to Obamacare and abortion rights makes her the right’s dream candidate.
They had a good reason. Barrett began her legal career clerking for Supreme Court Justice Antonin Scalia, the saint of the anti-LGBTQ right. Her supporters say that she is, like Scalia, an originalist, which means that if it wasn’t happening in 1787 when the Constitution was signed, it won’t be happening in 2020.
That specifically includes advances like marriage equality.
“My guess is that Judge Barrett wouldn’t assume that the judicial role carried that much power with it” to grant marriage equality, John Garvey, one of her law professors, told The New York Times.
Barrett hasn’t been shy about her hostility to marriage equality, as Lambda Legal has chronicled. In a letter to a Catholic group about marriage equality, she stated that “marriage and family [was] founded on the indissoluble commitment of a man and a woman.”
Worst of all, she delivered a lecture paid for by ADF. She at first claimed she hadn’t vetted the group before accepting, which defies credibility, saying she just knew that the program on which she appeared supported “traditional marriage.” She then tried to downplay ADF’s hateful reputation by saying that there was “public controversy” about the issue.
Barrett has also taken aim at transgender individuals, as HRC points out. She has referred to transgender women as “physiological males” and has said that extending Title IX protections to transgender people was “a strain on the text” of the law.
Like Barrett, Lagoa is a conservative Catholic adored by the religious right. A Cuban-American who graduated from Columbia Law, Lagoa was appointed to the Florida Supreme Court by Republican Gov. Ron DeSantis in January 2019 and just ten months later was nominated for the US Court of Appeals by Trump.
Lagoa’s track record on LGBTQ issues is a lot lighter than Barrett’s, but there’s no reason to think she would rule any differently. She has spoken before the Thomas More Society, a group of conservative Catholic lawyers that opposes marriage equality and defends homophobic wedding cake bakers. Lagoa’s biggest ruling so far has been upholding Florida’s requirement that felons pay the state a fee before having their voting rights restored, a decision criticized as a kind of poll tax.
Since Trump acts on a whim, he could pick Lagoa or someone else entirely. Since the president is so focused on re-election, he may think that a pick from Florida would cement his chances there.
No matter who Trump picks, it will be disastrous for LGBTQ Americans for decades to come.
With a 6-3 majority on the Court, the chances of progress are dim at best. What’s worse is the erosion of progress to date. The conservative majority may not overturn rights altogether–but don’t underestimate them. At a minimum, they will make a steady drip of rulings that will carve out exception after exception to our rights, leaving them open to even more assaults in the future.