Compass Gender Spotlight: Gender and the Judiciary

Amy Coney Barrett’s nomination to the Supreme Court has prompted concern for the future of women’s and LGBTQ+ rights in the U.S. (Flickr).

The death of Justice Ruth Bader Ginsburg last September sparked a mass outcry against the possibility of President Trump appointing a new Supreme Court justice in what could be the final months of his presidency. Ginsburg was famously an ardent defender of women’s rights on the bench—a status that has prompted concern about the future of women’s rights in a post-RBG world. House Speaker Nancy Pelosi, for instance, pointed to abortion rights and same-sex marriage as two of the key issues hanging in the balance depending on Trump’s nomination. These fears were exacerbated with the announcement of Amy Coney Barrett, known for her strict originalist interpretation of constitutional law, as the nominee. But Barrett’s confirmation on October 26 was not a sudden or novel threat to women’s and LGBTQ+ legal rights. Rather, it was the latest step in the Trump administration’s ongoing transformation of the federal judiciary. 

Landmark cases like Roe v. Wade, which lent constitutional grounds to abortion rights, and Obergefell v. Hodges, which guaranteed same-sex marriage in every state, have cemented the Supreme Court’s position as a key arbiter of women’s and LGBTQ+ rights. However, the highest court of the land is not the only place where legal rights hang in the balance—the decisions of the United States’ 94 federal district courts and 13 appellate courts have also had far-reaching consequences for women and the LGBTQ+ community. When Trump announced the rollback of Obama-era protections for transgender people in healthcare last June, for instance, it was a federal district court judge who blocked the policy change. But where there’s power to defend critical rights and protections, there’s also power to curtail them—and women’s and LGBTQ+ activists worry that the massive influx of Trump appointees to district and appellate courts will do just that. 

146* Angry (Mostly White) Men 

*as of July 2020

Trump and Senate Republicans have made it clear that appointing judges is a conservative priority. Early this year, Senate Majority Leader Mitch McConnell (R-KY) said, “Leave no vacancy behind.”

This sentiment is reflected in the sheer speed with which Trump and the Republican-controlled Senate have been pushing new judges through the confirmation process. Since Trump took office, the Senate has confirmed 220 Trump nominees as federal judges, including three Supreme Court justices—more than in any other president’s first term, with the exception of Jimmy Carter’s. Since January 2019, the Senate has approved on average 6.75 judges per month. It hasn’t hurt that thanks to McConnell’s refusal to hold confirmation votes for many nominees in President Obama’s last year in office, Trump took office with 103 empty federal court seats. By the close of his first three years in office, Trump had matched the number of appellate judges that Obama appointed in his entire eight-year presidency. 

In fact, this rapid pace has been enabled by Obama-era filibuster reform legislation intended to stop the Republicans from blocking federal appointments: while previously, federal judges needed a 60-vote supermajority in the Senate to advance to a final confirmation vote, this requirement was amended to a simple majority under Obama. Trump has used this to his advantage, as the majority of appellate judges appointed during his term have not had the support of a supermajority of senators.

Senator Mitch McConnell (R-KY) has aimed to fill vacant court seats with Trump nominees (Wikimedia Commons).

Trump’s judicial appointments stand out for their lack of diversity: 85 percent are white and 75 percent are men. He has not appointed a single Black appellate judge, and he has only appointed only one Latina. No president’s judicial picks have been so lacking in racial diversity since George H. W. Bush.

Though appellate judges appointed under Trump boast a median net worth of $2 million and overwhelmingly attended elite law schools, they are on average less experienced than judges appointed by prior administrations, with only 40 percent having previously served as judges. Several appointees were confirmed despite receiving unfavorable ratings from the American Bar Association.

Potentially the most important characteristic of Trump’s judges is their relative youth—with one-third of appellate appointees beginning their lifetime appointments at under 45 years old, a larger proportion than any of his recent predecessors, Trump’s nominees will be impacting American jurisprudence for decades to come. 

Beyond demography, the judges are notable for their partisan commitments: all but eight appellate judges were connected to the Federalist Society, a conservative legal organization, and only four had no prior political experience. Trump has created more partisan courts than ever before, explicitly referring to judges as an “Obama judge” or a “Trump judge,” and discussing “flipping” circuits. The highly partisan nature of judicial appointments under Trump is mirrored in the appointees’ Senate confirmations: Trump’s appointees received an average of 22.6 average “no” votes per confirmation, compared to previous Republican President George W. Bush’s average of just two. 

 “I intend to build such a fiercely conservative record on the court that I will be unconfirmable for any future federal judicial post—and proudly so,” Judge Don R. Willett once allegedly told Republican party leaders. Willett was appointed to a federal appellate court on a party-line vote.

The judges’ commitment to conservatism extends to women’s and LGBTQ+ rights. Lambda Legal reports that one in three of Trump’s circuit court nominees has a demonstrated history of anti-LGBTQ+ bias. At least eight wrote against legalizing gay marriage, and 18 have fought against abortion and contraception access. Mark Joseph Stern of Slate contends that what unites Trump-appointed judges is their desire to overturn Roe v. Wade and bring access to legal abortion down with it.

In 2019, Don McGahn, Trump’s White House counsel, said at a Federalist Society conference that previous administrations “tended to pick judges . . .  who were very deferential to those wielding governmental power”.

He continued, “Generally speaking, we did not.”

Bias on the Bench

The nominations of certain judges, in particular, have raised strong concerns among LGBTQ+ rights and pro-choice advocacy groups. 

Judge John K. Bush, nominated by Trump in the summer of 2017, now resides on the Sixth Circuit Court of Appeals. However, after his nomination, controversy arose surrounding highly conservative political blogs he wrote under a pseudonym. In one blog, Bush wrote that slavery and abortion were America’s “two greatest tragedies.” People for the American Way, a progressive advocacy group, wrote a letter opposing the confirmation, citing Bush’s bias in LGBTQ+ issues and reproductive freedom issues, raising examples including his use of an anti-gay slur in a speech and his mocking of same-sex couples. Furthermore, in 2006, Bush co-authored a paper criticizing the Kentucky court’s decision to prohibit laws condemning “criminal prosecution of consensual homosexual sodomy.” 

So far in his tenure, Bush has continued to raise eyebrows among advocacy organizations. In the 2019 case, Ermold v. Davis, in which Kim Davis refused to provide marriage licenses to same-sex couples, Bush agreed with the court in ruling against Davis. However, in his concurring opinion, Bush wrote “Obergefell answered some questions, but it also left many unanswered,” leaving room for further revaluation of Obergefell v. Hodges, the case that legalized same-sex marriage. In 2019, Bush also upheld a Kentucky law that required doctors to show and describe ultrasounds to patients before they received an abortion. The ACLU and other advocacy groups challenged this law, arguing that it would cause unnecessary psychological harm to patients.

The United States’ 94 federal district courts and 13 appellate courts have been influential in both extending and curtailing women’s and LGBTQ+ rights (Wikimedia Commons).

Another Trump-appointed appellate judge, Judge Lawrence VanDyke in the Ninth Circuit, has also received heavy criticism regarding his views on reproductive rights and LGBTQ+ issues. VanDyke is one of 21 nominees since 1989 that has been rated as “not qualified” by the American Bar Association based on 60 interviews with people that worked with VanDyke. Vanita Gupta, president and CEO of the Leadership Conference On Civil Rights, wrote in a letter to senators, “VanDyke has labored throughout his career to undercut civil and human rights, including LGBTQ+ equality [and] reproductive freedom.” 

In the letter, Gupta noted VanDyke’s active opposition to reproductive freedom. In defense of an Arizona abortion law, VanDyke requested that the Supreme Court “revisit” the precedent set in Roe v. Wade. He has also shown his support for other anti-abortion laws such as his defense of a Montana law that required minors who wanted an abortion to present notarized parental consent or a judicial bypass. The law was struck down by the Montana Supreme Court.

Gupta also cited numerous anti-LGBTQ+ comments and support for problematic cases such as his support of Christian Legal Society v. Martinez in which he argued for the ability of college groups to discriminate against LGBTQ+ individuals under First Amendment protections. While the Supreme Court ruled against VanDyke’s argument, on a Senate questionnaire, VanDyke ranked this as one of his career’s top ten most significant cases. 

Other Trump-appointed judges have also taken clear aim at abortion and LGBTQ+ rights. Judge James Ho, nominated by Trump and confirmed on the Sixth Circuit Court of Appeals, defended a Texas law that requires “fetal remains” to be buried or cremated. Opponents argued that this law created an “undue burden” on women seeking an abortion. Another Trump nominee, Judge David Stras in the Eighth Circuit, argued that a Minnesota anti-discrimination law violated a videographer’s First Amendment rights to religious freedom by requiring them to provide services to same-sex couples as well. 

A Polarizing Precedent 

Barret’s appointment has sparked national discussion about the shortcomings of the American judicial system, and substantial controversy over the possibility of Biden increasing the number of Supreme Court justices if elected. While opponents say that would be a massive overreach, some eye the recent influx of conservative judges at all levels of the federal judiciary and argue that it wouldn’t go far enough. Christopher Kang of advocacy group Demand Justice told Financial Times that Biden should look to increase the number of judges not just on the Supreme Court, but on the federal appellate courts as well. 

Regardless of the outcome of the upcoming election, the Trump administration has left a far-reaching legacy in the judicial system that could influence LGBTQ+ and women’s rights for years to come. But the judges themselves won’t be the only lasting impact—the aggressive strategies to fill open seats by Republicans under Trump will likely be mimicked under future administrations. Democratic senators such as Mazie Hirono (D-HI) and Richard Blumenthal (D-CT) have publicly affirmed their willingness to continue the Trump-era policy of not requiring a nominee’s home-state senators to sign off on their nomination under a Biden presidency. 

The court system, with its lifetime appointments and nominal impartiality, has since its inception been looked to as the most stable branch of the U.S. federal government. But as leaders increasingly race to leave their partisan stamp on the judiciary, the outlook of women’s and LGBTQ+ rights may not be so stable after all.