Whether Donald Trump gets voted out in 2020 or remains in office for another six years, his administration's impact will be felt for decades, if not longer. A new report published Wednesday examines this impact in terms of the judiciary -- specifically, the confirmation of admittedly anti-LGBTQ judges, from the courts of appeals all the way up to Brett Kavanaugh.
The report, authored by Lambda Legal -- a national nonprofit focused on LGBTQ civil rights through advocacy and policy work -- explores the Trump administration's "Judicial Assault" on queer and trans Americans' rights, paying particular attention to the alarming rate at which circuit court judges, many of them deemed "not qualified" by the American Bar Association, have been confirmed since the President took office.
Per the report, the Trump administration has confirmed 30 circuit court judges since 2016 -- nearly double the amount of circuit court judges that the previous administration had confirmed by the end of Obama's first two years in office. Sharon McGowan, Lambda Legal's Chief Strategy Officer and Legal Director, attributes this rapid pace to the outsourcing of the judicial vetting process to right-wing organizations and the intentionally rushed senate hearings for Trump nominees.
"In the past, the White House would consult with senators from the state where the judge would sit, accept recommendations from state senators, or maybe draw from a list of names put forth by the state's bar association," McGowan tells Out. "What we are seeing right now is a much more closed off, much more secretive process that outsources this vetting to conservative organizations like the Federalist Society and the Heritage Foundation to essentially let them decide who will be nominated for these positions."
Because of this "outsourcing" of the vetting process, the Trump administration has nominated people like Fifth Circuit judge Kyle Duncan, Third Circuit judge David Porter, and Tennessee District Court judge Mark Norris -- all of whom, McGowan says, aim to push an "explicitly anti-LGBT" agenda.
After the nomination comes confirmation hearings, and, according to McGowan, that process has also changed dramatically under Trump.
"What's supposed to happen is that the nominee submits a questionnaire to the Senate Judiciary Committee, then attends hearings where senators will question them about their views, their background, what kind of judge they would be, says McGowan. "We're seeing this process diluted, with Committee Chair Chuck Grassley stacking a whole bunch of people on a panel. The senators are lucky if they even get five minutes to ask questions, while the nominees, who will serve for life if confirmed, give nothing-answers to run down the clock."
"The senate hearings were a guardrail to keep people who've written offensive things about people of color and whole tomes about LGBT people being delusional off the bench, and now those guardrails are off. The process has been rigged to force these folks through without so much as a speed bump."
While McGowan finds these judicial nominations concerning and "something we should pay close attention to," she doesn't foresee them leading to a full-scale reversal of previous court rulings that favored of LGBTQ rights like Obergefell v. Hodges, United States v. Windsor, or Lawrence v. Texas. Still, justices within the United States' 12 circuit courts -- five of which are now composed of more than one-quarter Trump-nominated judges -- might find ways to chip away at those rulings, holding by holding (see the Arkansas birth certificate debacle from a couple of years ago), as they take cues from the Supreme Court, which now includes two Trump nominees: Neil Gorsuch and Brett Kavanaugh.
"Stay engaged," says McGowan. "We'll be fighting an uphill battle over the next couple of years, but it's not an unwinnable one."