Trump Is Filling Court Seats With Anti-LGBTQ, Anti-Abortion Judges

"Trump’s speed in nominating judges has been perhaps the most successful aspect of his presidency."
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Candidate Donald Trump said he supported lesbian, gay, bisexual and transgender rights. President Donald Trump is eroding those rights in a number of ways, including by putting anti-LGBTQ judges onto federal courts.
Carlo Allegri / Reuters

WASHINGTON ― Thursday was a good day for Amy Coney Barrett. A Senate committee voted to advance her nomination to be a federal judge.

It wasn’t a pretty vote. Every Democrat on the Judiciary Committee opposed her nomination. They scrutinized her past writings on abortion, which include her questioning the precedent of Roe v. Wade and condemning the birth control benefit under the Affordable Care Act as “a grave infringement on religious liberty.” One Democrat, Al Franken (Minn.), called her out for taking a speaking fee from the Alliance Defending Freedom, a nonprofit that’s defended forced sterilization for transgender people and has been dubbed a hate group by the Southern Poverty Law Center.

But Republicans don’t need Democrats’ votes, and now Barrett, a 45-year-old law professor at the University of Notre Dame, is all but certain to be confirmed to a lifetime post on the U.S. Court of Appeals for the 7th Circuit — a court one level below the Supreme Court.

Barrett is the model judicial candidate for this White House: young, conservative, and opposed to abortion and LGBTQ rights. For all the stories about President Donald Trump using his executive power to roll back civil rights protections — in the past day, his administration axed the ACA birth control benefit and ended workplace protections for transgender people — it is here, on the courts, where his team is working most aggressively to reshape the country.

“Trump’s speed in nominating judges has been perhaps the most successful aspect of his presidency,” said Carl Tobias, a law professor at the University of Richmond who specializes in judicial nominations. “Trump has easily surpassed Obama, Bush and Clinton at this point in the first year of their presidencies in terms of the sheer number nominated.”

He has. Ten months in, Trump has nominated 17 circuit court judges and 39 district court judges. That’s far more than former President Barack Obama’s 10 circuit court nominees and eight district court nominees by this point in his first year of office. Former President George W. Bush had nominated 14 circuit judges and 32 district judges by this point.

He’s also got more court seats to fill. He inherited a whopping 108 court vacancies when he became president ― double the number of vacancies Obama inherited when he took office. That’s largely due to Republicans’ years-long strategy of denying votes to Obama’s court picks to keep those seats empty for a future GOP president to fill. It worked.

If Trump’s current judicial nominees are a preview of the kinds of judges he plans to nominate in the coming years, prepare for a significantly more socially conservative group of people shaping the nation’s laws.

Consider John Bush. The Senate confirmed him in July, on a party-line vote, to a lifetime post on the U.S. Court of Appeals for the 6th Circuit. Bush, 52, has compared abortion to slavery and referred to them as “the two greatest tragedies in our country.” He has also said he strongly disagrees with same-sex marriage, mocked climate change and proclaimed “the witch is dead” when he thought the Affordable Care Act might not be enacted.

The Senate also confirmed Kevin Newsom, 44, to the U.S. Court of Appeals for the 11th Circuit in August. He wrote a 2000 law review article equating the rationale of Roe v. Wade to Dred Scott v. Sandford, the 1857 decision upholding slavery. He also argued in a 2005 article for the Federalist Society, a right-wing legal organization, that Title IX does not protect people who face retaliation for reporting gender discrimination. The Supreme Court later rejected that position.

Ralph Erickson, 58, was confirmed to the U.S. Court of Appeals for the 8th Circuit in September. As a district judge in 2016, he was one of two judges in the country who ordered the federal government not to enforce health care nondiscrimination protections for transgender people.

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Here's U.S. circuit court judge John Bush testifying in his Senate confirmation hearing in June. He thinks abortion is like slavery, and they are “the two greatest tragedies in our country.”

These are just judges that have been confirmed. Nominees in the queue include Leonard Grasz, Trump’s pick for a seat on the U.S. Court of Appeals for the 8th Circuit. Grasz, 56, proposed amending the Omaha City Charter in 2013 to let employers discriminate against LGBTQ people. He has also compared the “personhood” of fetuses to the civil rights of Native Americans and African-Americans, according to an exhaustive report issued by the Alliance for Justice, a left-leaning advocacy group that focuses on the federal judiciary.

Trump’s effort to shift the federal bench to the right isn’t just aimed at district and circuit courts. He nominated Damien Schiff, a 37-year-old attorney, to a 15-year gig on the U.S. Court of Federal Claims. Schiff has criticized efforts to prevent bullying of LGBTQ students, referring to messages of equality as “teaching ‘gayness’ in schools.” He also argued that states should be allowed to criminalize “consensual sodomy.”

Part of the reason the White House has been able to nominate so many judges, so quickly, is because it’s been focused on filling court vacancies in states represented by two Republican senators. It’s easier for Trump’s team to work with Republicans in picking nominees, and then in moving them forward in committee, where it takes both home-state senators turning in a “blue slip” to get the hearing process going.

Trump has been less successful in confirming nominees, though. That’s partly because in the mad rush to fill courts seats, the White House isn’t reviewing nominees’ records as thoroughly as, say, the Obama administration did. That means more controversial nominees and more scrutiny. Democrats aren’t exactly eager to cooperate, either, given the way Republicans treated Obama’s judicial nominees (remember Merrick Garland?).

But as Trump plows through judicial nominations that will be a part of his legacy for decades, the only thing Democrats can do while they’re in the minority, for the most part, is make noise.

If they want real change, says Tobias, “Democrats need to win elections.” 

CORRECTION: This article originally stated that in the first ten months of former President Barack Obama’s presidency, he appointed seven circuit court nominees and four district court nominees. Obama appointed 10 circuit court nominees and eight district court nominees by this point in his first year of office. This article originally stated former President George W. Bush had nominated 11 circuit judges and 31 district judges by this point. However, Bush had nominated 14 circuit judges and 32 district judges by this point.

Before You Go

Myths About Abortion That Need To Be Busted
MYTH: Abortion is dangerous.(01 of 08)
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REALITY: Over 99.75 percent of abortions do not cause major medical problems.Less than one-quarter of 1 percent of abortions performed in the United States lead to major health complications, according to a 2014 study from the University of California, San Francisco, that tracked 55,000 women for six weeks after their abortions. The researchers note that this makes an abortion statistically about as risky as a colonoscopy.If that fact seems surprising, consider how American pop culture misrepresents the risks of abortion: Nine percent of film and television characters who have abortions die as a direct result of the procedure, according to another 2014 study from UCSF. (credit: Getty Images)
2. MYTH: Medical abortions -- those performed using pills -- are still fringe.(02 of 08)
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REALITY: About one in five abortions are medical abortions.The Centers for Disease Control and Prevention found that 19 percent of abortions in 2011 were medical abortions and that 28.5 percent of those took place in the first nine weeks of pregnancy. The Guttmacher Institute also found that medical abortions increased substantially from 2008 to 2011, meaning more women have ended their pregnancies with this alternative to surgery.

3. MYTH: Women who get abortions will regret it, and are more likely to suffer mental health issues.
(03 of 08)
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REALITY: Most women will not regret their decision, and are no more likely to experience mental health problems than women who carry an unplanned pregnancy to term.While many women experience mixed emotions after an abortion, 95 percent of women who have abortions ultimately feel they have made the right decision, according to an August 2013 study from UCSF. "Experiencing negative emotions postabortion is different from believing that abortion was not the right decision," the researchers explained. Furthermore, while unplanned pregnancies often cause emotional stress, there is no evidence to suggest that women who choose to terminate their pregnancies will be more likely to suffer from mental health issues, according to a 2008 report from the American Psychological Association that investigated all relevant medical studies published since 1989.The APA found that past studies claiming abortion causes depression and other mental health problems consistently failed to account for other risk factors, particularly a woman's medical history. The APA accounted for these factors and found that, among women who have an unplanned pregnancy, those who have abortions are no more likely to experience mental health problems than those who carry the pregnancy to term.
4. MYTH: Fetuses experience pain during abortions.(04 of 08)
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REALITY: Fetuses cannot feel pain until at least the 24th week of pregnancy. Experts ranging from Britain’s Royal College of Obstetricians and Gynaecologists to the American Congress of Obstetricians and Gynecologists agree with that timeline. In fact, research from UCSF found that fetuses can't perceive pain before 29 or 30 weeks of development.Then why have so many states banned abortions after 20 weeks of pregnancy? Perhaps misrepresentation of research is partly to blame: Many of the researchers most frequently cited by pro-life politicians told The New York Times that their research does not prove anything about fetal pain.
5. MYTH: The majority of Americans don't think abortion should be legal.(05 of 08)
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REALITY: Most Americans support a woman's right to choose.According to a Gallup poll from 2014, 78 percent of Americans think abortion should be legal in some or all circumstances. (Fifty percent said "some circumstances," while 28 percent said all.) What's more, in 2012, Gallup found that 61 percent of Americans think abortions that take place during the first trimester of pregnancy should be legal. (Nine out of 10 abortions in the U.S. do take place during that time period, according to Guttmacher.) (credit: Getty )
7. MYTH: Most American women have easy access to abortions.(06 of 08)
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REALITY: Women face a growing number of barriers to accessing abortions.More than 57 percent of American women live in states that are hostile or extremely hostile to abortion rights, according to the Guttmacher Institute. That represents a marked increase from 2000, when 31 percent of American women lived in such states. In 2011, 89 percent of counties in America had no abortion clinics. This is no accident: Across the U.S., lawmakers have enacted 231 new abortion restrictions over the past four years, according to a Guttmacher analysis from January 2015. As a result, many women have to travel great distances to reach an abortion clinic, where they may face 24-hour wait periods. These barriers particularly affect women living in rural areas and low-income women, who often can't afford to take time off work and pay for gas and a hotel room. Other laws force women to go through potentially distressing procedures, such as viewing their own ultrasound photos, in order to move forward with an abortion.
9. MYTH: Women would never have abortions if they knew what it was like to have a child.(07 of 08)
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REALITY: Most women who have abortions are already mothers.Sixty-one percent of women who had abortions in 2008 were mothers, and 34 percent had two or more children, according to the Guttmacher Institute. That number only increased after the 2009 financial downturn. The National Abortion Federation told Slate that between 2008 and 2011, 72 percent of women seeking abortions were already mothers. A study from Guttmacher found that mothers typically have abortions to protect the children they already have; they simply cannot afford to raise another child. (credit: Getty Images)
10. MYTH: It is dangerous to perform abortions in clinics that do not meet the same standards as ambulatory surgical clinics. (08 of 08)
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REALITY: Requiring abortion clinics to meet these standards does little to improve patient safety and forces many to shut down.Currently, 22 states require abortion clinics to meet a set of restrictive and often arbitrary standards, dictating that they be close to hospitals and that their hallways and closets meet certain measurements. Clinics often need to undergo expensive renovations in order to comply, and leading doctors' groups say the laws do little to improve patient safety.What's more, 11 states now require that doctors at abortion clinics obtain admitting privileges at a nearby hospital, but many hospitals flat-out refuse to grant these privileges. As a result, hospitals essentially have the power to shut down nearby clinics. (credit: Getty Images)
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