The Senate could confirm several anti-LGBTQ+ judges during Pride Month
And the Judiciary Committee is poised to hold hearings on even more.
The U.S. Senate returns to Washington today, and its agenda is set: Tonight, senators will vote to end debate on the nomination of Katie Lane, nominated to the District of Montana, before likely turning to her confirmation tomorrow. Next up is District of Kansas nominee Jeffrey Kuhlman. And if Majority Leader John Thune files cloture on more nominations, additional nominees could be confirmed to lifetime judgeships before the week is over.
Lane, who is a lawyer at the Republican National Committee, was rated Not Qualified by the American Bar Association’s Standing Committee on the Federal Judiciary because of her astonishing lack of experience. Her short legal career has been defined by a demonstrated hostility to civil and human rights, including voting rights, abortion access, and LGBTQ+ equality.
That the Senate is beginning Pride Month by voting on her nomination is an insult to queer people in America and to all who believe in civil and human rights, a fair judiciary, and equal justice for all.
Lane is not the only anti-LGBTQ+ (and anti-trans in particular) judicial nominee who could be confirmed to a lifetime judgeship this month. Trump’s personal lawyer Justin Smith, whose nomination to the Eighth Circuit is pending on the Senate floor, could be next. In a blog post, Alliance for Justice (AFJ) and Lambda Legal outlined Smith’s dangerous record. “Throughout his career defending anti-LGBTQ+ laws, he’s repeatedly used inappropriate and dehumanizing language while advocating for policies that enshrine ugly discrimination,” they wrote. “That record raises serious concerns about whether he can serve fairly and impartially on the federal bench.”
They note that Smith “represents the Arizona legislature, defending an anti-transgender law that bans transgender girls from competing on school sports teams” and that he represented a hate group “defending a Missouri law that banned gender-affirming medical care for minors.”
Tony Powell, nominated to the District of Kansas, also awaits votes on the Senate floor. AFJ says that as solicitor general of Kansas, Powell (along with Attorney General Kris Kobach) “sued the Kansas Department of Revenue (‘KDOR’) for allowing transgender Kansans to be identified on their driver’s licenses by their gender instead of their biological sex at birth.” After losing in court, Powell and Kobach filed an additional motion and received symbolic monetary sanctions of $1 each because they didn’t have jurisdiction and “should have known” better. “Powell’s passionate defense of this discriminatory law demonstrates his willingness to advance restrictions on transgender individuals,” AFJ says. “Such views align him with broader attacks on LGBTQ+ communities.”
Trump’s nominee to an Ohio seat on the Sixth Circuit, Benjamin Flowers, has worked aggressively to restrict the rights of transgender people in numerous ways. He is set to receive a vote in the Senate Judiciary Committee next Thursday, June 11 — making him eligible for consideration by the full Senate as soon as the week of June 15.
Last September, Flowers filed a brief before the Supreme Court of Ohio on behalf of the Independent Women’s Forum (IWF) and the Center for Christian Virtue defending the constitutionality of Ohio’s law banning gender-affirming medical care for transgender youth. Flowers’ brief stated that “Gender dysphoria is a mental illness” and referred to it as an “ideology-driven push to maim vulnerable children.” The brief, on which he is listed as the counsel of record, said that “The push to medically transition children is a profound scandal that has dramatically undercut the credibility of the medical profession.” Appallingly, his brief stated that “Future generations will, one hopes, view this disturbing chapter of medical history the way that ours views the eugenics movement.”
He also previously worked with IWF on a brief in opposition to the Biden administration’s Title IX regulations prohibiting discrimination based on sexual orientation and/or gender identity. And he is the counsel of record on an America First Legal brief arguing against the right of transgender students to use a communal restroom consistent with their gender identity at an Ohio school.
Flowers attacked trans children again when he filed a brief in September before the U.S. Supreme Court in Little v. Hecox and West Virginia v. B.P.J. — two cases this term that center around the freedom of transgender youth in America to participate in school sports. Flowers is again listed as the counsel of record on the brief, which was filed on behalf of the United States Conference of Catholic Bishops. In an X post, Flowers wrote that his brief “explains why neither the Equal Protection Clause nor Title IX entitles males to compete in girls’ and women’s sports. And it shows that a contrary ruling on the Title IX issue could have negative implications for Catholic schools and institutions.”
Matthew Schwartz, Trump’s personal attorney who has been nominated to a New York seat on the Second Circuit, will also receive a committee vote next Thursday. As I previously covered, Schwartz wrote an article while he was a student at Princeton strongly condemning the university for allowing its chapel to host a same-sex wedding. Schwartz wrote that “The homosexual community is fighting a crusade not only for its misconceived notion of equal rights, but also for religion to recognize and approve homosexual lifestyles.” He referred to homosexuality as a “capital crime” — meaning punishable by death — and decried the “emotional harm” the ceremony caused when he attended the university. During his confirmation hearing last month, Schwartz said that the language he used in the article was “harsh, unacceptable, and reflected my views as a teenager” — but it is difficult to believe that his deeply held personal and religious beliefs have completely changed in the years since.
Additional nominees with anti-LGBTQ+ records will be considered by the Judiciary Committee in June and will then be eligible for full Senate consideration beginning in July, including Daniel Traynor (Eighth Circuit), Angela Colmenero (Southern District of Texas), and Matthew Byrne (Southern District of Ohio).
And of course, the Senate has already confirmed many anti-LGBTQ+ judges since Trump’s return to office, including Whitney Hermandorfer (Sixth Circuit), Josh Divine (Eastern and Western Districts of Missouri), William Mercer (District of Montana), Jordan Pratt (Middle District of Florida), Edmund LaCour (Northern District of Alabama), Justin Olson (Southern District of Indiana), Anna St. John (Eastern District of Louisiana), Ed Artau (Southern District of Florida), James Maxwell (Northern District of Mississippi), and Eric Tung (Ninth Circuit). Anti-LGBTQ+ animus was a hallmark of Trump’s first-term judicial appointees as well.
Happy Pride.