Republican presidential hopeful Donald Trump has said for a long time that, when it comes to U.S. Supreme Court justices, he likes people like Clarence Thomas and Antonin Scalia. Last week, as the Republican Party’s presumptive nominee for the White House, he released a list of judges he thinks might fill the bill should he get to nominate someone to the nation’s highest court.
The list contained 11 names –six judges on federal appeals courts, six on state supreme courts. All are relatively conservative and some clerked for Scalia or Thomas. Many have addressed an LGBT-related case in the course of their careers on the bench and, most of the time, their rulings came down against the LGBT party to the case.
The purpose of the list appears to be an attempt by Trump to reassure Republicans who worry that, as president, he would not be reliably conservative. In March, he reassured them that the reliably conservative Heritage Foundation was helping him prepare the list. The Foundation spends a great deal of time and resources to oppose such things as marriage equality, transgender accommodation to public restrooms, and religious exemptions to non-discrimination laws.
In a May 19 interview with Fox News’ Sean Hannity, Trump emphasized that he got help preparing the list from reliably conservative Federalist Society and U.S. Senator Jeff Sessions (R-Alabama). And initial reaction to the list from various conservative groups and figures was strongly supportive.
But Trump also gave himself some wiggle room. In a May 18 press release announcing the list, Trump couched the list as “representative of the kind of constitutional principles I value” and that he would use it as a “guide” in choosing a Supreme Court nominee. In a Twitter post that night, he said he “may be adding to the list.” The next day, he told Hannity, “This would be the list I would either choose from or pick people very close in terms of the spirit and the meaning of what they represent.”
Columnists in various conservative publications and blogs began to pick up on the hedge. One, in the National Review, said it “smacks of desperate pandering to conservatives” and questioned whether Trump “actually means any of this….” Another, from the Volokh Conspiracy, called the list “meaningless,” saying that Trump’s calling it a “guide” is “not a commitment to choosing from the list.”
Even the head of a Heritage Foundation affiliate told Fox News Sunday the list “gets a question mark at the end…. Does he really mean it? Is this a fraud?”
National LGBT legal groups did not respond to requests for comments on the list, but given Trump’s well-known proclivity for self-contradiction and memory lapse, the future value of his Supreme Court list is a “question mark.” For whatever value it might have now in providing a guide to Republican presidential candidate’s mindset, here is a glimpse into what the records of the 11 judges are on LGBT-related concerns:
Steven Colloton of Iowa, 53, 8th Circuit U.S. Court of Appeals: In a decision he authored for a 2 to 1 majority in December 2005, Colloton affirmed immigration authorities’ decisions to deny asylum to a gay man from Zimbabwe. William Kimumwe came to the U.S. three years after Zimbabwe President Robert Mugabe declared homosexuality to be illegal and began making anti-homosexual pronouncements. The immigration judge said that Mugabe’s hostility to gays was “insufficient to establish a well-founded fear” of persecution. Colloton said Kimumwe did not establish evidence that his return to Zimbabwe would necessarily lead to “serious mistreatment.” In September 2013, Colloton authored a 2 to 1 panel decision that said a district court had wrongly denied a preliminary motion to an evangelical Christian that would have enabled him to distribute Bibles during a Twin Cities Pride Festival in a public park in Minneapolis. But Colloton also joined a unanimous three-judge panel decision in December 2006 that affirmed the right of a group of pro-LGBT students to a preliminary injunction that gave them equal access to facilities at their public school.
Thomas Hardiman of Pennsylvania, 50, 3rd Circuit U.S. Court of Appeals: In August 2009, Hardiman wrote an opinion for a three-judge panel, saying a gay man could not say he was discriminated against because of religion because his employer fired him because the employer’s religious beliefs were that “a man should not lay with another man.” However, the Hardiman panel ruled that the gay employee’s claim that he was discriminated against “because of sex” should have been submitted to a jury.
Raymond Kethledge of Michigan, 49, 6th Circuit U.S. Court of Appeals: Kethledge joined a 2 to 1 majority in a 2012 decision that dismissed the claims of three pastors who said the federal Matthew Shepard-James Byrd Hate Crimes Prevention Act violated their religious beliefs against gay people. The three claimed they had a right to exercise their religious beliefs by publicly denouncing homosexuality and that the Hate Crimes law would chill their exercise of religion. The majority agreed with the district court that, because the pastors were attempting to try a hypothetical situation, they did not having standing to challenge the law. In 2012, Kethledge joined a panel decision against a man who was subjected to relentless harassment by another male employee. The panel said the victim’s claim of a hostile work environment under Title VII of the Civil Rights Act could not stand because the man could not prove that his harasser was bisexual or gay. That same year, Kethledge also joined a panel decision that ruled against a woman who lost her job with a university in Ohio after she penned an op-ed piece for a local newspaper objecting to comparisons between the black and gay civil rights movements. The op-ed also expressed opposition to non-discrimination policies that she was responsible for enforcing at the university.
Diane Sykes of Wisconsin, 58, 7th Circuit U.S. Court of Appeals: Sykes wrote a 2 to 1 panel decision in 2006 that granted the Christian Legal Society a preliminary injunction to be recognized as a student group at the Southern Illinois University School of Law despite its policy of banning gay members, in violation of campus policy. In 2009, Sykes authored a three-judge panel decision that ruled against two employees who claimed their religious beliefs against homosexuality caused them to be subjected to discrimination based on religion by their employer. The panel decision noted that one employee “repeatedly violated” the employer’s overtime policy and the other had “a long history of performance problems.” In 2013, Sykes authored a panel decision that upheld the right of businesses to cite the religious beliefs of their owners to discriminate against employees by denying health coverage for contraception. In writing the opinion, she discussed a hypothetical case of a pie-making company run by devout Baptists refusing coverage to a gay employee’s spouse and child. She said it was “far from clear” how the case would come out.
Raymond Gruender of Missouri, 52, 8th Circuit U.S. Court of Appeals: In 2008, Gruender joined a panel ruling against a gay male nurse with HIV who claimed he was fired based on disability discrimination. In a 2012 case involving a member of the Westboro Baptist Church, Gruender joined the full circuit court in upholding a city ordinance restricting protests near funerals. In a 2016 panel decision, Gruender joined a procedural ruling in favor of a member of the Westboro Baptist Church who said the state of Missouri’s restrictions on protests near funerals violated her rights to free exercise of religion and speech.
William Pryor of Alabama, 54, 11th Circuit U.S. Court of Appeals: Pryor joined a three-judge panel decision this year that said the court had no authority to review a Haitian transgender man’s petition to stay in this country because he had been convicted of crimes and had failed to establish a likelihood of future persecution. In 2011, Pryor joined two other judges to affirm a district court ruling in favor of a transgender employee. The employee claimed her employer fired her based on sex and because of her gender identity disorder. The district court ruled for her on the basis of sex discrimination. Citing the U.S. Supreme Court’s landmark decision in Price Waterhouse v. Hopkins, the panel agreed that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the equal protection clause.” That same year, Pryor also concurred in a decision that upheld the right of a university to require a student seeking a masters in student counseling to follow a “remediation plan” to improve her ability to counsel LGBT students. The student sued, saying being gay is wrong and is a “lifestyle” and that the remediation plan violated her First Amendment right of speech and religion. The district court denied her request for a preliminary injunction, and the panel including Pryor upheld that denial. But Pryor wrote a concurring opinion to make clear that a university should not be able to take adverse action against a student “based on the concern that the student might, in a variety of [non-university] circumstances express views at odds with the preferred viewpoints of the university.”
State Supreme Court judges: The remaining five judges on Trump’s potential U.S. Supreme Court nominee list are members of state supreme courts. While their records on LGBT issues are sparse, they are also less likely to be considered qualified and experienced enough on federal court issues to be nominated to the nation’s highest federal court. They include:
Don Willett of the Texas Supreme Court, 49, who worked in the administration of President George W. Bush as a policy adviser in the Office of Faith-Based and Community Initiatives. He also worked for a conservative think tank, the Texas Public Policy Foundation, and served as deputy attorney general under then Texas Attorney General (now governor) Greg Abbott. He was appointed to his current position by former Governor Rick Perry. He is best known for mocking the U.S. Supreme Court’s deliberation of marriage equality by posting a Twitter message, “I could support recognizing a constitutional right to marry bacon.”
Thomas Lee of the Utah Supreme Court, 51, who clerked for U.S. Supreme Court Justice Clarence Thomas and conservative 4th Circuit Judge J. Harvie Wilkinson III.
Allison Eid of the Colorado Supreme Court, 50, also clerked for Clarence Thomas.
David Stras of the Minnesota Supreme Court, 41, also clerked for Clarence Thomas.
Joan Larsen of the Michigan Supreme Court, 47, clerked for Justice Antonin Scalia and for conservative federal appeals court Judge David Sentelle of the D.C. Circuit.