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Judicial Vacancies Must Be Filled By Pro-Equality Judges

Judicial Vacancies Must Be Filled By Pro-Equality Judges

We must apply pressure to stop a new generation of Scalias from assuming power.

When Donald Trump takes the oath of office as president January 20, he will inherit at least 114 federal judicial vacancies -- including one on the Supreme Court of the United States -- more than double the number passed on to President Obama from his predecessor. The Senate's obstruction of Obama's nominees for these critical positions now hands Trump an unprecedented opportunity to shape the judiciary in a way that will reverberate through our lifetimes, from antidiscrimination measures to gun control and voting rights.

We already know that Trump has pledged to construct a more conservative Supreme Court, including appointing justices in the model of Antonin Scalia -- a man who spent his judicial career disparaging LGBTQ Americans. So it should come as no surprise that how Trump chooses to shape his broader judicial legacy is of extreme concern to Americans like those of us in the LGBTQ community who face discrimination and have frequently relied on the judiciary to protect our basic rights from a barrage of legislative and legal attacks.

We are among those who could feel the effects of Donald Trump's judicial appointments most intensely.

Over the past few decades, the LGBTQ community has won important, meaningful victories in our courts. The U.S. Supreme Court struck down unconstitutional restrictions on nondiscrimination protections in Romer v. Evans in 1996 and unconstitutional sodomy laws in Lawrence v. Texas in 2003. A decade later, the court ruled in favor of the right to marry for same-sex couples, first by striking down the Defense of Marriage Act with United States v. Windsor in 2013, and then, two years later, by bringing marriage equality to all 50 states with Obergefell v. Hodges.

But it's not just the Supreme Court that has been crucial to LGBTQ progress toward full equality. In 2016, U.S. District Judge Carlton Reeves halted Mississippi's discriminatory House Bill 1523 just hours before it was to go into effect. In 2015, U.S. District Judge Callie Granade issued a series of orders that told Alabama probate judges that they must issue marriage licenses to same-sex couples, despite the obstructionist tactics of other elected officials in the state. And since 2000, five U.S. courts of appeal and more than a dozen U.S. district courts have ruled that discrimination against transgender people is a form of sex discrimination prohibited by federal law.

We have also seen what can happen when appointed federal judges do not respect the dignity and civil rights of LGBTQ people. In the fall of 2016, a federal judge in Texas ruled against the Departments of Education and Justice's guidance for public and federally funded schools informing them that transgender students must be treated with dignity, including having equal access to sex-segregated facilities, such as restrooms, that are consistent with their gender identity. That means that transgender students -- already disproportionately targeted for bullying and violence -- must now wait for an appeal of that ruling while attending schools that may or may not ensure that they are able to learn in a safe and inclusive environment.

As state legislatures across the country begin their 2017 sessions, we are expecting another onslaught of terrible anti-LGBTQ bills (it's already begun). While the Human Rights Campaign and our partners will continue to fight on the ground to stop these measures, the federal judicial branch remains a vitally important check on discriminatory actions of state legislatures.

Judge Reeves's action halting Mississippi's discriminatory HB 1523 is a fitting example of how courts are stepping in to guard against an unconstitutional attacks on LGBTQ people. When legislators in the state passed a bill that enables almost any individual or organization to discriminate against LGBTQ Mississippians at work, at school, and in their communities, a legal team led by Roberta Kaplan made the case that this bill was patently unconstitutional and overtly discriminatory. Judge Reeves agreed, stopping the bill in its tracks. Without a strong, fair-minded judiciary, this law could easily be in effect today, harming thousands of LGBTQ Mississippians.

It should be noted that our concern is not just about cases directly focused on the immediate rights of LGBTQ people. Federal judges will be deciding the constitutionality of laws related to gun control, immigration, reproductive rights, voting rights, and more -- all of which affect LGBTQ people too. The LGBTQ community is made up of immigrants, of women, of disenfranchised voters, of victims of violence, and for these reasons, HRC is deeply concerned about these issues as well.

As our president, Chad Griffin, said in a speech last year, "I want to remind Donald Trump of one more thing. The LGBTQ community is as diverse as the fabric of our nation. We are Muslim. We are Jewish. We are women. We are black, white and Latino. We are immigrants and we are people with disabilities. And when you attack one of us, you are attacking all of us."

The judicial branch is tasked with upholding the Constitution and protecting the rights and liberties of all Americans. Trump must fill these vacancies with judges who are focused on standing up for all, not just some, of us. Anything else is unacceptable. Stand with us in fighting for a federal judiciary that respects and protects us all from those who seek to deny us our equal rights.

SARAH WARBELOW is the legal director for the Human Rights Campaign, the nation's largest LGBTQ civil rights organization.

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