The Appalling Judges Who Could Replace Anthony Kennedy

Supreme Court justices

The impending retirement of Supreme Court Justice Anthony Kennedy, the court’s swing vote and author of several pro-LGBT rights rulings, gives Donald Trump the opportunity to nominate a second justice to the high court – something many of us had feared.

Trump had promised during the presidential campaign to appoint justices in the mold of the late Antonin Scalia, whose views were staunchly conservative and especially hostile to LGBT equality and reproductive freedom. The people on Trump’s list of potential nominees tend to be in that mold; although there are some surprises, several of them have records that raise concerns for LGBT people, women, racial minorities, workers, and criminal defendants. Here’s a look at 10 of the possibilities – seven who’ve been identified as front-runners, and a few others included because they are simply appalling. By the way, a president’s Supreme Court nominees, like nominees to other federal courts, are subject to Senate confirmation.

William H. Pryor Jr., a judge on the U.S. Court of Appeals for the Eleventh Circuit, filed a friend of the court brief supporting sodomy laws in Lawrence v. Texas, and he cast the deciding vote against hearing a challenge to a now-defunct Florida law that barred gay people from adopting. He has also derided LGBT rights as “political correctness” and called Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. “the worst abomination of constitutional law in our history.” An Alabamian, he’s a protégé of Attorney General Jeff Sessions.

But Pryor made a surprisingly inclusive decision in Georgia state employee Vandy Beth Glenn’s discrimination suit in which she claimed she was fired because of her gender transition. He was on a three-judge panel of the Eleventh Circuit that unanimously ruled in 2011, “We conclude that a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.”

Amy Coney Barrett was confirmed to the U.S. Court of Appeals for the Seventh Circuit last year after contentious hearings in which some Democrats questioned if her could subordinate her Catholic faith to the law. As a law student in 1998, she had coauthored a paper that noted judges’ beliefs sometimes conflict with the law, and said Catholic judges might want to recuse themselves from, for instance, cases involving the death penalty, which the church opposes. But some interpreted the paper as calling for religious beliefs to override the law. Democratic Sen. Dianne Feinstein, for instance, wondered about Barrett’s opinion on Roe v. Wade. Barrett declined to speak specifically to that.

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Barrett, a former law professor at Notre Dame University, doesn’t have much of a paper trail on LGBT rights, but she has said, “The Constitution does not expressly protect a right to privacy,” a statement that has implications for both abortion rights and LGBT rights. Her views are cause for concern, according to the Alliance for Justice, a progressive group that monitors judicial nominees. “It would be hard to overstate the degree to which Barrett’s academic work has been tailored to dismantle Roe v. Wade,” the group noted on its website when her nomination to the Seventh Circuit was pending.

U.S. Sen. Mike Lee of Utah has been mentioned as a potential Supreme Court pick before, and he was mentioned again when Kennedy announced his retirement. He said he “would not say no” to being on the court. The Republican senator has received low scores on the Human Rights Campaign’s Congressional Scorecard, and he is the lead sponsor of the latest version of the First Amendment Defense Act, which would give legal protection to individuals and certain businesses that discriminate out of a “sincerely held religious belief or moral conviction” about the nature of marriage – in other words, a license to discriminate against same-sex couples, single parents, and more.

Charles Canady, a Florida Supreme Court justice and former congressman, has a history of opposing marriage equality. In 1996, as the Hawaii courts considered a marriage equality case and Congress considered the Defense of Marriage Act, which would eventually become law, Canady said, "Should we let three judges in Hawaii decide to redefine marriage, not only for the people of Hawaii, but for the rest of the country as well? I really can't imagine how anyone could, in good conscience, oppose the proposition that the states should be able to deny the status of marriage to same-sex unions." Also while in Congress, Canady was the first member to introduce a  proposal to ban certain types of late-term abortions.

Timothy Tymkovich, chief judge of the U.S. Court of Appeals for the Tenth Circuit, is a former solicitor general of Colorado, and in that position, he defended the state's antigay Amendment 2 before the U.S. Supreme Court. The high court, with Kennedy writing for the majority, ended up striking down the voter-approved measure, which prohibited any cities or counties within the state from banning antigay discrimination.  As the Senate considered Tymkovich's nomination to the appeals court in 2003, some brought up his antigay history. Democratic Sen. Patrick Leahy of Vermont mentioned a law journal article Tymkovich wrote that seemed "replete with heavy antihomosexual rhetoric." The Senate confirmed him anyway. And on the appeals court, Tymkovich wrote the majority opinion in the Hobby Lobby case, saying employers with objections to certain types of contraception had the right to deny workers insurance coverage for them.

Raymond Gruender, a judge on the U.S. Court of Appeals for the Eighth Circuit, once wrote an opinion “that a 1978 pregnancy law does not give female employees the right to contraceptive coverage, a ruling to which opponents of the Affordable Care Act have pointed,” The Washington Post reports. And overall, according to SCOTUSBlog, “his decisions suggest that he is receptive to chipping away at abortion rights under the Supreme Court’s post-Roe jurisprudence.” He also wrote an Eighth Circuit opinion upholding a South Dakota law requiring doctors to tell patients seeking abortions that the procedure ends “an existing relationship” with an “unborn human being” and increases the risk of suicide – which is not true. On LGBT rights, he’s joined in at least one positive ruling, in favor of a student gay-straight alliance that sued for equal access to meeting facilities at its high school. He also joined in a ruling upholding a Missouri city’s law against protests at funerals. The law was aimed particularly at stopping protests by the deeply antigay Westboro Baptist Church, but it banned all protests, regardless of content, so the court found it met constitutional requirements. An alarming move came back in 2000, when, as a U.S. attorney, he decided not to bring federal charges for civil rights violations against two law enforcement officers (one a local policeman, the other a federal agent) who had shot two unarmed black men 21 times; both of the black men died.

Brett Kavanaugh, a judge on the U.S. Court of Appeals for the D.C. Circuit, doesn’t appear to have much of a record on LGBT rights. But “he has written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases,” reports a blog called Empirical SCOTUS. He recently dissented from a decision that allowed a minor who is an undocumented immigrant to obtain an abortion. He also supported exemptions from the Affordable Care Act for a religious group, “albeit not to the full extent possible,” notes Empirical SCOTUS. He has ruled in favor of gun rights, and as a White House aide in the George W. Bush administration, he supported the expansion of presidential power. He’s a former law clerk for Justice Kennedy.

Thomas Hardiman, a member of the U.S. Court of Appeals for the Third Circuit, has a largely conservative record, including in two majority opinions for the court --  “one backing the strengthening of mandatory minimum sentences for criminals, and the other supporting strip-searches,” the Post reports. But in some cases he’s proved “harder to pigeonhole,” according to SCOTUSBlog. In one of those, “he wrote for the court in allowing a gender-stereotyping claim by a gay man who described himself as ‘effeminate’ to go forward”; the man claimed he was fired from his job because he did not conform to gender stereotypes. Not every claim of antigay discrimination can “translate into a triable case of gender stereotyping discrimination,” he wrote, but he also said the employer “cannot persuasively argue that because [the plaintiff] is homosexual, he is precluded from bringing a gender stereotyping claim.” Hardiman serves on the court with Trump’s sister, Judge Maryanne Trump Barry, and he’s reportedly her favorite for the Supreme Court post.

Raymond Kethledge, who sits on the U.S. Court of Appeals for the Sixth Circuit, hasn’t ruled in many controversial cases, reports ThinkProgress. “He did, however, side with the Ohio Republican Party in a 2008 case that could have potentially prevented as many as 200,000 registered voters from casting a ballot,” the site notes. “A unanimous Supreme Court reversed the decision Kethledge joined just three days after it was handed down.” According to Bloomberg BNA, he also found in favor of a Tea Party group that claimed it received unfair treatment from the Internal Revenue Service; ruled that “a Wisconsin law requiring employers to extend paid disability leave benefits to new mothers was preempted by federal law”; and rejected the Equal Employment Opportunity Commission’s “claims that a company violated the 1964 Civil Rights Act by considering the credit histories of job applicants in its hiring process.”

Amul Thapar, another Sixth Circuit judge, “is most famous for sentencing three anti-nuclear activists, including an 84-year-old nun, to three years in prison for breaking into a Tennessee nuclear facility,” The Guardian reports. Their convictions were eventually overturned. That ruling came when he was a federal district judge in Kentucky, along with other questionable decisions. He tried to deny reimbursement of legal fees to a person who had successfully sued for disability benefits; that was overturned too. And he claimed that an employee cannot sue over same-sex sexual harassment unless there was “credible evidence that the harasser was homosexual.” Other courts have rejected this reasoning, notes the Alliance for Justice, which raised “serious concerns” about his elevation to the appeals court when Trump nominated him last year. The first South Asian to serve as a federal appeals or district court judge, he’s a favorite of a powerful fellow Kentuckian, Senate Majority Leader Mitch McConnell.

Pryor, Barrett, Thapur, Gruender, Kavanaugh, Kethledge, and Hardiman are the front-runners for the nomination, according to the Post. They’re drawn from a list of more than 20 names Trump compiled with input from a couple of conservative groups, the Heritage Foundation and the Federalist Society. Find more names from the list here.

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