As Donald Trump's presidency winds down, the U.S. Senate Tuesday confirmed a judicial nominee who had argued in favor of North Carolina's anti-LGBTQ+ House Bill 2 and defended a school district denying a transgender student access to the appropriate restroom.
The Senate confirmed Stephen Schwartz to a 15-year term on the U.S. Court of Federal Claims, the Washington Blade reports. The vote came along party lines, with 49 Republicans voting for him and 47 Democrats against him.
Schwartz had defended the North Carolina law, passed in 2016, that barred cities and counties in the state from enacting or enforcing nondiscrimination laws covering LGBTQ+ people or any group not covered by the state's law. It also prohibited trans people from using the restrooms and other facilities matching their gender identity when in government buildings, including public schools and state colleges and universities. Roy Cooper, who was then North Carolina's attorney general, had refused to defend the law in court, and after he became governor, most of its provisions were repealed.
Additionally, Schwartz served as counsel for the Gloucester County School Board in Virginia in its legal fight over trans student Gavin Grimm's right to use the boys' restroom. The case went on for several years, and Grimm has now graduated from high school, but the U.S. Court of Appeals for the Fourth Circuit ruled in August that the school district's restrictive policy was unconstitutional.
In other controversial actions, Schwartz has defended a North Carolina law that was aimed at interfering with voting rights, particularly suppressing the Black vote, and as a student at Yale University, he wrote an article calling for the dismantling of social safety net programs run by the federal government, such as Medicare, Medicaid, and Social Security.
"While saving the elderly [from starvation] may be a worthwhile goal for the government to take, the modern aim of guaranteeing them a comfortable, modern standard of living and full medical coverage is not," he wrote in the 2005 article.
Schwartz has said his political opinions will not affect his work as a judge. "Like many judicial nominees, I have represented a wide variety of clients in cases involving a wide variety of issues," he wrote to the Senate Judiciary Committee, according to the Blade. "While some of them have been associated with political controversy, I have also been involved in a large amount of general commercial litigation with little, if any, political salience. I have represented farmers, small-boat cod fishermen, family business owners, and an inmate of the New York State prison system. I have been both aligned with and adverse to the federal government's positions at various times."
He declined to go into detail about the Gavin Grimm case, saying it was still pending. The Fourth Circuit denied the school district's request for a rehearing in September, but the district could still appeal to the Supreme Court.
The Court of Federal Claims hears cases involving claims against the federal government, mostly monetary claims. Schwartz was initially nominated to the court in 2017, but that nomination never came to a final vote. In 2019, Trump nominated him to fill a different vacancy on the court, and that was the one the Senate voted on Tuesday.
Several LGBTQ+ and other progressive groups had called on the Senate to reject Schwartz; they included Lambda Legal, the Human Rights Campaign, and People for the American Way.
Sasha Buchert, senior attorney at Lambda Legal, issued this post-confirmation statement: "This confirmation of Stephen Schwartz to the U.S. Court of Federal Claims is another dark day for the U.S. judiciary and the latest attack on LGBTQ people from the Trump-Pence Administration. It's extremely shameful that in the middle of a pandemic and a lame-duck session, a vote would be held to confirm Mr. Schwartz, a far-right extremist who has repeatedly undermined the civil rights of LGBTQ people and other marginalized communities.
"Stephen Schwartz has a deeply troubling record and a horrific portfolio of anti-transgender advocacy, including supporting the segregation of transgender youth, religious exemptions for corporations to deny reproductive care coverage, Black voter disenfranchisement, privatizing Social Security and eliminating health care and social programs. Among the terrible catalogue of Trump's nominees, Schwartz ranks at the top because of the extreme damage we know he would inflict upon our communities and institutions. Now, he will serve for 15 years on a consequential court that oversees LGBT issues in the military, and the balance between government actions and the people."