I resist the proclamation’s talk of “glass ceilings,” pay equity (an allegation that some studies debunk), the need to place kids in the care of rented strangers, sexual discrimination/harassment and the need generally for better “working conditions” for women (read: more government).
Don Willett, nominee to the Fifth Circuit Court of Appeals, objecting to draft proclamation of then-Governor George W. Bush honoring the Texas Federation of Business and Professional Women
Despite repeated attempts to meld the two into one “right side of history” campaign, the Sexual Revolution is not the Civil Rights Movement….The “Sexual Revolution,” “was rooted in the soil of elitist postmodern philosophy, spearheaded by secular libertines, and was essentially ‘radical’ in its demands.” “It sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults. In this way, the Sexual Revolution was more like the French Revolution, seeking to destroy rather than restore.
Matthew Kacsmaryk, nominee to the Northern District of Texas
During the presidential race, Donald Trump’s campaign was littered with sexist comments and misogynistic behavior. He bragged about getting away with sexual assault in his Access Hollywood tape, talked about “blood coming out of [Megan Kelly’s] wherever,” and insulted fellow candidate Carly Fiorina’s appearance.
As president, Trump has turned his backwards views of women into harmful policy decisions. He announced a new rule that eliminates the requirement that all health insurance plans cover birth control; halted EEOC rules designed to give women the tools they need to combat unequal pay; revoked President Obama’s Fair Pay and Safe Workplaces Executive Order that required companies with federal contracts to increase salary transparency and stop forcing victims of sexual harassment and assault into arbitration; and revoked Obama-era guidance designed to protect college students from sexual assault.
And he now supports a Senate candidate accused of molesting underage girls.
President Trump has also spread his attacks on women to our nation’s courts – where every person is supposed to have “Equal Justice Under Law.” Trump’s choices for lifetime appointments to the federal bench make it clear that he wants to enshrine backwards views of women’s rights into the judiciary for generations to come.
President Trump has nominated the fewest women to the federal bench in recent history. Only 19 percent of President Trump’s judicial nominees have been women, compared to 42 percent nominated by President Obama. In many cases, President Trump replaced an Obama-nominated woman who Senate Republicans did not confirm with a man. For example, Ralph Erickson replaced Jennifer Puhl as nominee for the Eighth Circuit from North Dakota; Amul Thapar replaced Lisabeth Tabor Hughes as nominee for the Sixth Circuit from Kentucky; Stephanos Bibas replaced Rebecca Ross Haywood as nominee for the Third Circuit from Pennsylvania; Thomas Farr replaced Patricia Timmons-Goodson as nominee for the Eastern District of North Carolina; Damien Schiff replaced Jeri Kaylene Somers as nominee for the Federal Court of Claims.
To defend nominating so few women, the Chicago Tribune reports, “White House spokesman Hogan Gidley says Trump is focused on qualifications and suggests that prioritizing diversity would bring politics to the bench.” In reality, however, the American Bar Association has rated four Trump nominees “unqualified,” including Brett Talley, who has never tried a case and has practiced law for just three years.
Moreover, comparing the qualifications of nominee Damien Schiff to those of Jeri Kaylene Somers is telling. Before being nominated, Ms. Somers served in the Air Force, retiring with the rank of lieutenant colonel; spent two decades as a judge advocate general and then as a military judge in the Air Force and District of Columbia’s Air National Guard; and served as a judge with the U.S. Civilian Board of Contract Appeals. Meanwhile, Schiff—only 38 years old—has just one year of government experience (as a law clerk), no experience trying cases, and no judicial experience.
Along with those lacking experience, President Trump has nominated men who have spent their careers trying to erode critical rights and legal protections for women. His nominees have opposed laws designed to protect women from sexual assault and worked to limit a woman’s right to make decisions about her body, among other affronts to women’s rights. On occasion they have had to be checked by the Supreme Court.
Here are just some illustrations of President Trump’s nominees for the judiciary, people who could have a devastating impact on the lives of women long after Trump himself is out of office.
Nominees Have Fought to Weaken Protections Against Sexual Harassment and Sexual Assault
- Don Willett, while on the Texas Supreme Court, chose to limit the amount of compensation that a victim of workplace sexual harassment and assault can collect from her employer. In Waffle House, Inc. v. Williams, Cathie Williams, a Waffle House employee, was repeatedly sexually harassed and assaulted by a co-worker, Eddie Davis. Davis made sexual comments to Williams, occasionally with his hands in his pants. He pushed Williams several times into counters and into a grill, rubbed against her breasts with his arm while she was putting plates away, and once cornered her in the supply room. Waffle House management failed to intervene despite Williams reporting her co-worker’s conduct. In his decision, Willett substantially decreased the award that the jury granted Williams, and permanently limited the ability of women to bring suit in sexual assault cases in the future. In fact, as the dissent pointed out, Willett’s decision means that victims of sexual harassment in Texas are entitled to less compensation from their employer than a person who experienced employer negligence alone, without a sexual harassment component.
- Thomas Farr supported a North Carolina bill that prevented women who were discriminated against or who were victims of sexual harassment in the workplace from filing a lawsuit in state court, calling it a “better policy for the state.” Farr’s position was so extreme that the Republican legislature quickly repealed the law after its enactment.As an attorney, Farr defended a company when a supervisor said that female employees were “stupid, retarded, and awful,” that “women with children should be at home and not employed in the workplace,” and that he would go to an employee’s hotel room to “help [her] pick [her] panties off the floor.” Farr defended another company where a woman was denied a position because the job “was too hard and too rough for a woman.”
- David Stras dissented from a Minnesota Supreme Court decision that made it easier to hold rapists accountable. In State v. Obeta, a woman accused Nathan Obeta of raping her in a car. She waited about three hours to report the allegation, and a sexual assault exam did not find that she had any serious injuries. Expert witnesses testified that lack of detectable injuries and a delay in reporting are common in rape cases, and a jury convicted Obeta. The Minnesota Court of Appeals then awarded Obeta a new trial on the grounds that such expert testimony should not be allowed. When appealed, the state Supreme Court ruled in favor of allowing the expert testimony, explaining that “many jurors may wrongly believe that most sexual-assault victims will forcefully resist their assailant, suffer severe physical injuries—including vaginal injuries—and immediately report the attack.” Stras dissented from the ruling.
- Michael Brennan applauded the Supreme Court’s decision in United States v. Morrison, which struck down key parts of the Violence Against Women Act.
Nominees Have Fought to Weaken Equal Educational Opportunities
- Damien Schiff sued to prevent Title IX from being applied to high school students. If he had been successful, millions of girls across the country would have had far fewer educational opportunities. His lawsuit was dismissed.
- Kevin Newsom argued that a high school girls’ basketball coach, who was fired for complaining that the school treated the girls’ team worse than the boys’ team, could not bring a lawsuit for retaliation under Title IX. The Supreme Court disagreed and ruled in favor of the basketball coach.
- John Bush opposed women being admitted into the Virginia Military Academy (VMI). He wrote that the military-style education of VMI “does not appear to be compatible with the somewhat different developmental needs of most young women.” The Supreme Court disagreed.
Nominees Have Fought Women’s Access to Contraception
- Kyle Duncan represented Hobby Lobby in its efforts not to provide contraceptive coverage to over 13,000 employees as required by the Affordable Care Act. Duncan also accused the government of treating “contraceptives as ‘the sacrament of our modern life,’” and criticized what he considers the idea that contraceptives are “necessary for ‘the good life,’ health and economic success of society, particularly women.”
- Jeff Mateer compared the contraceptive mandate under the Affordable Care Act to oppression in Nazi Germany. He said, “we’ve seen this in history before, when totalitarian governments want to suppress, they go after people of faith…there’s that great quote that comes out of the Nazi Germany, ‘First they came for what, the communist, and then they came for the Jews, and then eventually they came for me,’ the Neimöller quote. I think when people start realizing, ‘Oh, they are coming after me,’ they wake up.” He continued, “It’s time for people of faith to realize, yes, this administration, this government is coming after you[.]”
- Stephen Schwartz filed a brief in Hobby Lobby opposing the contraceptive mandate, which was also strongly opposed by both Matthew Kacsmaryk and Jeff Mateer.
Nominees Have Fought Women’s Right to Decide Whether to Have An Abortion
- John Bush likened abortion to slavery: “[t]he two greatest tragedies in our country—slavery and abortion—relied on similar reasoning and activist justices at the U.S. Supreme Court, first in the Dred Scott decision, and later in Roe.”
- Jeff Mateer also criticized Roe v. Wade. In a blog post he wrote, “In 1973, seven unelected judges determined that, despite hundreds of years of contrary precedent, the unborn had no right to life. Since that time, 52 million innocent lives have been taken. This past year over 1 million lives were terminated. Today alone, in abortion mills throughout the country, 2,739 babies will be killed. For over the past 30 years, we seem to be living in a society that does not honor life, but instead promotes a culture of death.”Mateer also represented four “crisis pregnancy centers” which claimed that their rights were violated when an Austin, Texas ordinance required them to post signage stating that they do not provide medical services.
- Steven Grasz wrote an article for Creighton Law Review, “If Standing Bear Could Talk…Why There is No Constitutional Right to Kill a Partially-Born Human Being.” In the article, he compared the “personhood” of fetuses to the civil rights of Native and African Americans: “It was not until 1879 that a federal court held, in the historic case of United States ex rel. Standing Bear v. Crook, that Native Americans were “persons” for purposes of federal law. Now, 120 years later, some of the same legal arguments that were made in an attempt to deny civil rights protections to Standing Bear and other Native Americans are once again being made to deny legal protection to other vulnerable human beings. This time the victims are partially-born children, delivered up to their head and dangling just inches from complete independence.”
Grasz also fought to deny Medicaid coverage, required by federal law, to women who sought abortions because they had been raped.
- Brett Talley called Roe v. Wade “indefensible.”
- Matthew Kacsmaryk described Roe v. Wade: “seven justices of the Supreme Court found an unwritten ‘fundamental right’ to abortion hiding in the due process clause of the Fourteenth Amendment and the shadowy ‘penumbras’ of the Bill of Rights, a celestial phenomenon invisible to the non-lawyer eye.”
- Mark Norris co-sponsored a resolution in Tennessee that would ban abortion even if necessary to protect the mother’s life or in cases of rape or incest. He opposed an amendment during the debate on the resolution which would have protected abortion rights “to protect her life or when she is the victim of rape or incest.” Norris was “uncomfortable” with the amendment because it would leave a “vital concern about women’s health” with the courts.
- Kyle Duncan supported Texas laws that required abortion facilities to meet “minimum standards…for ambulatory surgical centers” and physicians performing abortions to have admitting privileges at a hospital 30 miles or less from the abortion facility. After the admitting-privileges requirement went into effect, “the number of facilities providing abortions dropped in half, from about 40 to about 20,” and the enforcement of the surgical-center requirement would have caused more abortion facilities to close. The Supreme Court deemed the laws an “impermissible obstacle as applied to all women seeking a previability abortion.”
Nominees Have Made Concerning Statements About Women
- Michael Brennan minimized the challenges women face in the workplace. In an article on “Personal Responsibility,” he regrets that “[m]any of the words and phrases used in the media and in the academy suggest that things simply happen to people, rather than being caused by their own choices or behavior. One example is an ‘epidemic’ of teen pregnancy or of drug use.” Brennan writes that another example of such “verbal sleight-of-hand” is “that a certain group was denied an opportunity to advance by a ‘glass ceiling.’ Implicit in that phrase is the notion that rules were rigged against some individual or group.”Brennan, while serving as chairman of an advisory committee that helped Governor Scott Walker choose state-level judicial nominees, also approved of Rebecca Bradley as a nominee to the Wisconsin Supreme Court. Bradley had described the “feminist movement as largely composed of angry, militant, man-hating lesbians who abhor the traditional family.”
- John Bush referred to Speaker Pelosi as “Mama Pelosi” in a blog post and wrote that someone should “gag the House Speaker.” Three years later, he referred to Hillary Clinton as “a nanny Secretary of State.”
- Kevin Newsom and John Bush have already been confirmed to lifetime seats on federal courts. But the other nominees are still awaiting their Senate votes. At this time when women and men are coming forward and saying #metoo, and men in power are being held accountable for harassment and assault, Trump’s judicial nominees cannot be permitted to return the country to a less-just past.
It is not too late to speak out against these nominations and demand that President Trump stop packing the courts with men who fail to respect women’s rights. America deserves judges who are truly committed to equal justice for all.