Experts Warn of Chilling Effects as GOP Targets LGBTQ Rights in Biden’s Judicial Nominations

More than a month has passed since the Senate Judiciary Committee faced an unexpected challenge, as it failed to advance the nomination of Sarah Netburn, a judicial nominee for the Southern District of New York.

This event marked a rare win for Republicans, as Georgia Senator Jon Ossoff became the first Democrat to oppose one of President Joe Biden’s federal court selections, casting the decisive vote against Netburn.

The controversy stems from Netburn’s recommendation in 2022 regarding an incarcerated transgender woman, which drew ire from Republican committee members. Netburn argued that transferring the prisoner from a men’s facility to a women’s prison was necessary to uphold her Eighth Amendment rights.

Ossoff, who has advocated for increased oversight in federal prisons, expressed serious reservations about the appropriateness of Netburn’s decision.

Netburn’s struggles are indicative of a broader trend, as several of Biden’s nominees have encountered significant scrutiny tied to LGBTQ issues. Experts warn this development may undermine efforts to diversify the federal judiciary and possibly deter future LGBTQ nominations.

Sasha Buchert, director of the Nonbinary and Trans Rights Project at Lambda Legal, noted that Republican lawmakers are strategically using LGBTQ issues to challenge Biden’s judicial agenda and garner political support, even pulling in some Democrats like Ossoff.

“The goal is to create a chilling effect on LGBTQ judicial nominees,” Buchert explained. “We’ve observed a significant decline in their numbers under the current administration.”

A report from Lambda Legal highlighted that since April 2023, there have been only a limited number of LGBTQ nominees, marking a drop compared to previous years. Notably, no openly transgender or nonbinary judges have been nominated.

While it’s unclear if partisan scrutiny affects the White House’s nomination choices, Buchert suggested that Republicans aim to label LGBTQ advocacy as a “toxic” issue, hindering the Biden administration’s efforts.

Susan Burgess, a political science professor at Ohio University, echoed this sentiment, arguing that the heightened scrutiny surrounding judicial nominees reflects a climate of extreme polarization that complicates the nomination process.

“Judicial nominees are always subject to rigorous vetting, but in today’s environment, even minor past actions or advocacy can become significant points of contention,” she said.

As a result, the decrease in LGBTQ representation within the federal judiciary raises concerns about equitable representation in American courts. “It’s vital for litigants to see themselves reflected in the judiciary,” Buchert emphasized.

Republican members of the Judiciary Committee are not solely targeting individual nominees; they’re also leveraging LGBTQ rights as a notable political issue to consolidate their base. This tactic is evident not only within Senate hearings but also on the campaign trail.

Buchert pointed out that recent questioning in the Judiciary Committee seems to merge a constitutional duty of oversight with a broader political agenda. “The lines between cross-examination and political messaging are blurring,” she remarked.

The focus on LGBTQ issues resonates with a strategic pivot among Republicans, who prefer discussing these topics over other pressing matters, according to Buchert. “This fixation feels bizarre; they avoid broader issues like living wages.”

Conversely, Republican senators portray their examination of judicial nominees as a necessary measure to exclude political advocates from the bench. During the hearing, Texas Senator Ted Cruz labeled Netburn a “political activist” for her earlier recommendation.

Netburn defended her stance by asserting that she had merely applied the law to the facts of the case, adhering to established legal precedents supporting the rights of transgender individuals.

Despite promises from Democratic committee aides that a vote on Netburn could be rescheduled, the Senate departed for its August recess without a plan. Meanwhile, Ossoff has not indicated any change in his opposition.

Another nominee, Noël Wise, faced similar scrutiny during her confirmation hearing, where her previous writings on gender identity were criticized by Republican lawmakers. Despite the controversy surrounding her article, Wise’s history on the California Superior Court demonstrated no judicial bias against any groups.

Although Wise’s nomination was reported favorably in a narrow party-line vote of 11-9, the ongoing scrutiny of judicial nominees based on their perceived affiliations with LGBTQ advocacy reflects a concerning trend in the current political landscape.