March 6, 2018 at 4:52 pm EST | by Chris Johnson
LGBT groups rally at Supreme Court against Trump nominees

Rep. Joseph P. Kennedy III (D-Mass.) speaks at a rally in front of the United States Supreme Court against Trump nominees. (Washington Blade photo by Michael Key)

Civil rights leaders, transgender parents and LGBT advocates — joined by Reps. Joseph Kennedy III (D-Mass.) and Donald McEachin (D-Va.) — rallied before the U.S. Supreme Court on Tuesday in opposition to two Trump nominees, one with a history of anti-LGBT legal work, the other with a history of supporting black voter suppression.

At times, participants at the rally cited the motto inscribed on the Supreme Court building, “Equal Justice Under the Law,” as a moral foundation for America contrary to the views of the nominees.

The targets of the ire of those in attendance at the rally were Kyle Duncan, whom President Trump nominated in October for a seat on the U.S. Fifth Circuit Court of Appeals, and Thomas Farr, whom Trump nominated in July for a federal judgeship in the Eastern District of North Carolina.

Nan Aron, president of the Alliance for Justice, said Duncan and Farr are part and parcel of the quality of nominations submitted by Trump, who have been hostile to civil rights and, in one case, unable to answer basic questions about legal doctrine before the Senate.

“When it comes to judicial nominations, nothing could have prepared us for the Trump administration,” Aron said. “Hostile and offensive statements and behavior that would have gotten in the old days a nominee instantly disqualified — they’re now par for the course.”

Duncan, currently a partner at Schaerr Duncan LLP, has a record of opposing LGBT rights in litigation before the U.S. Supreme Court and federal appeals courts.

When same-sex marriage came before the Supreme Court, Duncan filed a brief on behalf of 15 states in opposition to nationwide marriage equality. Additionally, he led efforts to keep in place marriage bans in Louisiana and Virginia.

After the nationwide ruling for same-sex marriage was handed down, Duncan wasn’t done. In Alabama, he represented the birth mother of three children who refused visitation rights to her former same-sex spouse. Although the Alabama Supreme Court ruled in the birth mother’s favor, the U.S. Supreme Court reversed that decision in accordance with Obergefell.

On transgender rights, Duncan represented in litigation the Virginia school that sought to bar transgender student Gavin Grimm from using the restroom consistent with his gender identity. Duncan also represented North Carolina Republican lawmakers in their attempt to defend in court House Bill 2, which sought to bar transgender people from using public restrooms of their choice.

Harper Jean Tobin, director of policy at the National Center for Transgender Equality, said at every turn when transgender rights are challenged Duncan “has been there defending discrimination.”

“It’s not just about who his clients were, it’s not even just again and again he sought out the opportunities, the cases and the clients where he could make the arguments and advance the positions that would be most harmful to LGBT Americans and our families,” Tobin said. “He hasn’t just represented and defended those who discriminated against people like us, he has demeaned our families and our children.”

Farr, currently a shareholder in the Raleigh office of Ogletree, Deakins, Nash, Smoak & Stewart PC, defended in court a voter ID law in North Carolina widely seen as an attempt to prevent minorities from voting.

A legal counsel for the 1990 campaign to re-elect the late Sen. Jesse Helms, Farr has denied being part of the campaign’s efforts falsely telling black people they could be prosecuted for voting, although a Justice Department attorney familiar with the effort has insisted Farr was involved.

The seat to which Farr was nominated has been open since 2005 and is 30 percent African American. Former President Obama nominated for the seat former North Carolina Supreme Court Justice Patricia Timmons-Goodson, who’s black, but U.S. Sen. Richard Burr (R-N.C.) blocked the nomination. Farr, who’s white, was initially nominated by former President George W. Bush and Trump renominated him.

Todd Cox, director of policy at the NAACP Legal Defense & Educational Fund, said at the rally the nominations “reveal the disturbing truth that this administration does not just tolerate radical anti-equality views among its judicial nominees, but requires them.”

“Overall, Farr’s record is not simply one of a lawyer representing clients,” Farr said. “Rather, he has demonstrated a longstanding dedication to undermining civil rights protections, particularly when it comes to the voting rights of African Americans and people of color.”

Sharon McGowan, director of strategy for Lambda Legal, said of two nominees Duncan is “even more dangerous” based on his anti-LGBT record because he’s up for a seat on a federal appeals court.

“We know that this is a matter of life or death for our community,” McGowan said. “Kyle Duncan has spent his career denigrating LGBT people — whether it’s denying the legitimacy of our families, accusing gay people of being unfit parents or trying to block our access to the protections of marriage.”

Also present at the rally were the parents of transgender children who said the confirmation of Duncan would undermine the safety of their families.

Nicola van Kuilenburg, mother of a transgender boy in Frederick, Md., said Duncan is “a serious threat” to the U.S. Constitution, which she swore to defend upon taking an oath as a naturalized citizen earlier this year.

“The Fifth and Fourteenth Amendments guarantee equal protection of all citizens under the law, including transgender people,” Van Kuilenburg said. “Unfortunately, Kyle Duncan has shown time and again that he is willing to trample on those rights, and as a mother of transgender child, I am deeply concerned.”

The rally was held on the same day the nation’s largest LGBT group, the Human Rights Campaign, sent a letter to members of the U.S. Senate in opposition to Farr.

Sarah Warbelow, legal director of the Human Rights Campaign, was at the rally and said her organization would “completely concur” with the opposition to Farr, but had special words on the Duncan nomination.

“Kyle Duncan is a gun for hire who has made his career about targeting LGBTQ people in every aspect of our lives,” Warbelow said.

Lawmakers joining civil rights groups in opposition to Duncan and Farr said the nominees are part of a broader effort from the Trump administration to undermine civil rights.

Kennedy, chair of the Congressional Transgender Task Force, said the nominees were contrary of the spirit of efforts in America to move toward greater equality.

“We will not allow the bigoted beliefs of two men to unwind the progress that has been demanded by millions who came before them, and the millions that will come after,” Kennedy said. “We will not stand silent as Kyle Duncan derides our transgender neighbors, our friends and loved ones as delusional and questions the constitutionality of their guarantee. We will not ignore Thomas Farr’s surgically precise attacks on the right to vote.”

McEachin said the nominees are evidence the Trump administration is seeking to “tilt the scales” of Lady Justice against LGBT and minority groups.

“The Trump administration wants to take us back to the days of ‘Leave It to Beaver,’ where African-Americans didn’t exist and people of different sexual orientations just simply didn’t exist,” McEachin said. “And we cannot allow that. We cannot allow that in our public fabric, and we cannot allow that to take place in our judiciary as well.”

Although Trump has enjoyed record success in confirmations to the federal judiciary, LGBT rights groups have had some success in thwarting the confirmation of anti-LGBT nominees.

After Jeff Mateer, whom Trump nominated for a federal judgeship in Texas, was revealed to have called transgender kids “Satan’s plan,” transgender rights groups voiced their opposition. The nomination stalled out in the Senate and Trump declined to renominate him at the start of the year.

The White House didn’t respond to the Washington Blade’s request for comment on whether Trump continues to support his nominees in the face of opposition from civil rights groups.

Duncan and Farr were already both reported favorably out of committee. A spokesperson for Senate Majority Leader Mitch McConnell (R-Ky.) said “there are no scheduling announcements” when asked if he intended to move forward with the nominations.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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