Lambda Legal: Trump’s Assault on LGBT Rights Continues with Latest Judicial Nominee

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LGBT Legal Advocacy Organization Brings Together 15 National, State and Local LGBT Rights Organizations in Letter Detailing Howard Nielson’s Homophobic Record including his “Trump-ian” Attack on Gay Federal Judge
January 10, 2018

(Washington, DC, January 10, 2018)Lambda Legal and 15 national, state, and local LGBT organizations sent a letter to the U.S. Senate Judiciary Committee ahead of today’s hearing urging them to oppose the nomination of Howard Nielson to the United States District Court for the District of Utah. The letter stressed Nielson’s long and active history opposing LGBT civil rights, and his unfounded and degrading attack on the impartiality of a gay judge. While Mr. Nielson’s attack on the integrity of a federal judge is shocking, this nomination fits the pattern identified by Lambda Legal of President Trump’s push to fill the courts with extremist anti-LGBT judges. 

“Howard Nielson has spent the better half of this decade actively working to discredit and undermine legal protections for LGBT people,” said Sharon McGowan, Director of Strategy at Lambda Legal. “When he couldn’t find a legal ground to stand on, he tried to win by degrading and insulting a federal judge, a strategy from the Trump playbook with which we are now so familiar. While President Trump may think it is perfectly fine to attack federal judges because of their ethnicity or other aspect of their identify, the American people know -- and expect the Senate to send a clear message -- that such behavior is disqualifying in a nominee for a lifetime appointment as a federal judge. 

“These kind of legal tactics move beyond zealous advocacy and call into question Mr. Nielson’s ability to administer impartial justice for the people of Utah. His underlying animosity towards the LGBT community must not be given the weight and authority of a lifetime appointment to the federal bench where he would surely continue find new ways to usurp protections and civil rights.”

The letter detailed Nielson’s long history of working to undermine LGBT protections, focusing specifically on his offensive attack on U.S. District Court Judge Vaughn Walker after Judge Walker struck down Proposition 8, a ballot measure passed in California in 2008 that denied same-sex couples in the state the right to marry. The letter cited Nielson’s failed effort to discredit Judge Walker by arguing “the public could not be confident that Judge Walker did not have a direct personal interest in the outcome unless he unequivocally disavowed any interest in marrying his partner,” who was a gay man.

The letter also cited an amicus brief authored by Mr. Nielson that laid out his discriminatory view of LGBT people and specifically, same-sex families. In his brief for Obergefell v. Hodges, the historic U.S. Supreme Court ruling that struck down state laws denying same-sex couples the freedom to marry, Nielson speciously argued that gays and lesbians should be denied the right to marry because same-sex families are “inferior to heterosexual families.”

The Neilson nomination follows last week’s announcement by the Trump Administration that it plans to resubmit the nominations of 21 Federal judges from last year, many of whom, like Nielson, have proven anti-LGBT records. Senate Republicans are doubling down on this effort by working behind the scenes to change the rules for confirming Trump’s most discriminatory nominees so that the American people have less time to weigh in on these crucial decisions.

Underscoring the significant stakes in place if Mr. Nielson is confirmed to the federal bench, the letter, sent to the Senate Judiciary Committee this morning, highlighted Utah’s significant LGBT community with Salt Lake City alone being home to “the seventh highest percentage of adult LGBT people in the country – even larger than New York City.”

The full letter, below, was sent to the Senate Judiciary Committee this morning ahead of a committee hearing today. The full text can be found below and here: https://www.lambdalegal.org/in-court/legal-docs/dc_20180110_lgbt-groups-oppose-howard-nielson

January 10, 2018

 

The Honorable Charles Grassley

Chairman

Senate Committee on the Judiciary

224 Dirksen Senate Office Building

Washington, D.C. 20510      

 

The Honorable Dianne Feinstein

Ranking Member

Senate Committee on the Judiciary

152 Dirksen Senate Office Building

Washington, D.C. 20510

RE:     LGBT Groups Oppose Confirmation of Howard Nielson

Dear Chairman Grassley and Ranking Member Feinstein:

We, the undersigned national, state and local advocacy organizations, representing the interests of lesbian, gay, bisexual and transgender (LGBT) people and everyone living with HIV, urge you to oppose the nomination of Howard Nielson to the U.S. District Court for Utah. There are over 70,000 LGBT people who live in the state of Utah. Salt Lake City has the seventh highest percentage of adult LGBT people in the country—even larger than New York City. It is critical that members of this vulnerable minority, like everyone else, have access to equal justice under the law when they enter the courtroom. Unfortunately, Mr. Nielson’s long record of working to undermine protections for LGBT people, and his highly offensive attacks on the integrity of a gay federal judge, demonstrate that he will not be able to impartially administer equal justice. 

Like nearly one-third of the judicial nominees that have been put forward by this administration, Mr. Nielson has a long history of working to strip LGBT people of their legal protections. Mr. Nielson represented the proponents of Proposition 8, a ballot measure passed in California in 2008 that denied same-sex couples the freedom to marry. Almost a year after a district court struck down the discriminatory ban, Mr. Nielson filed a motion asking to vacate the ruling. The motion argued that the judgment should be vacated because the presiding judge, Judge Vaughn Walker—a Reagan appointee who was randomly assigned the case—did not reveal that he was in a long-term same-sex relationship, and that because he was in such a relationship, he must have an interest (namely, an intention to marry) that could be substantially affected by the outcome of the proceeding. The motion insultingly asserted that the public could not be confident that Judge Walker did not have a direct personal interest in the outcome unless he “unequivocally disavowed any interest in marrying his partner.” In referring to the procedural and substantive rulings issued by Judge Walker in the case, the motion makes the highly offensive assertion that “the unprecedented, irregular, and/or peremptory nature of these rulings is difficult – very difficult – to take as the product of an objective, impartial mind."

Just as President Trump’s attack on the integrity of courts have shocked the nation, Mr. Nielson’s suggestion that Judge Vaughn Walker’s same-sex relationship is evidence of bias is as degrading to the judiciary as it is to LGBT people. Merely sharing characteristics in common with members who will be affected by a ruling is not a basis for disqualification. Similar arguments challenging the impartiality of women to decide cases involving gender or African-American judges to decide civil rights cases had been discredited long before Mr. Neilson put forth his insulting argument. Mr. Nielson’s attempt to distinguish Judge Walker’s sexual orientation from his same-sex relationship was equally misguided. As then California Attorney General Kamala Harris pointed out in her opposition to the motion, “this distinction is without a difference and courts have seen such requests for what they are: thinly veiled attempts to disqualify judges” based on personal characteristics. As Ms. Harris’ brief stresses, every single one of the attempts to disqualify judges on the basis of their race, gender, or religious affiliation has been rejected by other courts. Furthermore, the Supreme Court has refused to distinguish between status and conduct in sexual orientation. Lastly, there was zero evidence to sustain such an untenable accusation of bias. As the court rightly recognized, disqualifying Judge Walker would have resulted in an unreasonable disqualification standard based on assumptions about the future and elusive desires of judges on a wide range of issues and would place an enormous burden on minority judges that would “infer subjective future intent on the basis of a judge’s membership in a particular class.”

 

Mr. Nielson’s attacks on the integrity of Judge Walker must also be viewed in the larger context of the arguments that he advanced during the Proposition 8 litigation. Mr. Nielson did not stop with aiming to discredit Judge Walker; he sought to cast doubt on the concept of sexual orientation itself. Despite the scientific consensus that sexual orientation is immutable, Mr. Nielson went to extraordinary lengths to sidestep that consensus during the  Proposition 8 litigation, including by repeatedly suggesting that there is no clear definition of “sexual orientation.” During cross-examination, Mr. Nielson maintained that there is no way to distinguish being lesbian, gay, or bisexual from being “confused or maladjusted.” In seeking to undercut the fact that gay, lesbian and bisexual individuals make up a discrete group, Mr. Nielson erases the fact that sexual orientation is a fundamental and indistinguishable part of who they are. In addition, despite the prevalence of recent studies showing that LGBT people experience poor health care outcomes as a result of discrimination, Mr. Nielsen sought to discredit such research by citing outdated studies purporting to show that gay, lesbian and bisexual people do not experience minority stress.

Following the Proposition 8 litigation, Mr. Nielson channeled his antipathy towards LGBT people into authoring an amicus brief opposing marriage equality in Obergefell v. Hodges. The brief argued that gays and lesbians should be prohibited from marrying because limiting “valid” marriages to heterosexual couples increases the likelihood that children will be born in enduring family units by “both the mothers and the fathers who brought them into the world." This specious argument, in addition to being irrational and offensive, flies in the face of social science studies showing that children raised by same-sex parents are emotionally, socially, and educationally equivalent to their peers. The brief, however, demonstrates Mr. Nielson’s view of same-sex families as constituting family units that are inferior to heterosexual families.

While Mr. Nielson has a duty as counsel to provide zealous advocacy, his reliance on specious and insulting arguments targeting LGBT people deserve and demand scrutiny. If such impugning tactics were applied to other protected characteristics such as gender, race or religion, Mr. Nielson’s ability to administer impartial justice would be seriously questioned, and his record should not be given less scrutiny because such scorched-earth tactics have targeted the LGBT community with particular fervor.

In addition to the issues that we have highlighted above, we share the concerns raised by others about Mr. Nielson’s approach to civil rights generally. For example, as Counselor to the U.S. Attorney General, he was one of the attorneys identified in a 2008 report from the Department of Justice Inspector General as having corrupted the hiring process for Honors Program attorneys by applying a political litmus test to screen out candidates with Democratic and progressive affiliations that were apparent on their applications. His failure to adhere to some of the most basic civil service protections also casts doubt on his suitability for a lifetime appointment to the federal bench, where he would be expected to administer impartial justice without favor for those who share his political views. From these and other aspects of his record, it appears that Mr. Nielson’s prejudice is not reserved for LGBT people. His record demonstrates that his appointment to the federal bench stands to cause serious harm to the LGBT community, as well as other communities who rely on the federal judiciary. We strongly urge you to reject his nomination.

Thank you for considering our views on this important issue.  Please do not hesitate to reach out if we can provide additional information throughout the confirmation process.  You can reach us through Sharon McGowan, Director of Strategy for Lambda Legal, at smcgowan@lambdalegal.org.

 

Very truly yours,

Lambda Legal

American Atheists

CenterLink: The Community of LGBT Centers

Equality California

FORGE, Inc.

Family Equality Council

National Center for Lesbian Rights

National Center for Transgender Equality

National Equality Action Team (NEAT)

National LGBT Bar Association

National LGBTQ Task Force Action Fund

Outserve-SLDN

People For the American Way

Pride at Work

Transgender Law Center

Whitman-Walker Health

 

cc: United States Senate Judiciary Committee Members

 

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Contact Info

For further information, or to speak with a representative of Lambda Legal, please contact Ian Wilhite at iwilhite@lambdalegal.org

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