Lambda Legal: Any Friend of Rick Santorum is No Friend of Ours

(Washington, DC, June 28, 2018) – Today, Lambda Legal urged Senate Judiciary Committee Chairman Grassley and Ranking Member Feinstein to oppose the nomination of David Porter, President Trump’s nominee to the U.S. Circuit Court of Appeals for the Third Circuit. In a joint letter led by Lambda Legal, multiple national, state, and local LGBT organizations ask the leaders of the Senate Judiciary Committee to oppose Mr. Porter’s nomination in light of the clear evidence in his record indicating that he cannot be trusted to administer fair and equal justice to LGBT people, or to apply case law affirming the rights of LGBT people with which he may not agree.

In the letter, Lambda Legal sets forth Mr. Porter’s troubling history of anti-LGBT advocacy, and his personal connection to organizations and individuals who champion extreme anti-LGBT views, including the Center for Vision & Values, an anti-LGBT think tank at Grove City College that has vigorously advocated the use of so-called “conversion therapy,” which has been denounced by the American Medical Association as harmful and unethical.

The letter goes on to detail Mr. Porter’s long history of working with his close ally Rick Santorum in their collective efforts to demean and diminish the LGBT community. Mr. Porter has openly praised the former U.S. Senator from Pennsylvania, “who was once named as the most anti-LGBT politician in the United States.” The letter also highlights Mr. Porter’s support of Mr. Santorum’s 2005 book, It Takes a Family, which criticizes marriage equality, disparages same-sex couples and their families, and blames “the influence of radical feminism” for women finding it “more socially affirming to work outside the home than to give up their careers to take care of their children.”

“Any defender of Rick Santorum’s extreme world view cannot be trusted by the LGBT community,” said Sharon McGowan, Legal Director and Chief Strategy Officer at Lambda Legal. “Someone whose views are this far out of the mainstream should not be given a lifetime appointment to the federal judiciary, a position of tremendous public trust.”

The letter demands that Chairman Grassley, and Senate Republicans on the committee apply the same level of scrutiny to Mr. Porter’s prior advocacy as they have repeatedly done with past nominees. As the letter states, “Mr. Porter and his supporters will surely try to deflect any criticism relating to his prior advocacy by insisting that he was simply representing his client and that the values of the client should not be attributed to Mr. Porter as an attorney…In fact, just over a month ago, Senator Cruz voted against a nominee because the senator felt the nominee was an “aggressive advocate” on issues such as marriage equality and the Second Amendment in his role as Attorney General for the State of Hawaii.”

The full letter, below, was sent to the chair and ranking member of the Senate Judiciary Committee on Wednesday. The full text can be found below and here: https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/20180627_lettr_27-lgbt-groups-oppose-confirmation-of-david-porter.pdf

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June 28, 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 David Porter

Dear Chairman Grassley and Ranking Member Feinstein:

We, the undersigned 27 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 David Porter to the U.S. Court of Appeals for the Third Circuit.  Mr. Porter’s record leaves us with grave doubt that he is capable of administering fair and impartial justice towards LGBT people and other marginalized communities.

Mr. Porter’s history of advocacy, and his testimony before the Senate Judiciary Committee, raise serious doubts about his willingness to faithfully apply law with which he may not agree.  During his representation of Penn State University in a discrimination case brought by a lesbian basketball player who claimed that the school coach had a de facto “no lesbians” policy, Mr. Porter accused the plaintiff of initiating the litigation to “create new social policy” in order to “elevate perceived sexual orientation to a fundamental substantive due process right and/or add it to the limited ranks of suspect classes that receive heightened protection under the Equal Protection Clause.” When asked about this brief by Senator Klobuchar during his Senate Judiciary Committee testimony, and whether he would be able to apply the law establishing heightened protection for sexual orientation, Mr. Porter responded by stating that he would have no problem doing that if the courts come down that way or if Congress determines to expand protected classes. Mr. Porter’s answer, however, fails to take into account the fact that the Supreme Court, on no less than four occasions, has applied a more searching form of scrutiny than “traditional rational basis” to government action discriminating on the basis of sexual orientation. Mr. Porter’s reference to the need for Congressional action raises serious concern about his willingness to faithfully apply precedent with which he may disagree.   

Mr. Porter and his supporters will surely try to deflect any criticism relating to his prior advocacy by insisting that he was simply representing his client and that the values of the client should not be attributed to Mr. Porter as an attorney.  It should be noted, however, that in previous years, now-Senate Judiciary Committee Chairman Grassley repeatedly withheld his support from nominees due to his belief that a nominee’s prior advocacy is indeed relevant when considering the nominee’s qualifications and fitness for a lifetime appointment to the federal bench.  And Chairman Grassley is not alone in this regard.  In fact, just over a month ago, Senator Cruz voted against a nominee because the senator felt the nominee was an “aggressive advocate” on issues such as marriage equality and the Second Amendment in his role as Attorney General for the State of Hawaii.  It cannot be the case that aggressive “liberal” advocacy is disqualifying but aggressive conservative advocacy is irrelevant when assessing a nominee’s suitability for the federal bench.  If prior advocacy offered a view into the qualifications of candidates when a candidate of one political party was nominating them, then this aspect of the candidates record should be equally subject to scrutiny now. 

In Mr. Porter’s case, there are other aspects of his record that suggest that the values and philosophy that he would bring to the bench are inconsistent with the administration of fair and impartial justice for LGBT people.  Mr. Porter is a trustee of Grove City College, a private religious college that was recently named the least LGBT-friendly college in the country.  Notably Grove City College does not allow its students to accept federal financial aid in order to avoid complying with Title IX, a federal law critical to ensuring that LGBT students have access to an education free from discrimination and harassment.  Mr. Porter is also a contributor to the Center for Vision & Values (“Center”), a think tank at Grove City College that has vigorously advocated against LGBT protections. The extreme anti-LGBT positions advanced by the Center include support for conversion therapy,  which has been denounced by the American Medical Association as harmful and unethical;  arguments denigrating those in same-sex relationships and trivializing the struggle for marriage equality;  and repeated assaults on the dignity of transgender people. Mr. Porter’s affiliation with an institution driven by such deep anti-LGBT animus should leave any reasonable person with serious doubt about his ability to fairly adjudicate issues affecting the rights of the LGBT community.  Furthermore, Mr. Porter has expended significant personal effort supporting organizations and individuals who promote discrimination against LGBT people.  Chief among them is former Senator Rick Santorum, who was once named as the most anti-LGBT politician in the United States. In praising Mr. Santorum’s 2005 book, It Takes a Family, Mr. Porter clearly wished to align himself with the extreme views set forth in that text, which included criticizing marriage equality, disparaging same-sex couples and their families, and blaming “the influence of radical feminism” for women finding it “more socially affirming to work outside the home than to give up their careers to take care of their children.” Mr. Porter’s endorsement of Mr. Santorum’s controversial book only further reinforces our concern about his ability to treat LGBT people with equality and dignity, and to fairly apply the law should LGBT people or issues come before him as a judge. 

Due to these concerns and others, Senator Casey announced his opposition to Mr. Porter and has refused to return his blue slip, a decision that would have been honored in the past.  And yet, Chairman Grassley has once more chosen to ignore a home state senator’s refusal to return a “blue slip” in order to advance a highly controversial extremist nominee to the Court of Appeals.  Notwithstanding Chairman Grassley’s past dedication to and defense of the blue slip tradition (when his party was in the minority), Mr. Porter’s nomination marks the fourth time in just over a year in which Chairman Grassley has chosen to ignore the input of a home state senator for a circuit court judicial nomination. In fact, as recently as 2016, Chairman Grassley respected Senator Toomey’s refusal to return a blue slip for nominee Rebecca Haywood, leaving the opening for Mr. Porter’s nomination. 

Chairman Grassley and others have tried to justify their abandonment of longstanding Senate traditions – traditions that were designed to promote consensus and temper extremism in judicial nominees – by suggesting that this is simply the “nuclear fallout” of ending the 60-vote filibuster.  His attempt to paint a picture that is wholly untethered to the facts should perhaps come as no surprise, as he is simply following the example set by the White House.  But the American people are entitled to expect better from the Senate, and from its leadership.  More importantly, the removal of these norms and safeguards renders the Senate nothing more than a rubber stamp for the executive branch, whose actions become more dangerous to constitutional norms and core American values by the minute.  Instead, in service of raw partisan and political interests, the Senate continues to abdicate its duty to serve as an independent check when it comes to the integrity of our federal judiciary and, by extension, the health of our democracy. 

For all of the foregoing reasons, we urge you to oppose the nomination of Mr. Porter, whose record renders him unsuitable for a lifetime position to the federal bench.  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, Chief Strategy Officer and Legal Director for Lambda Legal, at smcgowan@lambdalegal.org.

Very truly yours,

Lambda Legal

Alaskans Together For Equality

American Atheists

CenterLink:  The Community of LGBT Centers

Equality Alabama

Equality California

Equality Federation

Equality Florida

Equality North Carolina

Equality Pennsylvania

Equality South Dakota

Equality Texas

FORGE, Inc.

FreeState Justice

Garden State Equality

Georgia Equality

GLAAD

National Black Justice Coalition

National Council of Jewish Women

National LGBTQ Task Force Action Fund

Outserve – SLDN

The LGBT Bar Association and Foundation of Greater New York (LeGaL)

The Trevor Project

Transcend Legal

TransOhio

Whitman-Walker Health

Witness to Mass Incarceration

cc: United States Senate Judiciary Committee Members