Undeterred by being in the lame duck for Congress, the U.S. Senate on Tuesday approved the nomination of Stephen Schwartz to the U.S. Court of Appeals for Federal Claims, a nominee with an anti-LGBTQ record who rounds out the unprecedented number of judges confirmed under President Trump.
The vote on the Schwartz confirmation was a strict 49-47 party-line vote, with Republican senators, including Sen. Susan Collins (R-Maine), voting to approve the Trump pick while Democratic senators voted to reject him.
Nominated by Trump in June 2017, Schwartz’ nomination had been pending for more than two years and takes place in lame duck just before the end of the Trump administration and after the 2020 election when senators would be held accountable for their votes. Schwartz, 34, was confirmed to serve for a 15-year term on the U.S. Court of Appeals for Federal Claims.
When North Carolina’s anti-LGBTQ House Bill 2 was challenged in court, Schwartz represented the North Carolina legislature in defending the law, which barred municipalities from enacting LGBTQ non-discrimination ordinances and transgender people from using bathrooms in state-owned properties consistent with their gender identity.
Schwartz has also served as counsel to the Gloucester County School Board in Virginia in seeking to bar transgender student Gavin Grimm from access the restroom consistent with his gender identity. After ruling in favor of Grimm, the U.S. Fourth Circuit Court of Appeals in September refused to reconsider the case “en banc” at the request of the school.
Schwartz, in written responses to the Senate Judiciary Committee, denied his roles in the litigation would have any bearing on his approach as a federal appeals judge because he has “represented a diversity” of interests.
“Like many judicial nominees, I have represented a wide variety of clients in cases involving a wide variety of issues,” Schwartz wrote. “While some of them have been associated with political controversy, I have also been involved in a large amount of general commercial litigation with little, if any, political salience. I have represented farmers, small-boat cod fishermen, family business owners, and an inmate of the New York State prison system. I have been both aligned with and adverse to the federal government’s positions at various times.”
Asked specially about representing Gloucester County School Board against Grimm, Schwartz declined to offer go into details, but said he supports “privacy and dignity” for all people.
“This question refers to a pending case in which I currently represent one of the parties,” Schwartz wrote. “My obligations as an advocate make it inappropriate for me to answer this question in detail. I do believe that everyone is entitled to basic privacy and dignity.”
Sasha Buchert, senior attorney at Lambda Legal, said in a statement the confirmation Schwartz “another dark day for the U.S. judiciary and the latest attack on LGBTQ people from the Trump-Pence Administration.”
“Among the terrible catalogue of Trump’s nominees, Schwartz ranks at the top because of the extreme damage we know he would inflict upon our communities and institutions,” Buchert said. “Now, he will serve for 15 years on a consequential court that oversees LGBT issues in the military, and the balance between government actions and the people.”
To counterbalance Trump’s picks, progressives have been pushing the expansion of the judiciary, otherwise known as packing the court, when Biden takes office with Democratic choices, although that plan will likely not come to fruition after Democrats came up short in Senate pickups in the 2020 election.
Alphonso David, president of the Human Rights Campaign, said in a statement Schwartz’s record of litigating against LGBTQ right makes him unfit for the judiciary.
“Schwartz has made his career by actively working to undermine LGBTQ rights — from defending North Carolina’s House Bill 2 that mandated discrimination against LGBTQ people to supporting Gloucester County School Board’s discriminatory restroom policy that segregrated transgender students from their peers,” David said. “Schwartz is unqualified and unfit for any court, yet the Republican leadership in the Senate is attempting to advance his nomination through the lame duck with only days until President-elect Biden takes office.”
Other anti-LGBTQ judges confirmed under Trump are U.S. District Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas, who served as deputy general counsel First Liberty Institute, which represented an Oregon refusing to make a wedding cake of a same-sex couple; and U.S. Circuit Judge Kyle Duncan, who also had a role in litigation against Grimm. More recently as a judge, Duncan refused to recognize the personal pronouns of a transgender inmate.
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