President Donald Trump incessantly brags that American citizens selected him to “Make the Judiciary Great Again” and constantly reminds the public that the huge number of federal jurists whom Trump has appointed will be deciding cases decades after his tenure is over. Trump has rapidly submitted many circuit and district court candidates, but not one of his 123 nominees has been openly lesbian, gay, bisexual, transgender or queer (LGBTQ). The White House has also instituted endeavors, specifically regarding transgender people, which seem discriminatory. Indeed, a third of the judicial nominees whom the President has appointed have compiled anti-LGBTQ records. Because Trump pledged to diligently represent all citizens once he secured the presidency, seating diverse jurists assumes crucial relevance. Because of this promise and the significant discrimination that individuals within the LGBTQ community experience, the complete absence of LGBTQ nominees in Trump’s candidates and confirmees warrants systematic analysis.
The first section of this essay reviews why enhanced diversity is critical, ascertaining that expanding minority representation improves judicial decision-making, restricts biases that can undercut justice, and enlarges public confidence in the federal bench. It also recounts how contemporary administrations examine diversity related to LGBTQ candidates when tendering judicial nominees, and detects that all Presidents who followed George H.W. Bush (save George W.) confirmed LGBTQ judges, even though considerably fewer LGBTQ attorneys practiced during the 1990s. The second portion scrutinizes President Trump’s judicial appointments record, and the third surveys its consequences. Because the absolute lack of LGBTQ jurists can have detrimental effects, and considering that Trump possesses multiple years still to rectify this dearth, the concluding section posits suggestions that could help to increase the number of LGBTQ individuals nominated and confirmed for the federal bench.
Carl Tobias, Appointing Lesbian, Gay, Bisexual, Transgender and Queer Judges in the Trump Administration, 96 Wash. U. L. Rev. Online 11 (June 2018).