Trump Judicial Nominee Calls Transgender Individuals "Satan's Plan"

Trump's anti-gay extremist judicial nominee

The canons of judicial conduct which apply to federal court judges require that judges avoid the appearance of impropriety and that they recuse themselves from any case where their personal beliefs prevent them from being unbiased.  This is the case also under most state canons of judicial conduct. Even Virginia's canons of judicial conduct (not that they are always properly enforced) provide that a judge cannot allow his views on homosexuality and gender identity to influence his ability to render an unbiased ruling in a case or to allow opposing counsel the be disrespectful or biased against an LGBT party to a case before the court.  Despite these established rules and norms, two of Donald Trump's recent judicial nominees would seemingly willing flout these restrictions on judicial conduct. Perhaps the worst is Jeff Mateer, Donald Trump’s nominee for the U.S. District Court for the Eastern District of Texas, who has voiced extremely anti-LGBT animus.  Metro Weekly looks at this frightening nominee who is yet another cog in Trump's promises to Christofascists to roll back LGBT rights and to make our lives a living hell.  Here are excerpts:

Jeff Mateer, Donald Trump’s nominee for the U.S. District Court for the Eastern District of Texas, once described transgender children as part of “Satan’s plan.”

In a pair of 2015 speeches, Mateer, the first assistant attorney general of Texas, bemoaned the trend of states banning conversion therapy for LGBTQ minors, denounced transgender rights, and alleged that allowing same-sex marriage would lead to efforts to legitimize polygamy and bestiality, reports CNN.

In a May 2015 speech titled “The Church and Homosexuality,” Mateer discussed a lawsuit in Colorado where parents of a transgender first-grader sued her school to allow their daughter to use the girls’ bathroom.

“Now I submit to you, a parent of three children who are now young adults, a first grader really knows what their sexual identity?” Mateer said. “I mean it just really shows you how Satan’s plan is working and the destruction that’s going on.”

Mateer previously served as general counsel of the First Liberty Institute, a conservative advocacy group that has been involved in pushing anti-LGBTQ initiatives or opposing expansions of LGBTQ rights, such as passage of a nondiscrimination ordinance in Plano, Texas.

In November 2015, Mateer was speaking at a conference hosted by controversial anti-LGBTQ pastor Kevin Swanson [who has advocated for the execution of gays], during which he took issue with attempts to ban conversion therapy in New Jersey and California.

Unsurprisingly, Mateer, who must be confirmed by the U.S. Senate, is facing criticism for his anti-gay statements.

“President Trump has once again demonstrated his complete disregard for the LGBT community by nominating a person to the U.S. District Court for the Eastern District of Texas who opposes LGBT rights and dignity,” David Dinielli, deputy legal director at the Southern Poverty Law Center, said in a statement. “The nominee’s past statements prove that he cannot and will not rule fairly on issues affecting the LGBT community.

“Jeff Mateer has demonized the most vulnerable members of our community and expressed support for conversion therapy — the dangerous, fraudulent, discredited and inhumane practice that purports to change a person’s sexual orientation or gender identity.There is no place on our federal bench for people who harbor this sort of extreme and dangerous bias.”

“It’s concerning that the Trump Administration is trying to infuse its anti-transgender ideology into our judicial system,” Jennifer Levi, transgender rights project director at GLBTQ Legal Advocates & Defenders, said in a statement. “Our courts must serve as a backstop to President Trump’s divisive and exclusionary policies, not promote discrimination. Courts must treat all Americans fairly and promote equal rights.”

Another of Trump's disturbing judicial nominees is AmyConey Barrett, a right wing Catholic law professor who once suggested that one’s religious beliefs ought to take precedence over the U.S. Constitution. As Huffington Post noted, the Alliance for Justice (a progressive judicial advocacy group) called on the Trump regime to withdraw Barrett’s nomination because of her past writings on the role of faith in the courtroom. The organization also objected to her views on the matter of stare decisis, or the doctrine of legal precedent.  Stated another way, Barrett would seemingly ignore standing case law precidents that do no conform to her religious views. 

Quote of the Day: Ralph Northam on Aborted Cuccinelli Nomination to Virginia Supreme Court

Lt. Governor Ralph Northam

As noted in a post yesterday, Virginia Senate Republicans have cynically put Ken "Kookinelli" Cuccinelli's name in play for appointment to the Virginia Supreme Court.  As I noted, I can thing of few people less appropriate on the Court than an extremist and zealot like Cuccinelli.  I am not the only one who feels that way.  Lieutenant Governor Northam released the following statement (here via Facebook) in advance of an expected Senate floor vote to nominate former attorney general Ken Cuccinelli II to the Supreme Court of Virginia:

RICHMOND– Today Lieutenant Governor Northam released the following statement in advance of an expected Senate floor vote to nominate former attorney general Ken Cuccinelli II to the Supreme Court of Virginia:

“This is an embarrassment and affront to the people of Virginia and to the judicial process. Ken Cuccinelli has spent his career as an activist trying to outlaw abortion and birth control, denying science and climate change, and aggressively denigrating and denying our LGBT community of basic rights.”

“We constantly hear about supposed efforts to politicize our courts, and I cannot think of a more cynical and obvious attempt to politicize the judicial process than to nominate Ken Cuccinelli to the Supreme Court of Virginia. And, with just a few days left in Session, making this nomination in the twelfth hour leaves little to no time for the public, the legal community, and other stakeholders to weigh in and discuss this with their legislators.”

“I am disappointed that the Senate Courts of Justice Committee would make this nomination and, as President of the Senate, I am hopeful that the Senate will reject this nomination.”

Thankfully, as the Virginian Pilot is reporting, Cuccinelli withdrew his name from consideration after the backlash that his nomination triggered.  Here are highlights:

Cuccinelli's name coming under consideration prompted a backlash from liberal groups at odds with his conservative positions on abortion, gay rights and other issues.

McDougle said Cuccinelli was "very interested" in the position but he and his family "ultimately came to a different conclusion," notifying lawmakers Wednesday that he did not want to be considered. There was then quick movement toward McCullough, he said.

Cuccinelli's withdrawl came as a relief to liberal activist groups, who coordinated a protest at the Capitol on Wednesday after news surfaced that he was under consideration.

VA Senate Republican Seek to Nominate Ken "Kookinelli" Cuccinelli to Virginia Supreme Court

As an attorney for over 35 years I can think of few people less suited for the Virginia Supreme Court than gay hating religious zealot, anti-immigrant bigot and climate change denier, Ken "Kookinelli" Cuccinelli.  Yet that is exactly who a Republican controlled committee nominated to the Virginia Supreme Court in an apparent effort to make Virginia a national and international laughing stock akin to Alabama. Moreover, Cuccinelli strikes me as totally incapable of meeting the standards of the Canons of Judicial Conduct which require a judge or justice to be unbiased towards issues and litigants before their court.  No gay Virginian, no environmentalist, and many others could not possible expect to be treated in an unbiased way by Kookinelli.  Multiple organizations are mobilizing to facilitate sane Virginians in sending a message to their state Senators that Cuccinelli is absolutely unacceptable.  Equality Virginia has a page here to send a message, to state senators but many others have similar links to stop this travesty.  The Virginian Pilot has details on this utterly insane and inappropriate nomination.  Here are highlights:

Some Republicans in the General Assembly are discussing the idea of electing former Attorney General Ken Cuccinelli to the Supreme Court of Virginia.

House and Senate Republican leaders have said they want to elect Appeals Court Judge Rossie Alston to the high court. There are plenty of votes to do that in the GOP-dominated House, but Republicans are one vote shy in the Senate, leading to an impasse.

Should they be unable to elect Alston, two lawmakers said, Republicans would discuss other candidates and Cuccinelli’s name is in the mix. Also among those that have been mentioned: Court of Appeals Judges Stephen R. McCullough and Mary Grace O’Brien. 

Most lawmakers are staying quiet about the situation because reaching 21 votes on the judicial election in the Senate has been a challenge and there’s uncertainty over what will happen.

The drama stems from a recess interim appointment last year by Gov. Terry McAuliffe, who appointed former Fairfax County Circuit Court Judge Jane Marum Roush to the Supreme Court to replace Justice LeRoy F. Millette, Jr. after his retirement.

House and Senate Republican leaders later said McAuliffe did not properly consult them, and since it was the duty of the General Assembly to elect judges, they preferred Alston and would elect him.

Cuccinelli is an ardent foe of abortion and gay marriage, and as attorney general questioned the science behind global warming.

I find Cuccinelli nothing short of frightening.  In addition, in my opinion, he is also a closeted self-loathing gay man who clings to strident religious dogma and lashing out at other gays as a way to deal with his own raging internalized homophobia.   The man needs a mental health intervention, not an appointment to the Virginia Supreme Court.   PLEASE contact you state Senator and urge them to vote "No" to Cuccinelli.

Scalia's "Free" Trip to an Exclusive Resort

One of the things that judges, but federal judges in particular, are supposed to avoid is any appearance of impropriety or bias.  Having had two law partners become federal judges, I have seen the vetting process first hand and witnessed the efforts of these two individuals to refrain from any appearance of political partisanship or acceptance of gifts from those who might ever appear before them in court.  Not so with Antonin Scalia and Clarence Thomas, each of whom did little to hide their political or religious prejudices.  I have long argued that both needed to be removed from the Supreme Court if they could not abide by the canons of judicial conduct.  Likewise, as we now discover, nor did Scalia avoid accepting expensive gifts. As it turns out, Scalia was enjoying a free junket at the Cibolo Creek Ranch resortat the time he suffered his fatal heart attack.  A piece in the Washington Post looks at this unseemly situation.  Here are excerpts:

Justice Antonin Scalia’s sudden death over the weekend at a West Texas ranch raised questions about the nature of his travel, who paid for the trip and whether justices are subject to the same disclosure guidelines as other judges or federal officials.

The ranch is 30,000-acre getaway that is home to John B. Poindexter, according to the website of J.B. Poindexter & Co. It is a remote location that has reportedly attracted the likes of Mick Jagger, Jerry Hall and Bruce Willis. 

All of which raises the question: Who pays for a Supreme Court justice to make this kind of trip?  Not Scalia, it turns out. Poindexter told The Washington Post that Scalia was not charged for his stay, something he described as a policy for all guests at the ranch.

“I did not pay for the Justice’s trip to Cibolo Creek Ranch,” Poindexter wrote in a brief email Tuesday. “He was an invited guest, along with a friend, just like 35 others.” . . . However, Poindexter said he did not pay for Scalia’s charter flight to Texas. . . . Poindexter, who would not identify Scalia’s friend . . . 

The nature of Poindexter’s relationship with Scalia remained unclear Tuesday, one of several lingering questions about his visit. It was not known whether Scalia had paid for his own ticket to fly to the ranch or if someone else picked up the tab, just as it was not immediately clear if Scalia had visited before.

It is also still not known who else was at the Texas ranch for the weekend, and unless that is revealed, there could be concerns about who could have tried to raise an issue around Scalia, said Stephen Gillers, who teaches legal and judicial ethics at the New York University School of Law.  

The 1978 Ethics in Government Act, passed in the wake of the Watergate scandal, states that all federal judges — up to and including the chief justice and the associate justices — are required to report certain gifts. It also requires them to identify and describe when someone who is not a relative gives them “transportation, lodging, food, or entertainment” worth a certain amount.

Scalia was among the court’s most active travelers. However, these disclosure forms offer scant details about who else attends events with the justices.

Judges must report reimbursements related to travel totaling $335 or more, according to filing instructions posted by the group Judicial Watch. And judges are not allowed to accept anything of value from a person who has a case in their court, the document notes.

The biggest ethical questions involve when justices should recuse themselves from cases, says Gillers.

“Is [the justice] the final arbiter of whether or not he has to recuse himself? And the answer is yes,” he said. “Every other federal judge below the Supreme Court, every other federal judge’s decision about whether or not he should be recused is potentially subject to the review of a higher judge or other judges on his court. But no one reviews the decision of a justice.”

Roberts issued his [2011] report at the end of a year in which more than 100 law professors nationwide asked Congress to give the Supreme Court an ethical code of conduct after it emerged that Scalia and Justice Clarence Thomas had attended private political meetings sponsored by billionaire conservative donors David and Charles Koch. That same year, Kagan was called on to recuse herself from hearing challenges to health-care reform, and a watchdog group said Thomas had failed to report his wife’s income from a conservative think tank before he amended his financial forms.

In my view, Scalia was a very arrogant and bigoted man and one who cared little about the rights of others.  In many ways, he was the Donald Trump equivalent of the Supreme Court.  The Court is better without him.  

Clarence Thomas: One of the Five Worst Supreme Court Justices In American History

This blog has frequently looked at the the manner in which Justice Clarence Thomas (and Justice Scalia) disregards the canons of judicial conduct that applies to federal judges and the mandates to avoid circumstances that will raise questions as to a judge or justices impartiality.  Between his wife's political activities, his "lapses in memory" about the six figure income his wife has generated, and his attendance at scurrilously partisan events, Thomas is a train wreck who, if he were a typical federal judge, would be removed from the bench.  And that doesn't even get into Thomas' idiocy on the Supreme Court and his seeming intellectual obtuseness.  A piece in Think Progress looks at the five worse justices in America's history and, not surprisingly, Thomas makes the list.  Here are some highlights:

Today is the official release date for my book, Injustices: The Supreme Court’s History of Comforting the Comforted and Afflicting the Afflicted. As you might guess from the title, it is not particularly complimentary of the Supreme Court as an institution. As the book’s jacket explains, “the justices of the Supreme Court have shaped a nation where children toiled in coal mines, where Americans could be forced into camps because of their race, and where a woman could be sterilized against her will by state law. The Court was the midwife of Jim Crow, the right hand of union busters, and the dead hand of the Confederacy. Nor is the modern Court a vast improvement, with its incursions on voting rights and its willingness to place elections for sale.”

Even amidst this dark history, certain justices stand out as particularly mean-spirited, ideological or unconcerned about their duty to follow the text of the Constitution. Based on my review of over 150 years of Supreme Court history in Injustices, here are the five jurists who stand out as the worst justices in American history:

1) Justice Stephen Johnson Field.  As a sitting justice in 1880, Justice Stephen Johnson Field launched a dark horse bid for the Democratic Party’s presidential nomination. Claiming that “the chilling shadow of the empire” was descending upon the United States, Field fronted an anti-government campaign that would make all but the most strident modern day tea partiers blush. . . . . . Justice Field never became president, but he worked as a justice to implement the very same policies his campaign promised that he would support if elected to the White House. Field joined the Court’s pro-segregation decision in Plessy v. Ferguson, and he authored another opinion permitting former Confederate officials to practice law in federal court. . . . The cause of Field’s life, however, was neutering the government’s power to enact economic and business regulation. 

2) Chief Justice Roger Taney. Taney authored what is widely viewed as the worst single decision in the Supreme Court’s history, the pro-slavery decision in Dred Scott v. Sandford. Though Taney was far more moderate on the issue of slavery at a young man — he once referred to slavery as a “blot on our national character” and he emancipated his own slaves — his views hardened in his old age. In 1857, the same year as Dred Scott, Taney labeled the abolitionist movement “northern aggression.”  . . . . Dred Scott was an abominable decision, rooted in the notion that men and women of African descent “had for more than a century before been regarded as beings of an inferior order” who are “so far inferior that they had no rights which the white man was bound to respect.”

3) Justice James Clark McReynolds.  McReynolds was, in Time magazine’s words, “a savagely sarcastic, incredibly reactionary Puritan anti-Semite.” McReynolds was lazy. He often would not even open the briefs lawyers filed to prepare him to hear a case until hours before the case was argued, and he frequently spent just a few hours crafting opinions that would govern all other courts in the country. McReynolds was nasty. He labeled President Franklin Roosevelt “that crippled son-of-a-bitch . . . in the White House,”. . . . . above all, Justice McReynolds was a bigot. He refused to speak to Justice Louis Brandeis for Brandeis’s first three years on the Court because Brandeis was Jewish, and he forbade contact between his staff and the Jewish Justices Brandeis and Benjamin Cardozo. . . . . McReynolds was, sadly, one of many justices who joined opinions striking down child labor laws or a minimum wage

4) Chief Justice Melville Fuller.  As a delegate to Illinois’s constitutional convention in 1862, he voted to prohibit black men and women from settling in the state or casting a ballot in its elections. As a member of the state legislature, he labeled the Emancipation Proclamation “unconstitutional, contrary to the rules of civilized warfare,” and “calculated to bring shame, disgrace and eternal infamy” upon the nation. He also backed a constitutional amendment preventing congressional interference with slavery. . . .  Chief Justice Fuller presided over the Court’s infamous decision in Lochner v. New York, which struck down a New York law prohibiting bakeries from overworking their workers. Lawyers and legal historians widely view this decision as symbolic of the entire era in the early twentieth century when Field’s values dominated the Supreme Court — indeed, this age is commonly referred to as the Lochner Era.

 5) Justice Clarence Thomas.  Justice Clarence Thomas is the only current member of the Supreme Court who has explicitly embraced the reasoning of Lochner Era decisions striking down nationwide child labor laws and making similar attacks on federal power. Indeed, under the logic Thomas first laid out in a concurring opinion in United States v. Lopez, the federal minimum wage, overtime rules, anti-discrimination protections for workers, and even the national ban on whites-only lunch counters are all unconstitutional.

There's more on each justice, so read the entire piece.  The take away on Thomas?  He is unfit to be on the Court and needs to be removed.  I can understand that the Republicans wanted to appoint a black to the Court.  What I don't understand is why they insisted on appointing a total idiot, in my opinion.

Virginia Judge Reverses Himself, Grants Transwoman Name Change

Currently, the ONLY protections LGBT Virginians have under Virginia law appear in the Virginia Canons of Judicial Conduct which among other things in Canon 3 require judges who cannot remain unbiased and objective based on a litigants sexual orientation to recuse themselves.  In plain English, this means that they must not hear the case and defer the case to a different judge.  Sadly, far too many Virginia judges ignore the Canons and the enforcement of the Canons is to say the least almost nonexistent.  In my divorce, the judge was a far right Catholic who viewed being gay as a "choice" and sought to punish me accordingly.  Now, a Lynchburg, Virginia judge (who was formerly legal counsel at the late Jerry Falwell's lunatic Liberty University and a legislative aid to one of the authors of Virginia's anti-gay marriage ban) has reversed himself and decided to grant a name change to a transwoman (pictured above) after previously denying the petition.  Whether the judge's change of course was due to negative media coverage or a realization that he might face consequences we will never know.  Gay RVA has details.  Here are highlights:

In a reversal of his original decision, Lynchburg judge F. Patrick Yeatts has granted transwoman Julianna Fialkowski a name change.

Lawyer Kate Fletcher received the information late this afternoon via fax. She suggested it was the brief she filed, combined with the press around the issue, which led the judge to rule based on the statute which is what they had asked for all along.

“Julianna has complied with the statute and wasn’t requesting the name change for fraudulent purpose, nor to infringe on anyones rights,” said Fletcher. “There for he is granting the request.”

She has a message for other who fear they might have to go through a similar experience when they seek a name change. “I don’t think holding back on account of being afraid for yourself is necessary;” Fialkowski said. “If enough support is sought after, it will be found.”

She told GayRVA earlier this week  Judge Yeatts said her the case was under “extra scrutiny” and it would be put under advisement after asking her medically specific questions pertaining to her transition, something not relevant to a name change request.

This line of questioning lead Fialkowski to believe she was being unfairly discriminated against.  Even in traditionally conservative Lynchburg, Fialkowski said she hadn’t ”faced any discrimination up until this point.”

Yeatts served as counsel to Jerry Falwell’s conservative Liberty University in the 90′s, and he was a legislative aide for state Sen. Stephen Newman when the Senator wrote VA’s constitutional ban on same-sex marriage, the Marshall-Newman amendment. He was elected to the Lynchburg Judgeship in 2011 by the state’s General Assembly.

Virginia’s name change laws are some of the easiest in the nation. The process consists of a few forms and a small fee. When GayRVA reached out for legal advice for those denied a name change, lawyers were surprised to hear it even happens.

“There is nothing in the statute that requires the applicant provide medical information. The application merely requires some demographic information (e.g. name, address, parent’s names, prior name changes etc.) and whether or not you are a felon or are incarcerated. The statute indicates that the name change will be granted unless the name change is being done for a fraudulent purpose or infringes upon someone else’s rights,” said Fletcher earlier this week.

But Fletcher wasn’t sure this would be the last time such a case of discrimination would pop up again in rural Virginia.  “I think it might happen again, but I think if it goes to a hearing we would be successful,” said Fletcher.

Unfortunately, under Virginia's judicial appointment system, partisanship and adherence to party platform mean more than one's likely competence  on the bench.  Given the GOP strangle hold on the House of Delegates, religious extremism definitely counts more than legal competence.  Yeatts is far from the only bigoted judge pushed through by Virginia Republicans.

Justice Antonin Scalia - It's Time to Retire

For regular readers it is no secret that I hold Supreme Court Justice Antonin Scalia in low regard and believe that it is far past time that the old bigot retire from the Court.  Scalia makes no effort to hide or disguise his prejudices and religious based bigotry.  Moreover, he makes a mockery of the canons of judicial conduct which govern the behavior of other federal court judges. Now, in the recent Supreme Court ruling that upheld the EPA's regulatory powers, Scalia wrote a dissent that suggest that senility can also be added to the reasons he needs to retire form the Court - or be removed.  Te only oher justice to join with Scalia was that mental midget of all mental midgets, Clarence Thomas.  Talking Points Memo looks at Scalia's major fuck up.  Here are highlights:

It's not often that a Supreme Court justice makes a factual blunder in a formal opinion.

Legal experts say Justice Antonin Scalia erred in his dissent in the 6-2 decision Tuesday to uphold the Environmental Protection Agency's authority to regulate coal pollution that moves across state lines. The Reagan-appointed jurist argued that the majority's decision was inconsistent with a unanimous 2001 ruling which he mistakenly said shot down EPA efforts to consider costs when setting regulations.

"This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA's contention that it could consider costs in setting [National Ambient Air Quality Standards]," Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA's position in the 2001 case was exactly the opposite. The agency was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air quality standards. It was the trucking industry that wanted the EPA to factor in cost. The 9-0 ruling sided with the EPA. The author of the ruling that Scalia mischaracterized? Scalia himself.

The conservative justice's error was noted by University of California-Berkeley law professor Dan Farber, who called it "embarrassing" and a "cringeworthy blunder." . . . . "This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it's a cringeworthy blunder."

Doug Kendall, the president of the Constitutional Accountability Center, a liberal legal advocacy group, said the error was mystifying and very unusual for a Supreme Court justice.

"It is a mind-blowing misstatement of a basic fact of the American Trucking Association ruling which Justice Scalia himself wrote. And it's not just a stray passage -- it's the basis for an entire section of the dissent," Kendall said. "It is very unusual to see a passage that so clearly misstates the fundamental facts of a prior ruling, especially one written by the justice himself."

As I said, if Scalia had any honor and wanted to protect his image in history, he'd resign now.  Sadly, given his hubris and arrogance, that is not what is likely to happen.

Justice Clarence Thomas’s Disgraceful Silence

I have often lamented the misconduct of Supreme Court Justices Clarence Thomas, Antonin Scalia and Samuel Alito who utterly ignore the rules of judicial conduct that apply to the rest of the federal judiciary.  If lower court judges engaged in the outrageous political partisanship that we have seen from these three justices or their open bias before hearing cases, they would be likely removed from office.  But in the case of Clarence Thomas, the misconduct goes even further.  The man is a dullard in my view and he doesn't even pay attention during oral arguments.  The man harms the very credibility of the United States Supreme Court.  A piece in The New Yorker looks at Thomas' embarrassing and disgraceful conduct.  Here are excerpts:

As of this Saturday, February 22nd, eight years will have passed since Clarence Thomas last asked a question during a Supreme Court oral argument. His behavior on the bench has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.

This point was especially apparent on January 13th, when the Court considered the case of National Labor Relations Board v. Noel Canning, which raises important questions about the President’s ability to fill vacancies when the Senate is in recess. It was a superb argument—highly skilled lawyers engaging with eight inquisitive judges. The case also offered a kind of primer on the state of the Court in action, with Thomas’s colleagues best viewed in pairs.

As for Thomas, he is physically transformed from his infamous confirmation hearings, in 1991—a great deal grayer and heavier today, at the age of sixty-five. He also projects a different kind of silence than he did earlier in his tenure. In his first years on the Court, Thomas would rock forward, whisper comments about the lawyers to his neighbors Breyer and Kennedy, and generally look like he was acknowledging where he was. These days, Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called “not paying attention.”

Thomas has a part to play, if he wants to take it. The Noel Canning case, for example, raises a profound issue in constitutional law. Noel Canning, a bottling company, is challenging a ruling of the National Labor Relations Board on the ground that some of its members were appointed illegitimately. All Presidents have used recess appointments, often without much controversy; Obama did so in this case because Congress had refused to act on his nominations, to the point that the N.L.R.B. didn’t have a quorum. 

No one, however, has been more outspoken about this conflict, at least on paper, than Thomas, the most extreme originalist on the Court. Scalia believes that the Court owes some deference to its own precedents, even if they differ from the original meaning of the text. Thomas is happy to lay waste to decades, even centuries, of constitutional law. Clearly, then, Thomas could have contributed to this spirited, important debate. Instead, on this day he was, as usual, checked out.

Still, there is more to the job of Supreme Court Justice than writing opinions.  . . . .
But the process works only if the Justices engage. The current Supreme Court is almost too ready to do so, and sometimes lawyers have a hard time getting a word in edgewise. In question-and-answer sessions at law schools, Thomas has said that his colleagues talk too much, that he wants to let the lawyers say their piece, and that the briefs tell him all he needs to know. But this—as his colleagues’ ability to provoke revealing exchanges demonstrates—is nonsense. Thomas is simply not doing his job.

By refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect. It would be one thing if Thomas’s petulance reflected badly only on himself, which it did for the first few years of his ludicrous behavior. But at this point, eight years on, Thomas is demeaning the Court.

For many reasons, Thomas needs to be removed from the Court.

A Day Of Desperation - One Year Later

I have debated whether or not to write about the events of a year ago today. Given the recent gay teen suicides I decided that I would because suicidal thoughts and actions are not reserved to the teenage set. It is all too easy for many of us to feel that things will never be better and that real happiness will never be ours. In this mindset, ending it all can seem the best solution - or at least according to one's clouded thinking at the moment. As long time readers of this blog know, my coming out and divorce process has been tumultuous and drama ladened. What is already a difficult process was made far worse by the readiness of attorneys in Virginia to use homophobia as a weapon to bludgeon a gay spouse in divorce proceedings and the willingness of judges to allow it - even though a plain reading of the Canons of Judicial Conduct bar such behavior and require homophobic judges in theory to recuse himself/herself from the case. I say in theory because from my experience and that of others I know gay bashing and gay baiting is a thriving sport in Virginia's courts. And sadly, the Judicial Review Board does NOTHING to punish or reprimand judges that violate the Canons by allowing such conduct.
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Last year, after ten months of seemingly non-stop drawn out hearings in my divorce where in all but one instance the judges involved allowed gay bashing and opposing counsel seem to almost get off sexually in debasing and abusing me for being gay, efforts at a global settlement collapsed. I received word of this fact around 10:00 AM on September 28, 2009. The only way that I can explain what happened after that is that I snapped emotionally and my only focus was on making it all stop. I left work, drove back home - the boyfriend wasn't at the house - got very drunk and parked my car in the garage with the door closed and the engine running. My office and the boyfriend had called the police when they could not verify my whereabouts and the police showed up at the house while I was still conscious. I ended up being transported to the hospital via ambulance - none of which I remember - after which I was subjected to two days of involuntary treatment and counseling. It's an experience I would not recommend to anyone for many reasons, not the least of which is the harm it does to those who love you. The problem is, of course, that at the point I took the actions I did, I was truly thinking of nothing more than making the nightmare stop. Nothing else mattered.

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A year later, I am glad that my efforts failed. Things are much better emotionally and psychologically and while still difficult, financially I am managing to survive. I have had a wonderful year with the boyfriend and my youngest daughter and I have re-established contact with my other two children. The experience has taught me, however, that as a community, LGBT Americans - indeed LGBT citizens of the world - must redouble our efforts to (1) support each other and (2) stamp out laws like DADT which have as their underlying basis the goal of making us legally inferior and re-enforcing the Christianist message that homophobia is fine and that, indeed, LGBT individuals are deserving of mistreatment. At the national level, this is a huge task and one of the reasons I continue to embrace LGBT activism.

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But not all of the work needs to be done at a national or even state level. In our communities, we need to be visible as LGBT individuals and not hide in fear of judgment. We need as many positive role models as possible - and not just for the benefit of gay teens. And we need to be willing to open our ears and hearts and listen to and give moral support to those being brutalized by the courts and larger society.

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As for the judicial system, whenever a judge ignores the Canons of Judicial Conduct, we need to file a complaint. Even if it goes nowhere, hopefully over time a significant volume of complaints may impact a judge's reappointment prospects. As for attorneys who gay bash and stoop to horrific tactics anti-gay tactics, have friends go to court with you so that you have independent witnesses and then have them file complaints with the State Bar. Base homophobia needs to be called out and condemned whenever and wherever it occurs. Better yet, boycott the law firms of such attorneys and make sure everyone you know is informed about the need to totally avoid such firms. Hopefully, in time an anti-gay reputation will hit them where it hurts most - the financial bottom line. Locally, in my opinion such firms include, but are not limited to Brandon Ziegler at Wolcott Rivers; Huff, Poole & Mahoney; Elizabeth K. Barnes; and Willcox & Savage. These law firms and attorneys need to become pariahs to the local LGBT community and not receive a dime of LGBT money.

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Oh, one caveat to the foregoing: for local gays contemplating divorce, you might want to nonetheless have an initial consultation and talk to these firms/attorneys early on (even if you know full well that you will not be retaining them) so that they will be conflicted out from representing the other side in your case. If they thereafter try to represent the opposing side, file a State Bar complaint.

Monday Melt Down - Update

As readers who saw a post I put up on Monday afternoon know, I went into a very serious melt down when I learned that the ex-wife had rejected what I saw as a fair settlement offer to end the post divorce wars which have been raging the last 10 months. Repeated court hearings with instances of gay bashing and - in my opinion anti-gay biased judges - had slowly but surely ground me down. Without going into all the details, I found myself in an involuntary stay at a local inpatient facility that bears some resemblance to One Flew Over the Cuckoo's Nest, at least in terms of some of the patients. My advice to anyone who may be thinking of doing something that might lead to such an result: DO NOT DO IT!! It was one of the most degrading and humiliating experiences of my life and in terms of what I need, did nothing for me since the program included no quality one on one therapy and most of the patients had much more difficult issues than my depression. Fortunately, I was released today and will now be able follow up with regular therapy and visits with my psychiatrist - perhaps exploring some other meds options in the process since my current ones obviously did not do the trick as needed. Virginia is not known for quality mental health facilities and/or accessibility which I got to observe first hand.
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I will confess that I have not been in individual therapy to the extent that I should have been largely due to the cost involved. Once I pay the monthly amounts I must pay the ex-wife and other recurring monthly expenses, I simply do not have the funds to cover co-pays/deductibles on meds, therapy and monthly doctor visit, etc. A Richmond based non-profit is going to help me with some of these costs and I will make a dedicated effort to stick with the therapy program and stay on the full dosage of my medications.

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One thing that was noteworthy this morning before the hearing to have me released is that the doctor that I spoke with and who backed my release understood the way gays are treated by the Virginia court system. Through other programs in which the doctor is involved, including Ryan White fund access, she said that the homophobia in the Virginia court system and among judges was horrific. She shook her head but was not surprised when I told her how one judge had stated that being gay was "a choice" and that therefore my divorce was due to my "choice" and, therefore, was all my fault as he proceeded to endeavor to wipe me out financially. I also advised the doctor how the Judicial Review Commission does NOTHING to repremand homophobic judges. She concurred that it is a travesty that needs to be stopped.

Virginia's Judicial Lynching of Gays

No, this is not another post about Bob McDonnell's "lynching" of Judge Verbena Askew during the reappointment hearings back in 2003. Instead it's another look at the judicial lynching of gay spouses that happens likely nearly daily somewhere in Virginia where homophobic judges are allowed to ingnore the Canons of Judicial Conduct at will even thought Canon 3 provides in relevant part as follows:

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CANON 3. A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY.

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Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law. In the performance of these duties, the following standards apply.

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Adjudicative Responsibilities.
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5. A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so. This Section 3B(5) does not preclude proper judicial consideration when race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, or similar factors, are issues in the proceeding.

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6. A judge shall require all persons appearing in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others.
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E. Disqualification.
1. A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: a. The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;

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These dictates have certainly been ignored in my own divorce case and in those of many others gay spouses I have heard from who came out later in life after being married. Here's one individual's comment on his experience:

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There is a lot of hoopla about gay men coming out early, and good for them, I say. Yet there are many many men who married because it was the expected thing, because it was the only thing. And they face hard hard choices.

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I opted to come out. I lost nearly everything and everyone, including wife, kids, family, friends, job, court cases. Faced with similar choices, a friend and former co-worker (who worked for the same religious-based organization I had) drowned himself. The pain is real. folks. Awfully, terribly real.

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Losing everything and suicides - does any of this mean anything to many Virginia judges? Sadly, it means nothing to I suspect a majority of Virginia's judges. Indeed, in my view, judges who punish LGBT litigants for failure to adhere to the judge's personal anti-gay religious views are the norm as opposed to the exception. Something needs to be done and judges who cannot put their anti-gay religious bias aside need to simply be removed from the bench. It's really that simple. And someone needs to see that the Canons of Judicial Conduct are actually enforced for a change.

Panel to Discuss Virginia Courts and Judiciary

The Waynesboro News Virginian has a timely story that needs much more publicity - the Virginia Coalition for Open Government will be holding a meeting that will look at both the judicial selection process, controlled by the General Assembly, and other transparency issues. Virginia has some very good judges, but it also has some very bad ones. Moreover, the enforcement of the Canons of Judicial Conduct are an absolute farce with the blatant violation of the Canons having no effect on the outcome of cases where misconduct occurred. The litigant harmed by prejudice is left with only one recourse: appealing the adverse outcome with added cost and expense involved and no guarantee of the ruling being overturned. The biased or homophobic judge (the majority of gays in divorce cases for instance appear to receive punative treatment for "choosing" to be gay and judges get away with this violation of the Canons regularly) may or may not get their wrist slapped, but most often it seems no adverse consequence to the offending judge is the norm. Here are some story highlights:

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Virginia’s judiciary will be the top topic of an annual conference this fall on opening the working of government to public view. The judicial selection process, controlled by the General Assembly, and a hot-button proposal to make jurors anonymous in criminal cases will be debated by panelists at Access 2009, a conference convened by the Virginia Coalition for Open Government. The judicial topics will occupy two of the four panels on the second day of the conference, scheduled for Oct. 15 and 16 at the Stonewall Jackson Hotel in Staunton.

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A group of citizens, known as the “Pitchfork Rebellion,” have called this year for a public examination of judicial selection. Virginia is one of two states in which the legislature elects judges, but direct election isn’t the primary issue under debate. The group has expressed more concern about the lack of openness in the way judicial candidates are evaluated and chosen, and it wants a public forum on whether to change the selection process and how.

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Whether some changes will be forthcoming will be interesting to watch. Currently, there seems to be few standards for appointment to the bench and judges in the past have been appointed by ultra-conservative members of the General Assembly because of their extreme far right views rather than experience and competence. This needs to end. In addition, the Canons of Judicial Conduct the prohibit biased judges from hearing cases need to start being enforced.

My Own Experience with Discrimination

Employment is not the only area in which gays are subjected to discrimination. As I have noted, Virginia has no anti-discrimination laws that protect LGBT individuals. Therefore, it is surprising that the Canons of Judicial Conduct for the Commonwealth of Virginia contain the following provision:

"Canon 3.5. A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so. . . ."

Like so many things, however, the devil is in the application and enforcement of such provisions. As I have intimated, my divorce process has been a nightmare. While two of the Circuit Court judges that have been involved in my case have clearly followed the directive of Canon 3, the judge presiding over the last and most important hearing did not. Or at least not in my view. Therefore, I have filed a complaint with the Judicial Inquiry and Review Commission against this judge who in my view, allowed his personal views of gays to prejudice the handling and out come of the hearing. My Complaint, among other things, states that:

"Judge **** displayed prejudice and lack of impartiality against Complainant in respect to Complainants sexual orientation in violation of Canon 3 of the Canons of Judicial Conduct for the Commonwealth of Virginia. Judge **** failed to disqualify himself as required by Canon 3 and deprived Complainant of a fair and impartial trial and ruling."

Will I get proper relief? I have no idea and certainly will not be holding by breath. This is, after all Virginia, which has a terrible track record on its treatment of gays and LGBT individuals. The recently enacted "Marriage Amendment" to the Virginia Constitution and previous legislation clearly make gays second class citizens. Some members of the Virginia General Assembly have even remarked that they would be pleased if all gays packed up and left the state. Only time will tell if the Judicial Inquiry and Review Commission will actually enforce Canon 3 in may case. God only knows what fall out will be forthcoming.