First Out LGBTQ Woman Confirmed to Federal Appeals Court; Highly Qualified Justice Breezes By Bizarre Republican Queries

Highly Qualified Justice Breezes By Bizarre Republican Queries

By Lisa Keen, Keen News Service

The U.S. Senate tonight (November 1) confirmed the appointment of the first openly LGBT woman for a seat on a federal appeals court circuit bench.

Monday's roll call vote, 51 to 45, came with no debate on the Senate floor, but followed an unusually crass interrogation of the nominee, Beth Robinson, on paper. After challenging Robinson in the publicly broadcast confirmation hearing last month, Republicans posed a sometimes bizarre series of questions through behind-the-scenes Senate questionaires. Among other things, Republicans asked Robinson: “How many biological sexes do you believe there are?” and “Do you think it is appropriate for an individual to threaten a six-year-old girl with a box cutter by telling her that he would kill her in her sleep?” One senator named two dozen landmark U.S. Supreme Court decisions —from Marbury v. Madison in 1803 (which established the court's authority to review the constitutionality of laws) to Brown v. Board (ending segregation), Loving v. Virginia (ending bans on interracial marriage), and nearly every pro-LGBT decision issued since 1997 and asked whether each was “correctly decided.”

Republican senators used the televised confirmation hearing September 14 to assert claims that Robinson showed “marked hostility toward religious liberty,” ask whether she “ever represented a terrorist at Guantanamo Bay,” and insinuate that she would be attempting to “drive broader social change” on the court. 

Beth Robinson opening remarks in hearing for confirmation to Federal Appeals Court.

Nominee Beth Robinson, a justice of the Vermont Supreme Court, answered each question and, the Senate confirmed her appointment to the Second Circuit U.S. Court of Appeals. The vote makes Robinson the first openly LGBT woman to be confirmed to a federal circuit appeals court seat.

President Biden appointed Robinson in August to the Second Circuit, which covers Vermont, New York, and Connecticut.

Robinson has been serving on the Vermont Supreme Court since 2012. Prior to that, she was involved in several prominent legal challenges seeking equal marriage rights for same-sex couples. She played a key role in the litigation that won the nation's first civil union designation, in Vermont in 2000. She later served as chief legal counsel to then Vermont Governor Pete Shumlin, who nominated her to Vermont's highest bench.

During the confirmation hearing, Republicans on the Senate Judiciary Committee lined up against Robinson, saying that, early in her career as an attorney, she had demonstrated hostility toward religious liberty. Senator Ted Cruz (R-Texas) accused Robinson of “marked hostility toward religious liberty.” His evidence was her work as a private attorney representing a client who sued a Vermont printer for refusing to print flyers for the client's Catholic pro-choice group. Cruz said Robinson sought to “force” the printer to print “membership cards for a pro-abortion group.”

Robinson pointed out that the case to which he was referring was one in which she was representing a client who was herself suing over discrimination based on her religion.

 “My client was a Catholic,” replied Robinson. “She was [at the printer's] to get flyers for Catholics for Choice printed. She was deeply offended by the suggestion [by the printer] that she wasn't a true Catholic and that was the reason why the printer wouldn't print [the client's] materials.” The case settled before any court ruled on the merits of the issue, recalled Robinson.

In his written questionnaire to Robinson, Cruz asked, “How many biological sexes do you believe there are?” Robinson declined to respond, noting, as most nominees nowadays to, that the issue was likely to come before her in court.

Beth Robinson response to Senator Durbin on transition from advocate to judge in hearing for confirmation to Federal Appeals Court.

Senator Josh Hawley (R-Missouri) also attacked Robinson over the printer case, during the public hearing. On his written questionnaire to Robinson, Hawley also asked “How many sexes and genders do you believe there are?” and “Do you think it is appropriate for an individual to threaten a six-year-old girl with a box cutter by telling her that he would kill her in her sleep?” Robinson, of course, said no and explained her dissent in a case in which the court had to decide whether a box cutter constituted a “deadly weapon” in a particular circumstance.

Cruz and Hawley have been criticized harshly in recent months for fanning the flames of insurrection around the January 6 attack on Congress. Their harsh questioning of Robinson—and other Biden nominees—could have been motivated in part by an effort to deflect attention away from their culpability in attempting to interfere with the certification of the 2020 presidential vote. It might also be a symptom of the ever-increasing partisan battles in Congress, attempting to derail the other party's judicial nominee by whatever means necessary.

Robinson, 56, graduated from Dartmouth College and the University of Chicago Law School before beginning private practice in Middlebury and Burlington, Vermont, with the law firm of Langrock Sperry & Wool, focusing on family and employment law. Gay & Lesbian Advocates & Defenders (GLAD) presented her with its 2009 Spirit of Justice Award for her work in promoting passage of Vermont's marriage equality law in 2009. She is married to medical doctor Kim Boyman.

Beth Robinson responds to Ted Cruz's questions at hearing on her confirmation to Federal Appeals Court.

Keen News Service

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Veteran of The Battles to Protect LGBTQ Relationships, Highly Qualified VT Supreme Court Justice Breaks Another Glass Ceiling for Representationm Confirmed to federal appeals court.

The Vermont judge helped lay the groundwork for marriage equality in 1999 when she argued for legal protections for same-sex couples.

Originally published by The 19th

Beth Robinson, a Vermont Supreme Court judge who served as co-counsel in the country's first case to establish that LGBTQ+ couples deserve the same legal protections afforded to straight married couples, was confirmed by a 51-45 Senate vote on Monday as President Joe Biden's nominee to the U.S. Court of Appeals for the 2nd Circuit. 

Robinson is the first out LGBTQ+ woman to serve on a federal appeals court, following the appointment of Judge Todd Michael Hughes in 2013 — the first LGBTQ+ person to hold such a position. Experts say that her confirmation is a historic moment that should be celebrated, but it also signals that much more LGBTQ+ representation is needed in the country's federal judiciary.

“There are 870 federal judgeships, but only 12 — now 13 — are held by openly gay or lesbian judges. Four federal circuits do not have a single openly LGBT judge,” Sharon McGowan, legal director at Lambda Legal, said in a statement following Robinson's confirmation vote.

An openly bisexual or transgender person has never been nominated to the federal judiciary, Ezra Ishmael Young, a civil rights attorney and assistant professor at Cornell Law, and Karen Loewy, senior counsel at Lambda Legal, told The 19th. 

“The representation of LGBTQ people on the federal judiciary is miniscule,” Loewy said. Out LGBTQ+ judges currently make up just over 1 percent of the federal judiciary, she said, citing internal data from the advocacy group. 

LGBTQ+ judicial elected officials in the U.S. largely serve on county and district courts, with the highest concentrations in California, Texas, and Illinois, according to the current count from the Victory Institute, which works to elect LGBTQ+ officials. 

“We are stunningly underrepresented” in judgeships across the U.S., said Annise Parker, president and CEO of the LGBTQ Victory Fund, over text. As the former mayor of Houston, she appointed Phyllis Frye, the first openly trans judge in the United States, in 2010. 

That underrepresentation matters especially in courts where judges need to understand a broad range of lived experiences, Loewy said. 

Robinson's legacy arguing in the landmark 1999 Baker v. Vermont case — and her extensive background lobbying for LGBTQ+ rights as a lesbian born in Karachi, Pakistan — is an important step toward the country's judicial system actually reflecting the communities it serves, experts say. 

Having an out lesbian serving on a federal appeals court should also “be the norm by now,” Young said. “She just broke a major glass ceiling here. It's the fact that such a ceiling had to be broken in 2021 that we should be appalled by.” 

Robinson is aware of the importance her past work holds, and empathetic to the emotional toll that activism can take, after chairing the Vermont Freedom to Marry Task Force off and on for 15 years.

“For a lot of people in the queer community in Vermont, 2000 was an incredibly intense time, an incredibly difficult time … that's left its marks on people for some time thereafter,” Robinson said, reflecting on the year that ruling took effect, in a June 2020 interview with the Pride Center of Vermont. 

In that interview, Robinson said that during the three-year window that culminated with the country's first recognition that LGBTQ+ relationships deserve legal protections, queer people in Vermont “found themselves called to speak up,” whether they liked it or not. 

“That debate really caused people all around the state, in our community, people who were living quietly, they didn't think of themselves as activists … suddenly they found themselves called to speak up. And to speak honestly about the truth of their lives,” she said. 

After arguing that case, which Robinson described in that June 2020 interview as one of the first conversations that brought marriage equality and civil unions into the broader body politic, she went on to work as counsel to the Vermont governor in 2011 and joined the Vermont Supreme Court later that year. 

As an associate and then partner at Langrock Sperry & Wool, the private practice that Robinson worked at while arguing Baker v. Vermont, her areas of focus included family law, employment law, employment discrimination, among other areas. 

Alongside Robinson's nomination by the Biden administration in August, the president also nominated Charlotte Sweeny to serve as a United States District Judge for the District of Colorado — marking another first for LGBTQ+ representation. 

If confirmed, Sweeny — who is currently in private practice — would be the first out LGBTQ+ federal judge in the state, and one of the few LGBTQ+ women to serve as a federal district court judge in the country. The Senate Judiciary committee held her confirmation hearing in late October. 

Parker, while reflecting on how LGBTQ+ and trans judicial representation has improved since she appointed Frye in 2010, said that the need for more LGBTQ+ officials has not gone away. 

“We keep reaching milestones. The problem with milestone appointments is, when you see a milestone, it means you haven't reached the end of the turn. So, we need more … to even move the needle in the federal benches,” Parker said. 

Disclosure: Annise Parker has been a financial supporter of The 19th.