Another Virginia Disgrace
The statehouse rejects the judicial nomination of a prosecutor—just because he’s gay.
Photograph by Chris Ijams/University of Richmond.
Shortly after 1 o’clock this morning, the Virginia House of Delegates proved that it can indeed be as mean-spirited and parochial as its detractors at Comedy Central have come to expect. By a slim margin, the House voted to kill the judicial nomination of an openly gay Richmond prosecutor who had bipartisan support going into the vote. A last-minute lobbying effort by the very same social conservatives who pushed unsuccessfully to mandate “medically unnecessary trans-vaginal ultrasounds” this past spring, successfully killed Tracy Thorne-Begland’s bid for a judgeship, based on claims that his 20 years of “activism” on gay rights issues made him unfit to sit on the bench.
Thorne-Begland won only 33 votes of the 51 he needed to win the judgeship. Thirty-one delegates voted against him, and many abstained. He was the only candidate voted down. The only issues on which Thorne-Begland was challenged were his same-sex partner and his gay rights activism. There wasn’t even a claim that he was unfit for any reason other than who he is and what he has fought for.
As was the case with the ultrasound bill, Virginia Gov. Robert F. McDonnell tried to tamp down the bigotry on display in the House by pointing out several hours before the vote that a judicial nominee’s sexual orientation should simply not be an issue in a state that claims not to discriminate. In a statement, his spokesman said, “The Governor believes candidates for judicial vacancies must be considered based solely on their merit, record, aptitude and skill. No other factors should ever be considered and the Governor has long made clear that discrimination on the basis of sexual orientation is not acceptable in state government. ” It fell on deaf ears in a state that apparently believes sexual orientation is in fact the best reason to discriminate.
Republican Del. Robert Marshall, who led the charge against Thorne-Begland, faulted the former Navy officer for speaking out publicly—over 20 years ago—against the “Don’t Ask, Don’t Tell” policy. (Marshall described this as not mere insubordination, but also a waste of taxpayer money. “The Navy spent $1 million training him,” Marshall said. “That’s cheating the country out of the investment in him.”) Marshall further faulted Thorne-Begland for “holding himself out as married,” since gay marriage is illegal in the Commonwealth of Virginia. To Marshall, the fact that Thorne-Begland lives in perpetual conflict with the state Constitution would infect and inform his every judicial act—even though the proposed judgeship would have placed Thorne-Begland on the General District Court, the lowest court in Virginia, where no gay rights issue would ever be likely to come before him. And Thorne-Begland has gone so far as to state in writing that he would recuse himself on any issue in which he had a conflict. But that still wasn’t good enough for the commonwealth. Because in Virginia, the only way to be sure that there is no discrimination from judges is by discriminating.
Peeling away all the circular logic, it would seem that to Marshall and to his allies in the conservative Family Foundation, Thorne-Begland’s principal disqualification is that he has been a “homosexual activist.” (“I don’t even think it’s proper to put his name forward because of his behavior,” said Marshall.) Marshall then went on to clarify that it is OK for elected officials to have served in advocacy roles, pushing for say, unconstitutional personhood legislation deeming that life begins at conception, but advocacy of any sort is not appropriate for future judges, who must apparently be impartial from birth to swearing-in.
What cost Thorne-Begland the nomination is all the discriminatory rules he has challenged. He famously appeared on Nightline challenging DADT in 1992. (He was honorably discharged.) Of course by that yardstick, Justice Thurgood Marshall—dubbed the “suicidal crusader” at the NAACP—was also unfit to serve as a judge. So was Ruth Bader Ginsburg, a passionate career-long advocate for women’s rights. Indeed by that measure almost every lawyer who has advocated passionately for any client or cause or change in existing law—from Janice Rogers Brown to Clarence Thomas to the brilliant Paul Clement—is also unfit for the bench. Apparently, the only advocates we can trust to morph into a neutral umpire upon rising to the bench are straight white men. Anyone else who pledges to become an umpire—as Thorne-Begland did, by the way—must be lying.
Thought experiment: If a decorated former Navy pilot and law-and-order prosecutor who loved his two children and devoted 20 years to the fight to restore school prayer had come up for a vote this morning, would Del. Marshall be questioning his integrity and character? Or pushing for a Supreme Court slot?
It should terrify anyone who cares about the future of the judiciary that advocacy, especially passionate advocacy, and most especially passionate advocacy on civil rights issues with respect to laws that have since been repealed, can be disqualifying. Or at least it can be disqualifying when that zealous advocacy is for a cause about which elected officials have personal religious objections.
Thorne-Begland didn’t challenge DADT because he wanted to embarrass the military. He challenged it because he is braver than the rest of us. When he and his fellow pilots stationed at Virginia Beach were told that in a 20-year career, approximately 25 percent of them would be killed in action, he realized that he would die for his country but he wouldn’t lie for it. Integrity, it seems, is only rewarded when you tell the right kinds of lies. Thorne-Begland has been a well-respected state prosecutor for 12 years and was the unanimous choice of the Democrats and Republicans in the Richmond delegation, who advanced his nomination. He was approved by the courts committees in the House and Senate. The attacks on him began only after that vetting process was complete. His career-long advocacy of gay rights issues crossed some invisible line when, as the Family Foundation breathlessly warned, Thorne-Begland had the temerity to actually be “with President Obama when he signed the repeal of DADT.”
If we keep refusing to seat any judges who stand up to discrimination, Virginia will continue to be a state that discriminates. And if we only want to seat judges willing to lie about who they are and what they believe in, we may as well stop seating judges at all.
Dahlia Lithwick writes about the courts and the law for Slate.