WASHINGTON (CN) — It’s been more than a month since the Senate Judiciary Committee, in a rare setback for its Democratic majority, failed to report White House judicial nominee Sarah Netburn to the full chamber.
Netburn’s appointment to the Southern District of New York made waves in July as Georgia Senator Jon Ossoff — who cast the deciding vote to block her nomination from advancing — became the first Democrat to vote against one of President Joe Biden’s federal court picks.
The surprise dissent from Ossoff came after Republicans on the Judiciary Committee fumed that Netburn, as a magistrate judge in the Southern District, had recommended in 2022 that an incarcerated transgender woman be moved from a men’s prison to a woman’s prison. The nominee argued at the time that refusing to transfer the prisoner, a registered sex offender serving a sentence for distributing child pornography, would violate her Eighth Amendment rights.
Ossoff, long an advocate for increasing oversight on federal prisons, later said that he had concerns about the “wisdom” of that decision.
Netburn is one of the only Biden nominees to falter in the Democrat-led Judiciary Committee — but she’s far from the only one to face scrutiny from Republicans over her record on LGBTQ issues. And experts worry this trend could deter efforts to diversify the federal bench, especially at a time when the number of new LGBTQ nominees is already dwindling.
Republican lawmakers who oppose the Biden administration’s judicial agenda appear to have identified LGBTQ issues as a “winning strategy” for needling the White House’s nominees, said Sasha Buchert, director of the Nonbinary and Trans Rights Project at civil rights organization Lambda Legal.
“Unfortunately, they’ve pulled over some people like Senator Ossoff, which is harmful for creating a fair and impartial judiciary," she said in an interview.
And the GOP microscope on gender identity and LGBTQ issues could have negative consequences on the number of LGBTQ-identifying nominees selected by the White House, Buchert suggested.
“The intended effect is clearly to have a chilling effect on the amount of LGBTQ judicial nominees, and we’ve seen a drop-off," she said.
According to a May report published by Lambda Legal, which advocates for greater LGBTQ representation in the federal judiciary, the Biden administration has nominated just one openly gay federal judge and two openly lesbian judges since April 2023 — fewer LGBTQ nominees than in years prior. The White House has yet to select an openly transgender or nonbinary judge for the federal bench, the report said.
It's difficult to say whether Republican scrutiny of current nominees and their stances on LGBTQ issues factors into who the White House taps to fill federal court vacancies, Buchert said. But she posited that GOP lawmakers have tried to make the issue “toxic,” not just in an effort to defeat nominees with LGBTQ backgrounds but to halt the Biden administration’s judicial agenda altogether.
Susan Burgess, professor emerita of political science at Ohio University, agreed, adding that the White House may be more cautious about nominating candidates who might be perceived as having a background in advocacy.
“In some ways, that’s not new,” she said, noting that judicial nominees are almost always subject to close scrutiny and vetting. “But I think the main point is that, in the context of extreme polarization, those kinds of cautions or hesitancies become more pointed — people can get dinged for things that in less polarized contexts may not be as much at issue.”
Regardless of the reason, though, fewer LGBTQ people in the federal judiciary means less equitable representation for Americans of all stripes seeking justice, Buchert said.
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