First Out Woman Appointed to Federal Appeals Court

Beth Robinson was confirmed after hostile questioning from conservative senators.

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The U.S. Senate on November 1 confirmed the appointment of the first out LGBTQ woman for a seat on a federal appeals circuit bench.

The roll-call vote, 51 to 45, which came with no debate on the Senate floor, followed an unusually crass interrogation of Beth Robinson, the out lesbian nominee, by way of a bizarre series of written questions on behind-the-scenes Senate questionnaires.

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 of Education (ending school segregation), Loving v. Virginia (ending state bans on interracial marriage), and nearly every pro-LGBTQ decision issued since 1997—and asked whether each was “correctly decided.”

Republican senators also used a televised confirmation hearing on September 14 to assert claims that Robinson showed “marked hostility toward religious liberty.” They also asked whether she had “ever represented a terrorist at Guantanamo Bay,” and insinuated that she would be attempting to “drive broader social change” on the court. Robinson, a justice on the Vermont Supreme Court, answered each question and the Senate confirmed her appointment to the U.S. Court of Appeals for the Second Circuit.

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 by 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 in the case he was referring to, 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] to get flyers for Catholics for Choice printed. She was deeply offended by [that printer’s] suggestion that she wasn’t a true Catholic, and that was the reason why the printer wouldn’t print [her] materials.” The case settled before any court ruled on the merits of the issue, Robinson added.

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 do, that the issue was likely to come before her in 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 that include derailing the other party’s judicial nominees 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 the passage of Vermont’s marriage equality law in 2009. She is married to medical doctor Kim Boyman.