Virginia Gov. Bob McDonnell (R), a shortlist contender to be Mitt Romney’s vice president who is beloved among conservatives, appears to be the latest prominent politician to “evolve” on gay-rights issues. In McDonnell’s case, the shift involves his previous stance that a gay judicial nominee might be disqualified from the bench due to a belief that discrimination against otherwise qualified LGBT candidates is improper.
McDonnell’s office insists nothing has changed.
McDonnell spoke out Monday, ahead of a vote in the GOP-led Virginia legislature in which social conservatives denied an openly gay nominee a slot on the state bench.
“All I can tell you is what I’ve always said about judges, and that is that these ought to be merit-based selections solely based on a person’s skill, ability, fairness, judicial temperament,” McDonnell said of the battle over Richmond prosecutor Tracy Thorne-Begland’s nomination to the bench by a Republican lawmaker, according to the Richmond Times-Dispatch. A former Navy pilot, Thorne-Begland appeared on “Nightline” while on active duty in 1992 to condemn the ban on openly gay service members. He would have been the first openly gay judge of the Virginia bench, and social conservatives lobbied hard to reject him, despite broad support from both sides of the aisle. Thorne-Begland had been cleared by committees in both houses of the legislature.
McDonnell “told reporters that judicial qualifications, not sexual orientation, should determine who serves in Virginia’s judiciary,” according to the Times-Dispatch.
“None of those things should be factors in whether or not you put somebody on the bench,” he said. “It’s only their ability to practice law and mete out fair decisions.”
That’s quite a bit different than what McDonnell said about gay judges when he was a member of the legislature. In 2003, McDonnell told the Newport Daily Press that gay sexual conduct could a be a violation of state law, and therefore, a potential disqualification for judicial nominees:
McDonnell, a Virginia Beach Republican who is chairman of the state legislature’s House Courts of Justice Committee, also said that while such behavior alone would not disqualify someone from being a judge, “It certainly raises some questions about the qualifications to serve as a judge.”
Virginia’s “crimes against nature” law bans all oral and anal sex regardless of the gender of the parties involved. It has been criticized as an antiquated statute that intrudes into private lives and that is likely to be used only against gay people. Repeated attempts to repeal the law have failed.
“There is certain homosexual conduct that is in violation of the law,” McDonnell said at the time. “I’m not telling you I would disqualify a judge per se if he said he was gay. I’m talking about their actions.”
The issue came up while McDonnell was leading a legislative panel examining the reappointment of Virginia’s first black female judge, who was accused of sexual harassment. The racially charged case eventually led to a bipartisan vote to reject a new judicial term for the judge, leading to charges of racial bias from Democrats in the legislature.
In 2003, the comments drew fire from LGBT rights activists and legal scholars. In 2009, they became a part of McDonnell’s gubernatorial campaign, much of which was focused on his past as an evangelical social conservative. McDonnell didn’t repeat the claim that “homosexual conduct” could be a disqualifier for judges during the campaign.
“It is 100 percent irrelevant in this race,” McDonnell told the Washington Post in 2009. “What’s relevant in this race is what the records of the candidates are on issues that the voters care about and, number two, who’s got the best ideas to be able to create jobs and build infrastructure and build a better Virginia. That’s what’s relevant.”
In the wake of President Obama’s public backing of marriage equality, some Republicans have avoided detailing their position on other kinds of LGBT discrimination even as they oppose same-sex marriage. Romney, who opposes both legalized marriage for same-sex couples as well as civil unions — has said repeatedly that he is against discriminating against LGBT citizens, and has pointed to gay members of his administration while he was governor of Massachusetts.
“I don’t discriminate,” Romney said of his gubernatorial tenure in a January primary debate. “I made it very clear that, in my view, we should not discriminate in hiring policies, in legal policies.”
McDonnell, who was an early and vocal backer of Romney and recently campaigned with him across Virginia, appears to share that same view. His office says nothing has changed and says McDonnell has been consistent about LGBT discrimination, and pointed to quotes from the McDonnell’s tenure as state attorney general and his first executive order as governor, where he pledged not to discriminate on the basis of sexual orientation in hiring.
“The governor’s position is clear. He believes that the only factors that should ever be considered when selecting a judge are the candidate’s record, skill and ability,” Tucker Martin, McDonnell’s spokesperson, told TPM. “The choice should be strictly merit-based. Sexual orientation should never be a consideration in a judicial appointment. He has always been clear in that position.”