Vote against openly gay judicial nominee another black eye for Virginia

Early this morning – around 1:30 AM – in a vote with almost a third of the members absent, the House of Delegates rejected the judicial nomination of Tracy Thorne-Begland to serve as a judge on the General District Court in the 13th judicial district in Richmond. Thorne-Begland, who is openly gay, is a Deputy Commonwealth’s Attorney in the state capital.

Thorne-Begland, a veteran prosecutor and Navy veteran, lost the vote largely because of his record as a gay activist and the charge that his advocacy against the military’s Don’t Ask, Don’t Tell policy – which led to his honorable discharge from the Navy – made him unfit to serve. The charge against Thorne-Begland was led by Loudoun Delegate and U.S. Senate candidate Bob Marshall.

Democrats have been quick to accuse Republicans of voting against Thorne-Begland because he’s openly gay and has been vocal about his rights.

I can’t blame them, because that’s basically what happened. Bob Marshall characterized Thorne-Behland as a “homosexual activist” and cited his history of “aggressive” activism on behalf of the gay agenda.

All of that is clearly laid out in Marshall’s press release, which you can read here. But that’s not where Marshall left off – not only is Thorne-Begland a homosexual activist, he’s also a potential judicial activist and oath breaker. Marshall goes on to impugn Thorne-Begland’s integrity, questioning whether he could swear an oath to uphold the Virginia Constitution – a document that bars gay marriage – because of past advocacy against the gay marriage ban.

The vote last night was wrong. We let irrelevant issues cloud the real question – whether Thorne-Begland was qualified and would be competent in doing the job of a General District Court judge – with conjecture and character-assassination. Those are the only questions that matter, and we ignored them by bringing his past activism into play, especially when it would have little impact on the job.

The fact that Thorne-Begland was discharged from the Navy for being gay is irrelevant.  He believed that his rights were being trampled upon and spoke up, going to court to defend them. There is nothing wrong with that.  This is the exact same behavior we Republicans praised when Dick Heller and the other second amendment activists filed suit to overturn DC’s unconstitutional gun laws.  We praise activism in defense of rights, especially where someone gives up so much for the fight.  In the Heller case, Dick Heller didn’t have to get arrested or lose his job – he simply had to apply for a permit and be denied.  Here, Thorne-Begland gave up his Navy career to fight for something he believed in.  How can we condemn that, especially when the Navy didn’t?  He wasn’t brought up on charges.  He wasn’t court-martialed. He was given an honorable discharge and he left the service. If they Navy didn’t punish him, we have no need to.

The argument that Marshall makes that questions Thorne-Begland’s integrity and claims he couldn’t take the oath to support the Virginia Constitution is, quite frankly, disgusting.  Not only has Thorne-Begland already taken that oath as an attorney and in his official capacity as a deputy Commonwealth’s Attorney, there is nothing in his background to indicate he has ever violated it.  Advocacy against laws one disagrees with isn’t violating an oath – it’s something inherently American and something we Republicans have long valued.

But if Marshall thinks that’s a fair argument, why don’t we flip this one around? How can Bob Marshall be a Delegate in Virginia and a candidate for U.S. Senate? He’s taken an oath to support the U.S. Constitution – a document that protects abortion rights, according to the Supreme Court.  Wouldn’t his past record as a pro-life activist raise questions about whether he could support a document that protects abortion rights?  Wouldn’t that record disqualify him to sit in a body that advises and consents on Supreme Court nominations when he’s argued for decades that the Constitution should be amended to ban abortion?

Apparently, at least in Marshall’s view, you can’t support a document while wanting to see it changed.  That flies in the face of centuries of American jurisprudence.

The argument that a homosexual rights activist might become a judicial activist would be stronger if this wasn’t a nomination to the General District Court.  The GDC in Virginia is a court not-of-record in Virginia, where there are no jury trials, generally no transcripts, and with an amount-in-controversy limit of $15,000.  Most major cases aren’t heard at that level, and all appeals taken from the GDC go to the Circuit Court de novo – meaning the case is heard as if it were never heard before.  There is little chance that Thorne-Begland could be a judicial activist from that bench, even if he wanted to.

Besides, we all know that judicial activism is the claim both sides make against judges who decide cases the wrong way. We call Sotomayor a judicial activist, the left calls Scalia one.

The saving grace to this entire argument is that the vote wasn’t unanimously against Thorne-Begland, whose sponsors included Delegate Manoli Loupassi, a Republican from Chesterfield County. While 31 Republicans voted against, the majority of the Republican caucus either voted in his favor, abstained, or had already headed for home.

Thorne-Begland deserves a real vote, with the entire House present, and with enough time to make the case that he will be an impartial jurist.  The arguments against him revolve almost completely on his sexual orientation and that’s wrong.  We are Republicans – we should be judging people by their character, not by superficial things like race, gender or sexual orientation.  We don’t play identity politics and the best man or woman should always win, regardless of what they look like or who they date.

Nobody has made the argument that Thorne-Begland isn’t qualified or wouldn’t be a competent judge.  He’s qualified and competent.  He has earned the job.

This vote will further tarnish the Commonwealth’s reputation and will feed into the national debate over gay rights that has somehow overshadowed more fundamental issues like jobs and the economy in the presidential debate.

When are we ever going to learn?