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Scrutiny Spreads to '03 McDonnell Remarks
'Homosexual Conduct' Comments 'Irrelevant' to Campaign, He Says

By Amy Gardner
Washington Post Staff Writer
Wednesday, September 9, 2009

In January 2003, then-Del. Robert F. McDonnell helped gavel in one of the most extraordinary judicial reappointment hearings in Virginia history: a seven-hour, trial-like affair that led to questions about whether the future Republican gubernatorial candidate thought gays were fit to serve on the bench.

As chairman of the House Courts of Justice Committee, McDonnell sat at the head of the proceedings, with his Senate counterpart next to him and committee members on both sides. Facing them was Verbena M. Askew of Newport News, the state's first black female Circuit Court judge, whose reappointment was in jeopardy because of allegations that she had sexually harassed a female colleague.

Amid accusations of racism and homophobia, state lawmakers grilled Askew and several witnesses for hours, focusing in large part on her failure to disclose the harassment case. Some members also raised questions about her actions from the bench. A majority, including McDonnell, voted against her reappointment.

In comments before the hearing, McDonnell indicated that Askew's sexual conduct was relevant, telling one newspaper that "certain homosexual conduct" could disqualify a person from being a judge because it violates the state's crimes against nature law. The words were widely published at the time, and his remarks contributed to a lasting view that sexual orientation was at least one reason for Askew's ouster.

McDonnell said in an interview last week that the episode has nothing to do with his campaign for governor.

"It is 100 percent irrelevant in this race," he said. "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."

McDonnell's role in the hearing has attracted renewed scrutiny after the publication last week of a 1989 graduate school thesis in which the 14-year lawmaker and former attorney general had criticized working mothers and homosexuals and urged the promotion of traditional values through government. In one passage, McDonnell wrote: "Man's basic nature is inclined towards evil, and when the exercise of liberty takes the shape of pornography, drug abuse, or homosexuality, the government must restrain, punish, and deter."

McDonnell has dismissed his thesis as a "20-year-old document" and an "academic exercise" with no bearing on a political campaign that ought to be focused on jobs, road improvements and public schools. He said some of his views have changed since he wrote the thesis while earning public policy and law degrees at what is now Regent University in Virginia Beach. And he emphasized that he has never viewed sexual orientation as a relevant factor in hiring decisions or fitness for public office.

McDonnell said he joined the majority in voting Askew off the bench for several reasons: The City of Hampton, where she had established a drug court and where her accuser worked, had settled the harassment claim for $64,000. A Virginia Employment Commission hearing officer found that the accuser, Brenda Collins, was forced to resign her job in part because of retaliation. And in surveys, local lawyers had expressed dissatisfaction with Askew's courtroom performance.

McDonnell was credited by Republicans and Democrats in the Virginia General Assembly at the time for making sure witnesses supporting Askew were present at the hearing.

He also became known for telling the Daily Press of Newport News that certain homosexual activities could disqualify a person from the bench. "It certainly raises some questions about the qualifications to serve as a judge," he said.

"There is certain homosexual conduct that is in violation of the law," McDonnell added. "I'm not telling you I would disqualify a judge per se if he said he was gay. I'm talking about their actions."

McDonnell said through a spokesman last week that the quotes are not accurate, and the candidate repeated that assertion Friday.

At the time, McDonnell did not deny the comments, which were reprinted by several other papers, but he told the Virginian-Pilot that they were "inartful." He added, "What I told [the reporter] is if there was evidence, proven evidence like a criminal conviction, of a violation of the law, any criminal law, those things would need to be taken into consideration to determine the fitness for reappointment."

McDonnell also told the Virginian-Pilot: "Homosexuality is not an issue with regard to the qualifications of a judge. I imagine we have gay judges on the bench now. That's not a material inquiry."

Terry Scanlon, the Daily Press reporter who interviewed McDonnell, and Ernie Gates, the newspaper's editor, both said last week that McDonnell never complained about the quotation's accuracy.

Scanlon, who now lives in Colorado and is no longer a reporter, also remembers asking McDonnell whether he had ever violated the crimes against nature statute himself -- a fair question, he thought, because McDonnell had raised the legal point. The statute, among other things, prohibits oral or anal sexual contact, regardless of the sex of the participants. McDonnell's response, Scanlon reported, was: "Not that I can recall."

In the subsequent interview with the Virginian-Pilot, McDonnell dismissed his answer as a "flippant" response to a "shocking" and "unfair" question. In political circles, it was a widely disseminated remark, and it came to symbolize, some said, McDonnell's role in the Askew affair.

"Bob was the only one that I remember who at the time described his position on the case in relation to her sexual orientation," said Gov. Timothy M. Kaine (D), who was then the state's lieutenant governor and president of the Senate.

Kaine, who is also chairman of the Democratic National Committee and a supporter of McDonnell's Democratic opponent, state Sen. R. Creigh Deeds of Bath, noted that the Askew affair is not McDonnell's only intervention regarding sexual orientation. In addition to pushing a state constitutional amendment requiring that marriage can occur only between a man and a woman, McDonnell intervened to oppose Kaine's first act as governor in 2006: to expand the state's nondiscrimination policy to include sexual orientation.

McDonnell argued at the time that his concern was strictly a legal one -- that Kaine's action was one for the legislature, not the governor, and thus violated the state constitution's separation of powers provision.

Deeds was not a member of the courts committee, but he said last week that he remembers hearing extensively of the Askew hearing. "It seems to me kind of odd that, six years after the fact, he's getting around to saying he was misquoted," Deeds said of McDonnell.

In an interview last week, Askew denied being gay, as she always has. She also denied harassing Collins and noted that she was not a party to the city's settlement. She also said the state bar dismissed a complaint about her failure to disclose the harassment settlement to lawmakers. She said she believes that McDonnell chose to become involved for political reasons.

"This was a local issue," said Askew, now in private law practice. "He shouldn't have been in it. Nobody asked him to get in that process. He did that himself, and he did it to promote his social issues."

Two Republican colleagues of McDonnell's in the legislature, Sens. Kenneth W. Stolle of Virginia Beach and Thomas K. Norment Jr. of James City County, confirmed that McDonnell was eager for his committee to participate in the hearing despite their view that the Senate could conduct the proceeding without House involvement. Norment represented part of Newport News and, as a lawyer, had fielded numerous complaints about Askew's judicial conduct, he said. Stolle was chairman of the Senate Courts Committee.

"I cautioned him," Stolle recalled. "I said, 'Bob, you know you want to run for attorney general. I assure you that nothing good is going to come from this.' . . . And Bob came back and said several of his [colleagues] had contacted him, and wanted to know what was going on, and wanted to know why they hadn't taken part."

Staff writer Rosalind S. Helderman contributed to this report.

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