Bob McDonnell would like you to know that he has not, in fact, evolved on gay judges.
“I have long been an advocate of judicial selection based on merit,” he said on WTOP’s “Ask the Governor.”
What about in 2003, host Mark Segraves asked. Back then, while leading a successful effort to unseat a lesbian Circuit Court judge, then-delegate McDonnell questioned whether someone who had engaged in oral or anal sex could serve as a judge because that behavior would violate the state’s anti-sodomy statute.
“It certainly raises some questions about the qualifications to serve as a judge,” he told the Daily Press of Newport News at the time. Segraves quoted that line back to McDonnell.
McDonnell: “No, I think you got that out of context.”
Segraves: “What is context for it?”
McDonnell: “What I said was someone, at the time, actually there were certain acts that would be a crime —”
Segraves: “It’s 2003. Anti-sodomy laws.”
McDonnell: “Right. If someone had [committed] a crime, honestly that would call into question their ability to be a judge. But I was very clear in other statements of the time that those factors should not be an element of the decision making.”
Judge Verbena M. Askew was not reappointed for a second, eight-year term. But McDonnell said that decision — one supported by leading Democrats, he noted — had nothing to do with her homosexuality. It was because she’d been accused of sexually harassing a female court employee and had not disclosed the woman’s lawsuit against her, as required, on her judicial application, McDonnell said. The woman, a Hampton city employee who also alleged that her supervisor and co-workers had retaliated against her for making the complaint, received a $64,000 settlement from the city.
“There were a lot of things, Mark, that led to that decision,” McDonnell said. “This [her homosexuality] was not a factor. And so I’m disappointed that people still would say that.”
So what if there had been no sexual harassment allegation to cast doubt on the judge’s temperament? No undisclosed lawsuit to raise questions about her truthfulness? What if she’d simply been a gay judge having gay sex at a time when that was illegal in Virginia? Would that have been okay?
“Mark, that’s 10 years ago,” McDonnell said. “When somebody violates the law, then it’s going to make it hard for them to be a judge, don’t you agree? ... But that’s not what happened in that case.”
The U.S. Supreme Court struck down anti-sodomy laws later in 2003. Segraves asked if the now-invalidated law could still be used to disqualify gay judicial nominees — at least those who were sexually active in Virginia before the Supreme Court ruling. The question appeared to catch McDonnell off guard.
Segraves: “If a judge came before the General Assembly for confirmation now who is openly gay, admitted was openly gay in 2002, and having sexual relationships, and anal sex, which was against the law back then, would that disqualify them from serving as a judge now?”
McDonnell: “What I, the law at the time, and so, I —”
Once he’d gathered his thoughts, the governor went on to say that he would not object to a gay nominee “if they are otherwise qualified to be on the bench based on merit, ability, judicial temperament and ability to follow the law regardless of what their political beliefs are.”