Earlier this month, before the Virginia General Assembly voted to reject Tracy Thorne-Begland—see post HERE-- a gay judicial nominee, Bob McDonnell, the GOP governor said homosexuality should not disqualify someone from serving as a judge. And he said that's always been his position.
“I have long been an advocate of judicial selection based on merit,” McDonnell said on WTOP’s “Ask the Governor.”
Except that's not exactly true, and WTOP host, Mark Seagraves wanted to know about it.
He recalled for the governor, who, like most Republicans, has difficulty remembering which bigoted remarks they uttered and when they uttered them, the time back in 2003 when McDonnell himself lead a successful effort to unseat a lesbian Circuit Court judge. See, then-delegate McDonnell actually 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.
And, when asked about that today, McDonnell said to Seagraves, “No, I think you got that out of context.”
And Seagraves asked, "What is context for it?”
"Bob McDonnell, stammered, as he tried to recall his open bigotry from 2003 and how to mesh it with his closeted bigotry of 2012, and said, “What I said was someone, at the time, actually there were certain acts that would be a crime —”
“It’s 2003. Anti-sodomy laws,” said Mark Seagraves.
McDonnell responded, “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.”
Now, digging back into history, that lesbian, Judge Verbena Askew was not reappointed for a second, eight-year term, though McDonnell says it had nothing to do with her orientation. It was due to the fact that Askew had 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.
“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.”
But, Seagraves wanted to know, what if there had been no sexual harassment allegation? What if there had been 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 and so Seagraves asked if the now-invalidated law might still be used to disqualify those gay judicial nominees who were sexually active in Virginia before the Supreme Court ruling because they would, in fact, be criminals.
The question appeared to catch McDonnell off guard: “What I, the law at the time, and so, I —”
Once he was able to compose himself, and fighting the pain of his own past words biting him on the ass, McDonnell said 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.”
But that's today. That's not the Bob McDonnell of 2003, no matter how much he tries to spin it. And it certainly wasn't Bob McDonnell who stepped in on behalf of Throne-Begland and asked the Virginia House to keep his sexual orientation out of their discussions.
So, McDonnell hasn't really changed, has he? He's just keeping his bigotry a little closer to the vest these days.