President Trump’s attorney general nominee William Barr faced tough questioning from Senators during yesterday’s confirmation hearing, including on his anti-LGBTQ history.
On Haitian Refugees, And Excluding HIV Positive Individuals
Sen. Richard Blumenthal grilled Barr about his time as Attorney General under George H.W. Bush, and the handling of Haitian asylum seekers in the early 1990s, many of whom were HIV positive. He pressed the nominee on the decision to keep the refugees in Guantanamo Bay, where a federal judge described the living conditions, which included being “surrounded by razor barbed wire” and compelled to “tie plastic garbage bags to the sides of the building to keep the rain out.”
Blumenthal noted Barr had defended the decision to house the Haitians in Guantanamo in the early 2000s, and asked if he had any regrets now.
Barr thanked Blumenthal for giving him the “opportunity to address this,” and said that up until then “administrations had forcibly returned Haitians, asylum seekers and so forth, without any kind of process.”
He added that both before and after the Bush administration, admission rates were lower than the 30% he estimated they let in, saying it was “minuscule” prior to that and went down to 5% under the Clinton administration.
“Meanwhile, HIV was an exclusion,” he added.
“You could not admit anyone with HIV—and this was adopted by the Senate, and then in the first year of the Clinton administration, the Clinton administration signed a bill that kept it as an exclusion,” Barr said.
“You cannot admit someone with HIV, except by case-by-case waiver, based on extreme circumstance. So what we did with the HIV people, is we first screened them for asylum, because if they couldn’t claim asylum then they wouldn’t be admitted, and then we started a case-by-case review. I started admitting them on a case-by-case basis, where cases could be made that there was a particular reason for doing it, like pregnant women, and people who had not yet developed full-blown.”
“I think there was a slowing down of the processing, because people felt that the Clinton administration, which at the time was attacking these policies, was going to be more liberal,” he continued. “And so people thought, Well, why should we go through this process with Bush when Clinton is right around the corner? Clinton came in, adopted our policies, and defended them in court, continued forced repatriation, continued the exclusion of HIV (positive people).”
“Which didn’t necessarily make it right,” Blumenthal shot back.
“Well, it was right under the law,” Barr replied.
“It was a mass exodus situation, and we did the best we could,” he concluded.
On Calling ’The Homosexual Movement’ an Erosion of Morality in America & LGBTQ Student Protections
Sen. Cory Booker (pictured below) asked Barr about an essay he wrote in 1995, titled, “Legal Issues in a New Political Order,” in which he went after the LGBTQ rights movement.
“You wrote an article where you described how the law was being used, and this is your opinion—and maybe it has changed, because this was over a decade ago—where you said, ’The breakdown of traditional morality by putting on an equal plane conduct that was previously considered immoral’—and you mention ’the homosexual movement,’ is what you described it as—as ’one of the movements that is causing the erosion of morality in America,'” Booker said.
“I can only gather, from the article I’m quoting, unless your opinions have changed, that you believe that being gay, or bisexual, lesbian, or transgender is immoral. Have your views changed on that?”
Barr said his views had not changed since then, before expounding.
“I’ll tell you my views,” he said. “If I had been voting on it at the time—my view is that under the law, under the Constitution, as I originally conceived it, before it was decided by the Supreme Court, marriage was to be regulated by the states.”
When asked directly if he thought homosexuality was immoral, Barr deflected.
“Well, what I was getting at is, I think that there has to be, in a pluralistic society like ours, there has to be a live and let live attitude, and mutual tolerance, which has to be a two-way street. And my concern, and the rest of the article addresses this, is, I am perfectly fine with the law as it is, for example with gay marriage, perfectly fine. But, I want accommodation to religion.”
“I guess that’s not my concern,” Booker replied. “We live in a country right now where, especially LGBTQ youth, are disproportionately bulled at school—”
“Hate crimes,” Barr added.
“Hate crimes, serious hate crimes,” Booker agreed. “Many (LGBTQ students) report missing school because of fear, (and are) disproportionately homeless. And I guess what I’m more concerned about, is do you believe that laws designed to protect LGBTQ individuals from discrimination contribute to what you describe as a breakdown of traditional morality?”
“No…But I also believe there has to be accommodation to religious communities,” Barr answered. He added that he thinks it is wrong to fire someone for being gay, but stressed that it was the Department of Justice’s job to enforce the laws, and Congress’s job to make them. He said he believes the Civil Rights of 1964 was referring to “male-female” when it speaks of sex, and not gender identity or sexual orientation.
“I think for like three or four decades, the LGBT community was trying to amend the law,” he added.
Booker noted that Title IX was used by the Obama administration to protect LGBTQ students, which Barr responded to by saying he wasn’t sure what Booker was referencing.
The Obama administration determined that Title IX provided protections for trans students looking to use the bathrooms and locker rooms matching their gender identity, which the Trump administration subsequently rolled back.
On Civil Rights Law Covering LGBTQ People
Sen. Mazie Hirono (pictured below) sought further clarification at the end of the hearing, asking about the DOJ arguing that Title VII of the Civil Rights Act of 1964 does not protect on the basis of sexual orientation.
“Both the Second and Seventh Circuit (Courts) have rejected the department’s argument. If you are confirmed, would you appeal this decision to the Supreme Court?” Hirono asked.
“I think it is going up to the Supreme Court,” Barr replied.
“So is the DOJ going to continue to argue that Title VII does not protect (against) employment discrimination (on the basis of sexual orientation)?” she pressed.
“It’s pending litigation, and I haven’t gotten in to review the department’s litigation position, but the matter will be decided by the Supreme Court,” he said.
“That sounds like a yes to me, that the department will continue to push the argument that has been rejected,” said Hirono.
“It’s not just the department’s argument, it’s been sort of common understanding for almost 40 years,” Barr claimed. “The question is an interpretation of a statute passed in 1964. As I’ve already said, I personally, as a matter of my own personal feelings, think that there should be laws that prohibit discrimination against gay people.”
Hirono then asked if he would reevaluate the department’s position, as a result of that.
“No, because there’s a difference between law and policy…I will enforce the laws as passed by Congress. I’m not going to amend them, I’m not gonna undercut them, I’m not going to try to work my way around them and evade them.”
Hirono noted the DOJ doesn’t have to file an amicus brief in support of positions, either, as it has done under the Trump administration, in favor of the conservative position, before moving on to Title IX.
“Recently, The New York Times reported the Department of Health and Human Services wanted to redefine gender for federal anti-discrimination law, such as Title IX…as being determined by the biological features one has at birth. So, do you believe that transgender people are protected from discrimination by Title IX?” she asked.
“I think that matter is being litigated in the Supreme Court, too,” he responded, adding he wasn’t sure what the DOJ’s position was on the matter. Hirono asked him to review that stance if he is confirmed.
Barr was also asked a host of questions on the Mueller investigation, which he said he intends to allow to do its work. He said he would not fire Mueller, if asked to by the president, and said he intends to allow as much information from that report to reach the public as is possible.
The confirmation hearings continue today.
Watch yesterday’s confirmation hearing below.
Watch today’s confirmation hearing, live, below.