Why Is a Liberal LGBT Activist One of Trump's Nominees?

As the culture war between gay rights and religious liberty rages, conservatives are livid that the president renominated Chai Feldblum at the Equal Employment Opportunity Commission.

A seal for the Equal Employment Opportunity Commission
David Zalubowski / AP

Social conservatives love them some Donald Trump. The reason is hardly a mystery. Despite the swirling tales of porn stars and Playboy bunnies, Russian hookers and general degeneracy, this president has delivered on some key issues for traditional-values voters, especially when it comes to appointments. (“Gorsuch!” has become an all-purpose rejoinder to any awkward questions about Trump’s fitness for office.) Ordinarily harsh moralizers—including Franklin Graham, Tony Perkins, and Jerry Falwell Jr.—are among the most reliable Trump apologists. And while a majority of Americans remain ambivalent about 45, his religious followers grow ever more enamored. A new survey by the Public Religion Research Institute has Trump’s favorables among white evangelicals at an all-time high of 75 percent.

Which is why social conservatives’ ongoing freak-out over Chai Feldblum is so striking.

Who the heck is Chai Feldblum? For those who don’t closely chart the comings and goings of random bureaucrats at non-glamorous government agencies: Feldblum has been a commissioner at the Equal Employment Opportunity Commission since Obama appointed her in 2010. In 2013, she was reupped for a full five-year term, set to expire on July 1. In December, Trump renominated Feldblum for a third go-around.

Feldblum’s curriculum vitae is impressive, intimidating even. A graduate of Harvard Law, she clerked for Supreme Court Justice Harry Blackmun. In 1988, she went to work as legislative counsel for the ACLU’s AIDS project, where she had a key role in drafting the Americans with Disabilities Act of 1990. In 1991, she became a professor at the Georgetown University Law Center, where she founded the Federal Legislation and Administrative Clinic (which reps organizational clients focused on social justice) and Workplace Flexibility 2010 (a policy shop working to promote—duh—workplace flexibility).

On a more personal note, Feldblum is the child of a Holocaust survivor. (Her father was one of only two people to escape the massacre of his home village in Lithuania; he survived the war by hiding out in the forests of Poland.) Descended from a long line of Orthodox rabbis, she toyed with the idea of becoming a Talmudic scholar before switching to law. At her 2009 Senate confirmation hearing, Feldblum quipped that it was from her father, Rabbi Meir Simcha Feldblum, that she inherited a love of legal text: “He studied the Talmud; I study the U.S. Code.” She said he also instilled in her “a driving commitment to justice.”

Which is where things get politically sticky.

Feldblum told Senators, “My entire career has been devoted to civil rights and social-welfare rights.” Among her pet causes: LGBT rights. While at Georgetown, in fact, she took the lead on drafting ENDA, the Employment Non-Discrimination Act, which (if ever adopted) would prohibit workplace discrimination on the grounds of gender identity or sexual orientation. Even without ENDA, she has promoted these rights during her time at the EEOC.

For Feldblum, the fight is personal. Her commission bio notes that she is the agency’s “first openly lesbian Commissioner.” In her opening statement at her confirmation hearing, she introduced her domestic partner to the assembled lawmakers.

Thus the roots of the Feldblum freak-out become clear. In the ongoing culture war between gay rights and religious liberty, conservatives see her as a fierce fighter for the other team, who has no place in this administration.

Indeed, when Trump renominated Feldblum, Tony Perkins, the head of the conservative Family Research Council, penned a statement declaring the move “a shock to conservatives” and lamenting the threat posed by Feldblum, with her “impressive resume of radical extremism.” Perkins asserted, “The last thing this president wants on his EEOC is an arch enemy of his agenda on religious liberty.”

FRC’s call for Trump to rescind Feldblum’s nomination has been echoed by conservative groups ranging from the Catholic League to the National Organization for Marriage (which has been doing “emergency” fundraising to combat this “radical LGBT extremist”) to the American Family Association. The AFA, which has labeled Feldblum “a menace to society,” “the Dragon-queen of religious bigotry,” and “a one-woman Spanish inquisition” who believes in “homosexuality uber alles,” has gone so far as to launch a recall petition. Conservative media has taken up the cause, with a wave of pieces variously denouncing Feldblum as a “radical,” an “extremist,” and Trump’s “worst” pick.

Which begs the question: Why did Trump tap this woman for another term? He didn’t. Not really. Chuck Schumer did—which may sound oddly bipartisan for these turbulent times but is in fact standard operating procedure. At bipartisan agencies like the EEOC (the FEC, the SEC, and so on), a certain number of seats go to the party that holds the presidency while a slightly smaller number are reserved for the party out of power. For the five-member EEOC, this currently means a 3 to 2 split in Republicans’ favor.

When filling opposition seats, the president typically relies on recommendations from that party’s Senate leadership. Then, depending on how many vacancies need to be filled, a slate of the combined picks from both teams are sent to the Senate, where the entire shebang is put up for a Unanimous Consent vote (a fast-track procedure that bypasses the endless hoops of a regular confirmation).

But that’s only if no senator puts a hold on the nominations. Which, in Feldblum’s case, at least one has: Utah’s Mike Lee, who, in the name of religious liberty, has been a loud, proud opponent of Feldblum.

To get the EEOC train rolling again will now take one of two moves: 1. Trump can pull Feldblum’s nomination. But that would blow up the slate and put Democrats in no mood to send him a more palatable alternative recommendation, much less wave through subsequent nominees. 2. Senate Republican Leader Mitch McConnell could break apart the package and ram through each nominee separately. Again, Democrats would respond unpleasantly, killing any possibility of a Unanimous Consent vote. In such a closely divided Senate, who needs that kind of headache? Unsurprisingly, McConnell is focusing on clearing higher-profile, higher-priority nominees.

While one might assume that Feldblum-resisters like Lee would be heroes to the conservative cause, there is one further wrinkle to consider. Because of multiple vacancies, the EEOC is currently dominated (2 to 1) by Democrats, who are running around enforcing anti-discrimination laws the way they see fit. The nomination package being held up contains Feldblum and two Republicans—which, if approved, would shift the power balance back to the GOP. For this reason, some conservatives are eager to move things forward, even if it means stomaching Feldblum. Late last month, Carrie Lukas, president of the conservative Independent Women’s Forum, publicly called on Senate conservatives to stop making the perfect the enemy of the good and fill these seats ASAP. (Read: before midterms potentially blow everything up.)

So as things now stand, social conservatives are up in arms about their president embracing Feldblum. (As Perkins grumped: “Even if the commission is required to have a certain number of Democrats, the White House doesn’t have to take just anyone (or, in this case, the worst possible option).”) At the same time, other pockets of conservatives are getting testy that, thanks to Lee’s hold, the EEOC remains in Democratic hands even as the potentially devastating midterms loom.

Democrats, meanwhile, are kicked back watching the storm, for once being slammed by no one for gumming up the works. One might almost suspect they’re enjoying themselves.