The beginning of the new year brought an end to Chai Feldblum’s long tenure as EEOC commissioner. Last month, her supporters made a last ditch attempt to have her confirmed for another term. However, Sen. Mike Lee, who fought against her confirmation throughout 2018, wouldn’t budge. With Lee holding firm, Majority Leader McConnell did not allow a vote — one Feldblum almost certainly would have won.
Had Lee been the only holdout, McConnell might have held a vote. But other Senators also balked at her nomination. I’m not certain which Senators these were, but they reportedly included at least the following three: Steve Daines, James Lankford, and Marco Rubio.
Feldblum’s parting tweet illustrates why she was unfit to be an EEOC commissioner and never should have been confirmed in the first place:
Today at noon my commission on the EEOC expires. What a wonderful almost nine-year run I have had! TY to all who worked so hard on my confirmation. We certainly gave it our best shot. Now we must fight even harder for diversity, safety, and equity. There is no other way!
It’s not the job of the EEOC to fight for abstractions like “diversity, safety, and equity.” The EEOC’s job is to enforce federal employment discrimination law. Federal employment discrimination law mandates non-discrimination. It doesn’t call for diversity or safety, or even equity in the abstract.
Non-discrimination will produce greater diversity, safety, equity in some cases, but these aren’t the touchstones of federal law. The touchstones are the words of the relevant statutes.
Feldblum’s unwillingness properly to conceive the EEOC’s role led her to push for radical positions not supported by federal statutes as written. This should have disqualified her from remaining on the commission.
Unfortunately, it didn’t. The way the system works is that Democrats get to pick some of the commissioners. Democrats prefer activists who will pursue a radical agenda regardless of what the relevant statutes say.
Feldblum’s renomination failed because she was too candid about one aspect of her radicalism. She famously said:
There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because that’s the only way that the dignity of gay people can be affirmed in any realistic manner. . . .
I’m having a hard time coming up with any case in which religious liberty should win.
The statutes Feldblum was supposed to enforce don’t speak of “the dignity of gay people.” They don’t speak about “gay people,” qua gay people, at all.
Feldblum made her offending statement before she joined the EEOC. However, during her time at the commission, she demonstrated her adherence to the principle she had articulated. The EEOC’s positions on gay and transgender rights belied her last minutes attempts to portray herself as a moderate in the tradition of Justice Kennedy. These attempts didn’t pass the straight face test.
What happens now with the EEOC? It’s down to two commissioners which is one short of a quorum. Without a quorum, I don’t believe it can initiate new actions. I think it can continue to prosecute existing ones (to the extent the partial government shutdown doesn’t interfere), but I haven’t analyzed this question in any depth.
At some point the Trump administration will put forth another slate of nominees — two Republicans and one Democrat. The Democrats will pick the Dem and it may well be another openly gay or lesbian nominee, which would be fine. The administration might (or might not) renominate Janet Dhillon from the original slate. Daniel Glade, the other Republican, has withdrawn from consideration, which is very unfortunate.
The Dem nominee, regardless of his or her sexual preference, will likely be roughly as radical as Feldblum, but without the paper trail. He or she will vow during hearings to enforce the law as written and respect religious liberty. Once confirmed, he or she will likely ignore these pledges.
But the new Democrat commissioner will likely be a far less effective advocate for radicalism. He or she almost certainly won’t have anything approaching Feldblum’s knowledge of how the EEOC works and how to get one’s way there. And he or she will probably fall well short of Feldblum’s intellectual firepower, which is considerable.
That’s one reason why blocking Feldblum was worthwhile. The other is that folks who openly and explicitly disrespect claims of religious liberty shouldn’t be awarded with term after term on the EEOC.