Last month I wrote an article criticizing White House Press Secretary Jay Carney for calling anti-gay marriage bills discriminatory, explaining in my opening paragraph that “exclusion does not always equal discrimination.” However, shortly after that article came out, a gay prosecutor in Virginia was prevented from becoming a judge by the House of Delegates. Excluding him from sitting on the bench based solely on his sexual orientation was discrimination. It also has potentially harmful political implications.

The House of Delegates rejected prosecutor Tracy Thorne-Begland’s nomination despite his meeting all of the qualifications and having years of experience. Richmond Commonwealth’s Attorney Michael N. Herring said that Tracy Thorne-Begland “would have been an outstanding judge.” Herring would know, since he has worked with him for the past twelve years. Before he was a prosecutor, though, Thorne-Begland was a decorated naval officer. He has the character, he has the experience, yet he was rejected after receiving a mere 33 yea votes; he needed 51 of the 100 House votes to have his nomination sustained. When Sen. A. Donald McEachin (D-Henrico) chastised the Republican leaders in the Senate and House, lamenting, “This is not our finest hour.” He was completely right.

Del. Robert G. Marshall provided two reasons as to why Thorne-Begland is not fit to be a judge. The first is that his “life is a contradiction to the requirement of submission to the constitution.” He points to the fact Thorne-Begland considers himself married, even though Virginia does not allow same-sex marriage, as proof. Now, if he had lived with a woman for six years and they referred to each other as husband and wife, despite Virginia not recognizing common law marriages, would Marshall still oppose his nomination so vehemently? I don’t think he would. Furthermore, maybe Thorne-Begland believes his right to marriage is guaranteed by the Fourteenth Amendment, in which case he would be “submitting to the Constitution.” In any case, this is a flimsy argument against affirming his nomination.

Marshall and the conservative Family Foundation also posed the argument that Thorne-Begland was not fit to serve on the bench because of his support for gay marriage, his long-held opposition to “don’t ask, don’t tell,” and his ability to pursue an “aggressive activist homosexual agenda” if allowed to become a judge. They are essentially arguing that he is not able to separate his personal beliefs from the law, and thus could not prevent them from influencing his decisions as a judge.

In response to his support for gay marriage, Perry v. Brown already found that gay judges, in that case Judge Vaughn Walker, were able to rule fairly in cases concerning gay marriage. As for him challenging the military’s “don’t ask, don’t tell” policy, I don’t see how that is proof of bad judgment, as the policy is now defunct. Marshall cannot prove that Thorne-Begland has a propensity for throwing precedent aside and letting personal beliefs influence his rulings; saying, “he may do it if we elect him” just isn’t a good enough argument to deny him judgeship. In other words, he should be considered innocent until proven guilty; if there is no proof of him making a bad decision, then he should be allowed to become a judge. Also, as a side note, the Richmond District Court hears misdemeanors, certain civil cases, and conducts preliminary hearings for felonies, so it is not as if he would have been able to make gay marriage legal with a wave of his hand. After dissecting their arguments, it is apparent that Marshall and his colleagues discriminated against Thorne-Begland because he was gay.

For those not familiar with the incident, Judge Robert H. Bork was nominated to the Supreme Court by Ronald Reagan in 1987, only to have his nomination shot down by the Senate because of his political views. Our very own Vice President Joe Biden, who was chairman of the Senate Judiciary Committee at the time, led the all-out battle to kill Bork’s nomination in the name of protecting civil rights, when it was actually just a partisan attack by Democrats against Reagan and his party. Because of the savage way Bork was treated by liberals, “borking” has become a term for “attack[ing] a person’s reputation and views unfairly.”

In Bork’s case, his originalist views and opposition to abortion were used as a reason as to why he could not be a judge. Biden argued that Bork’s originalism was ideologically contradictory to the U.S. Constitution, which sounds a lot like Marshall’s argument in the Thorne-Begland issue. Furthermore, Bork was attacked on account of his marriage to a former Roman Catholic Nun. Thorne-Begland was also discriminated against because of who he wanted to marry.

When I first read about what the Virginia House had done, I was almost glad the Democrats had been given a taste of their own medicine, but then I realized that I want to be a federal judge one day, and I don’t want to be “borked” by angry Democrats upset over incidents like this one. Both Bork and Thorne-Begland had years of experience and used sound legal reasoning when arguing and deciding cases. It is not right for them to be persecuted for their beliefs.

Virginia Governor Bob McDonnell’s disappointment after learning of the decision is telling:

“All I can tell you is what I’ve always said about judges, and these ought to be merit-based selections solely based on a person’s skill, ability, fairness, and judicial temperament.”

I couldn’t agree more; qualifications, not sexual orientation and personal beliefs, should be the deciding factor when choosing who serves in the judiciary. Sure, this discriminatory act in Virginia could be seen as a political success for the far-right, but using the same underhanded tactics relied upon by the Democrats who killed Bork’s nomination isn’t proving anything.

Adam Ondo | University of Rochester | @JoplinMaverick