Judge mulling LGBT law has GOP, big-business pedigree

By Jonathan Drew
Associated Press

RALEIGH, N.C. (AP) — The fate of the North Carolina law governing transgender restroom access rests in the hands of a judge appointed by President George W. Bush who recently sided with the state’s Republican leaders by upholding a voter ID law — but just had that decision overturned by a federal appeals court. U.S. District Judge Thomas Schroeder, a former corporate lawyer known for representing the R.J. Reynolds Tobacco Company, heard oral arguments Monday on whether the state can require transgender people to use restrooms in many public buildings that match their birth certificates, rather than their gender identities.

The U.S. Justice Department and the American Civil Liberties Union are seeking preliminary injunctions to block the restroom provision of the law, known as House Bill 2, which also excludes gender identity and sexual orientation from statewide antidiscrimination protections. Defending HB2 are Republican Gov. Pat McCrory, state legislative leaders and a citizens’ group. Schroeder has scheduled a trial for November.

“With regard to judicial philosophy, he’s pretty right-wing,” said Norman Smith, a longtime Winston-Salem attorney. Smith suspects Schroeder would “feel comfortable in wanting to uphold HB2,” even though he’s considered more moderate than some other Republican-appointed judges in the state.

“When he was put in the court by Bush, there was a sigh of relief from the plaintiffs’ bar” that the president didn’t pick someone more conservative, Smith recalled. Since then, Schroeder has earned a reputation as a meticulous legal thinker who holds lawyers to high standards.

“He’s very careful and polite and doesn’t show his hand very much. So he’s a pleasant person to appear in front of,” said Smith.

As he decides whether HB2 violates federal civil rights laws, Schroeder must account for a federal appeals court ruling favoring a transgender Virginia teen who has sought access to boys’ bathrooms at his high school, but the judge still has leeway.

Studies show that Republican appointees tend to rule more conservatively than Democratic appointees, though the difference is so slight that political affiliations don’t help predicting a particular case’s outcome. That said, party principles can guide jurists deciding less settled questions, Brookings Institution scholar Russell Wheeler said.

“Federal judges do take their role seriously, and their role is to apply the law as it should be applied. But cases come along in which the law is not clear and they have to turn to something else, and that explains these slight differences,” Wheeler said.

Schroeder’s background representing large corporations could make him sympathetic to the views of the dozens of businesses that signed onto an amicus brief urging him to halt the bathroom-access provision, Wheeler said.

As a federal judge in North Carolina, he’s increasingly being asked to decide whether the state’s Republican-led legislature has gone too far.

Schroeder upheld the state’s voter ID law in April, rejecting arguments by the Justice Department and the NAACP. In a nearly 500-page ruling, he acknowledged that black residents faced discrimination but found that plaintiffs failed to show those issues had “materially adverse effects” on their ability to vote.

On Friday, a three-judge panel on the 4th Circuit Court of Appeals in Virginia criticized Schroeder’s reasoning and overturned his decision in a sharply worded opinion.

“In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees,” the panel wrote in its opinion.

Last summer, Schroeder also ruled that the Justice Department failed to prove allegations that a North Carolina sheriff ordered deputies to target Hispanic residents in violation of their civil rights. And he’s on a three-judge panel that has yet to rule on a challenge to Republican-drawn state legislative districts.

“He writes fairly lengthy opinions and he really gets into detail and wants to understand the case and what’s going on,” said Raleigh attorney S. Chuck Kitchen, who defended the Alamance County sheriff.

Schroeder declined an interview request.

Born in 1959 in Atlanta, Schroeder was a promising high-school trumpet player in Winston-Salem before earning a bachelor’s degree in business administration at Kansas University. After graduating from Notre Dame Law School in 1984, he clerked for federal appeals Judge George Mackinnon, a Nixon appointee, and then began private practice in Winston-Salem.

Eventually, he became a partner at Womble Carlyle, where he counted R.J. Reynolds as a major client. He successfully defended the company against asbestos workers seeking billions in damages from cigarette manufacturers.

Schroeder’s selection from private practice stands out in an era when the last two presidents have turned to lower-court judges and government lawyers for two-thirds of their federal district court appointees, Wheeler said.

During a confirmation hearing in 2007, Schroeder told the Senate Judiciary Committee that it’s a judge’s duty to uphold the rights of “every litigant who comes before the court, no matter what the background or race or religion,” according to a story in the Winston-Salem Journal.

Promising to be impartial, Schroeder told the senators: “I have appeared in courtrooms where, to my dismay, I felt like I did not get the fair treatment or consideration that I thought was appropriate. I know what that feels like.”