Third Gay Obama Court Pick Makes Slow Progress

Two of four openly gay and lesbian picks for the federal courts nominated by President Obama have been confirmed, but two others are languishing, making only fitful progress if that.

Even so, any progress for openly gay jurists is welcome by GLBT equality advocates, who envision a time when sexuality will not be a factor in decisions about who presides over the courts. Equality advocates also say that increasing the number of openly gay and lesbian federal judges--there are currently only a few--will mean that the judiciary more closely resembles the general population.

Such progress was evident on Nov. 3 when a Senate committee gave the thumbs up to openly gay candidate Michael Fitzgerald, reported the Washington Blade that same day.

The committee's approval came three weeks after an openly lesbian candidate, Alison Nathan, won Senate confirmation for the federal bench on Oct. 13 in a closely divided vote of 48-44. Nathan's confirmation marked the second out of four openly gay or lesbian nominees for federal judgeship the president has nominated, following J. Paul Oetken's confirmation in July, noted Advocate.com on Oct. 13.

Oetken was confirmed to fill a seat in the federal court of the Southern District of New York, the same district as the seat to which Nathan has now been confirmed. Oetken's confirmation made him the first openly gay man to be confirmed to the federal bench.

President Obama nominated Ed Dumont in April of 2010 for the U.S. Court of Appeals for the Federal Circuit, but the Senate has not taken action on the nomination, a lack of action that has been decried as resulting purely from Dumont's sexuality.

Obama nominated Fitzgerald to serve on the U.S. District Court for the Central District of California. The Senate's judiciary committee conducted a hearing on his nomination on Oct. 4, reported Metroweekly's "Poliglot" blog on Oct. 13.

Of Fitzgerald, Obama said in a July statement, "His impressive career stands as a testament to his formidable intellect and integrity. I am confident he will serve the people of California with distinction on the District Court bench."

Fitzgerald was one of a number of candidates approved by the Senate committee, which approved the nominees en banc with a voice vote.

The full Senate would have to approve the nomination before Fitzgerald could assume a place with the U.S. District Court for the Central District of California, and that might well take months, given the number of judicial nominees the Senate has as yet neglected to take action on.

"This nomination will join those and the others reported today on the floor," said Senate Judiciary Committee spokesperson Erica Chabot, before going on to add, "Sen. Leahy has been very clear about his concerns with how long nominations are pending on the floor after being reported by the committee."

Even so, equality advocates expressed enthusiasm for the committee's vote.

"Moving Michael Fitzgerald's nomination to the Senate floor is a positive step toward confirming a dedicated legal talent," Human Rights Campaign spokesperson Michael Cole-Schwartz said. "We urge the full Senate to confirm him and help make the bench more representative of the diversity of the American public."

"I am so pleased that the Senate Judiciary Committee unanimously approved Michael Fitzgerald's nomination to serve on the federal bench," said California Democrat Sen. Barbara Boxer, who had recommended Fitzgerald to Obama for the nomination.

"He is a highly respected attorney whose sharp intellect and experience as a former federal prosecutor and attorney in private practice will make him an outstanding judge," Boxer added. "It is now critical that the Senate move swiftly to confirm him so he can begin serving the people of the Central District."

"The gay judicial nominee is no stranger to represent client in cases related to LGBT rights," The Washington Blade reported. "Fitzgerald was involved in the settlement of Buttino v. FBI, the 1993 class-action lawsuit involving Frank Buttino, a gay FBI specialist who was anonymously outed to his superior, resulting in the removal of his security clearance and subsequent firing. Fitzgerald asked his law firm at the time to represent Buttino on a pro bono basis.

"As a result of the settlement, the FBI renounced its prior policy of viewing homosexuality as a negative factor in regard to security clearances, the FBI agreed to hire an openly lesbian special agent and Buttino's pension was restored," the Blade article added.

But some viewed Fitzgerald's record with alarm. Anti-gay elements from the Christian political right urged the committee to reject Fitzgerald's nomination, Advocate.com reported on Nov. 3.

The Family Research Council-affiliated FRCAction and the Traditional Values Coalition each sent letters to the committee warning of what they called Fitzgerald's "extreme liberal activism," and predicting a "potential conflict of interest over his judicial duties."

The groups also warned committee members that their votes would be tracked and "scored."

"Not only was Fitzgerald an active member of an organization that worked to ban military recruiters from Harvard University, Fitzgerald opposed and actively campaigned against the widely-popular California Proposition 8 which defended the institution of marriage and family," the letter from the Traditional Values Coalition said. The letter compared Fitzgerald to Elena Kagan, the Supreme Court justice who was slammed by conservatives during her own confirmation process for having followed the established precedent of not allowing military recruiters on campus during her tenure as the dean of the Harvard Law School.

The anti-gay groups also accused Fitzgerald of demonstrating an "aggressive predilection for innovation rather than a strict adherence to the rule of law."

FRCAction's letter covered similar territory and struck much the same tone.

"Mr. Fitzgerald has a history of being active in homosexual advocacy groups including the Stonewall Democrat Club, Los Angeles Gay and Lesbian Center, Lesbian and Gay Lawyers Association and the Harvard-Radcliffe Gay and Lesbian Caucus," the FRCAction letter said.

"This last organization worked to block the ROTC program from recruiting at Harvard because they opposed 'Don't Ask, Don't Tell,' " FRCAction's letter continued. "You will recall Justice Elena Kagan supported this policy when she was Dean of the Harvard Law School, an anti-military position that led many senators to oppose her confirmation."

The letters were more or less cut from the same cloth as a missive that the Concerned Women of America sent to oppose Nathan's confirmation, noted the Washington Blade.

The CWA smeared Nathan for her "long history as political activism [sic] with Lesbian Gay Bisexual Transgender" causes, claiming that her work with equality groups cast suspicion on her "impartiality and judicial temperament."

Sen. Charles Schumer called the letter's critique of Nathan "real bigotry," the Blade article recounted. Schumer had recommended Nathan to Obama.