Charles Schumer Makes Case for Gay Judges

BY Julie Bolcer

October 26 2011 3:00 AM ET

When it comes to openly gay appointees to the federal bench, the glass ceiling might as well have been coated in concrete — until Sen. Charles Schumer pushed for two out nominees.

So far this year, J. Paul Oetken and Alison Nathan have been confirmed, a small figure that made a huge impact by tripling the number of openly gay men and women with one of the nearly 900 lifetime appointments to federal district and appellate courts, the breeding grounds for Supreme Court justices.

Schumer recommended Oetken and Nathan for the Southern District of New York, which makes the lawmaker responsible for two-thirds of the out judges currently on the federal bench. U.S. District Judge Deborah Batts, an African-American lesbian appointed by President Bill Clinton in 1994, also sits on the Southern District of New York. Judge Vaughn Walker, a Republican appointee known for presiding over the Proposition 8 case in the Northern District of California, acknowledged that he is gay after he retired earlier this year.

“He really does stand out in having made a significant commitment to diverse candidates,” said Caroline Fredrickson of Schumer. She is executive director of the American Constitutional Society, which tracks judicial nominations. “He’s also been very, very committed to having more women on the bench, as well as Asian-Americans and African-Americans and Latinos. There’s no question that Senator Schumer is head and shoulders above where most senators are in his commitment to achieving diversity on the bench.”

The two confirmations form part of an unprecedented larger effort by the Obama administration to diversify the ranks of federal judges. Women and minorities make up more than half the president’s nominees, although the bench remains dominated by heterosexual white males and the Senate has been slow to confirm his choices, including two pending gay nominees. Edward Dumont, a gay man nominated to the U.S. Court of Appeals for the Federal Circuit last year, still awaits a committee hearing, while Michael Fitzgerald, an out nominee for the Central District of California, could be confirmed within weeks.

Unlike Supreme Court vacancies, the White House traditionally defers to the state’s senators or highest-ranking elected official from the president’s party when making appointments to the lower courts. Schumer is the state's senior senator and his choices since taking office in 1998 show that he has leveraged that courtesy to give underrepresented groups a major boost, where 15 of his 21 recommended nominees bring diversity in one or more categories of ethnicity, sex or sexual orientation.

The Southern District of New York, the destination for most of Schumer’s diverse recommendations, stands among the country's busiest and most influential district courts, where judges preside over multi-billion dollar corporate lawsuits in Manhattan. Windsor v. United States, a pivotal challenge to the Defense of Marriage Act, also was filed in the district, which makes it a front in the ever-expanding marriage equality battleground.

The third-highest ranking Democrat in the U.S. Senate, Schumer said that he considers three criteria in selecting candidates to recommend: excellence (no “political hacks”), moderation (“not too far right or too far left”) and diversity. A graduate of Harvard Law School, he praised diversity as a source of “incalculable” benefits, like providing role models for gay and lesbian youths and breaking “mental barriers.”

“Diversity is the third criteria I have,” said the judiciary committee member. “I would not nominate anyone who didn’t meet the first two. When you get all three, it’s the Triple Crown, and so far I’ve been able to do that. It involves some looking.”

In the case of an openly gay nominee, the search took over a decade. And his first recommendation sunk when Daniel Alter failed to receive a nomination to the Southern District. Schumer declined to discuss the matter, but it was widely reported that the White House faced concerns about Alter’s alleged opposition to the words “under God” in the Pledge of Allegiance and the phrase “Merry Christmas” — remarks that the candidate denied making.

















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