Charles Schumer Makes Case for Gay Judges

BY Julie Bolcer

October 26 2011 4:00 AM ET

Schumer's second openly gay recommendation, J. Paul Oetken, navigated a smoother path on his way to becoming the first openly gay man on the federal bench. The associate general counsel of Cablevision was confirmed with a bipartisan 81 to 13 vote in July.

In comparison, Alison Nathan, an openly lesbian nominee, was narrowly confirmed earlier this month in a party-line vote of 48 to 44. Schumer revealed that he felt “very worried” in the moments immediately prior to her confirmation, with five Democrats not voting and unanimous Republican opposition threatening to peel off support within his caucus.

“It was sort of a sneak attack at the last minute,” he said, drawing a sharp contrast with the 14-4 committee vote in July that advanced Nathan to the floor. “Usually when you get a bipartisan vote in the committee, you think there’s going to be clear sailing on the floor.”

Instead, Schumer said he received a “friendly call” from one of his Republican colleagues about 90 minutes before the vote on October 14 to tell him that their conference planned to oppose the nominee uniformly. The senators had received an alert about the nominee from the conservative Heritage Action for America, which scores lawmakers on their votes, and a letter from the Concerned Women for America that took direct aim at Nathan’s sexual orientation.

“Nathan has a long history as political activism with Lesbian Gay Bisexual Transgender (LGBT) which calls into question her impartiality and judicial temperament,” said the letter, which cited her work as a member of the LGBT policy committee for the Obama campaign in 2008, and her pro-bono representation for groups including the ACLU, Lambda Legal, and Servicemembers Legal Defense Network.

“The least of it is not grammatical, the worst of it really smacks of real bigotry,” said Schumer.

No Republican senator publicly invoked sexual orientation in opposing Nathan. During his own floor remarks, Schumer focused on the fact that Nathan’s “majority qualified, minority unqualified” rating from the American Bar Association, which some challenged, was equal to that of 33 other judges nominated by President George W. Bush and confirmed by the Senate.

“Are we going to have a different standard for Ali Nathan than for other judges?” he asked.

Oetken, who received a higher rating of “unanimously qualified” from the ABA, wrote a brief for the National Gay and Lesbian Bar Association in Lawrence v. Texas, the Supreme Court case that struck down the nation’s sodomy laws in 2003. Unlike Nathan, he did not become a conservative target, and Schumer said only the opposition knows why, although the lobbying materials suggest some worrisome possibilities.

“It’s hard to see that it [sexual orientation] wasn’t [a factor] given the writing, particularly of this Concerned Women for America group,” he said. “I think she would have gone through with a much higher vote had these groups not put out these sheets.”

















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