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.
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.”
“Sen. Grassley’s record shows he doesn’t vote based on sexual orientation,” said the statement. “His vote in this case was based on experience level and strongly held views that might influence the nominee’s decisions on the bench. As he said, Ms. Nathan graduated from law school only 11 years ago and has been admitted to practice law for only eight years. Her questionnaire states she served as associate counsel on approximately six trial court litigation matters. Most of the significant litigation she lists is from her current position in the New York Solicitor General’s Office. In addition, he said he is concerned about her views on 2nd Amendment rights, on the death penalty, on the use of foreign law, and her remarks regarding the war on terrorism.”
There are no standardized procedures by which senators recommend candidates for the federal bench, a fact that prompts complaints about transparency but appears not to have harmed diversity in New York. Schumer makes his recommendations with input from a screening committee familiar with his criteria. His office refused to discuss the membership of the panel, but many senators are known to maintain informal networks of legal professionals that recruit, interview and review prospective candidates.
The senator acknowledged he relied on a gay grapevine of sorts several years ago when he first found out there were no openly gay men on the federal bench. He said he “sent out word” in the gay community, which in New York enjoys visible leadership, a deep pool of legal talent, and strong protections including a marriage equality law that took effect in July. Schumer, who voted for DOMA in the House in 1996, announced his support for same-sex marriage in 2009 and advocated for the measure in his state.
“I hope to set an example, in a way, for my colleagues that you can have excellence and you can have moderation and diversity as well,” he said. “My goal has been to make the bench look more like America. I hope we get to a day where none of these things matter, but we’re not in that day yet.”