Out Lesbian Alison Nathan Confirmed to Federal Bench

By Julie Bolcer

Originally published on Advocate.com October 13 2011 2:35 PM ET

The U.S. Senate confirmed Alison Nathan to serve as a federal judge on the U.S. District Court for the Southern District of New York in a close 48-44 vote Thursday that followed last-minute accusations from a conservative women’s group about the “impartiality and judicial temperament” of the out lesbian nominee.

Nathan became the second of four openly gay appointees from President Barack Obama to be confirmed to the federal bench. In July, the Senate confirmed J. Paul Oetken to the Southern District of New York.

“The President welcomes the confirmation of Alison Nathan,” said White House spokesman Shin Inouye in a statement. “She will serve the American people well from the District Court bench.”

The 48 to 44 vote proved unexpectedly close for a nomination that had proceeded without controversy. All Democrats present voted yes and all Republicans, including four judiciary committee members who supported the 14-4 vote to report her nomination to the full senate in July, voted no.

Nathan’s nomination seemed to turn controversial at the last minute following outreach from conservative groups to senators. Heritage Action for America charged that Nathan lacked experience and would rely on foreign law in a message that threatened to punish senators who voted to confirm her.

“Heritage Action opposes the nomination of Alison Nathan and will include the vote on her nomination as a key vote in our scorecard,” said the group.

According to a source, Concerned Women for America’s Legislative Action Committee sent a letter to senators about Nathan on Thursday. In a copy provided to The Advocate, the group said that the nominee’s LGBT “political activism” called into question “her impartiality and judicial temperament.”

“She served as a member of the LGBT issues policy committee during the 2008 Obama campaign,” wrote Concerned Women for America. “In addition, Nathan has provided pro-bono representation for the ACLU, Lambda Legal, Service Members Legal Defense Network, and individual service members in challenges to the so-called ‘Don’t Ask, Don’t Tell’ policy.”

“Her biases are so ingrained and so much the main thrust of her career that it not rational to believe that she will suddenly change once confirmed as a judge,” continued the letter. “Rather it is reasonable to conclude she would use her position to implement her own political ideology.”

Immediately prior to the vote, Republicans including Senator Jeff Sessions of Alabama spoke against the confirmation of Nathan. Senator Sessions warned that she could be an “activist judge” lacking experience and having a propensity to rely on foreign law.

Nathan was defended on the floor by Senator Charles Schumer of New York. The Democratic lawmaker had recommended that President Obama nominate her and J. Paul Oetken, an openly gay man confirmed to the Southern District in New York in July.

Responding to charges that Nathan lacked the American Bar Association rating to be a judge, Schumer said that the Senate confirmed 33 nominees from President George Bush with ratings equal to hers.

“Mr. President, are we going to have a different standard for Ali Nathan than for other judges? I sure hope not,” said Schumer. “Then some have brought up only recently -- actually, very recently -- the thought that Ms. Nathan would apply foreign law to our own laws. That is patently false to say that Ms. Nathan has suggested or that she believes it is appropriate for U.S. judges to rely on foreign law. Or that she herself would ever consider doing so.”

The Human Rights Campaign hailed the confirmation of Nathan in a statement from the group’s president, Joe Solmonese.

“We commend the Senate for their important vote today, confirming Alison Nathan to the U.S. District Court for the Southern District of New York,” he said. “Ms. Nathan’s demonstrated intellect and dedication to public service is a model of achievement. She will join Judges Deborah Batts and Paul Oetken in the Southern District of New York as the only openly lesbian or gay federal judges. We look forward to the day when the makeup of the entire federal bench truly represents the diverse American public.”

Nathan, a counselor to the New York State Solicitor General, served as a special assistant to President Obama and clerked for Ninth Circuit Court of Appeals Judge Betty Fletcher retired U.S. Supreme Court Justice John Paul Stevens. A graduate of Cornell Law School, she worked for Wilmer Cutler Pickering Hale and Dorr before holding teaching and research positions at Fordham and New York University Law schools. She and her partner, law professor Meg Satterthwaite, have young twin sons.

Michael Fitzpatrick, an openly gay Obama nominee for the federal district court in Los Angeles, appeared before the Senate Judiciary Committee earlier this month and could receive a confirmation vote soon. Another nominee, Edward DuMont, has yet to receive a committee hearing.