Two conservative Christian groups sent letters this week to members of the Senate Judiciary Committee urging them to oppose the nomination of Michael Fitzgerald, an openly gay nominee for U.S. District for the Central District of California, because of his “extreme liberal activism.”
The committee unanimously advanced his nomination to the full Senate in a voice vote Thursday morning. Senators could still oppose Fitzgerald's nomination on the floor.
In separate letters obtained by The Advocate, FRCAction, the legislative arm of the Family Research Council, and the Traditional Values Coalition accused Fitzgerald of failing to acknowledge that his history of involvement with LGBT advocacy groups and causes could “pose a potential conflict of interest over his judicial duties,” in the words of FRCAction. The groups warned senators on the Democratic-controlled panel that their votes would be “scored” by the organizations.
“Fitzgerald’s record of liberal activism is one that rivals Supreme Court Justice Elena Kagan in its extremism,” said the letter from the Traditional Values Coalition sent Wednesday and signed by Andrea Lafferty, the group’s president. “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.”
Both the Family Research Council and Traditional Values Coalition have lobbied against LGBT rights including marriage equality, employment non-discrimination, and the repeal of the military’s “don’t ask, don’t tell” policy. The groups claim to promote “Judeo-Christian values” through research, lobbying and public outreach.
“Fitzgerald’s record for liberal activism is only matched by his taste for judicial activism, as his arguments in numerous cases and extracurricular activities among homosexual transgender organizations show a militant and aggressive predilection for innovation rather than a strict adherence to the rule of law,” continued the Traditional Values Coalition.
The letter sent Tuesday by FRCAction said, “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. This last organization worked to block the ROTC program from recruiting at Harvard because they opposed ‘Don’t Ask, Don’t Tell.’ 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.”
Fitzgerald, a Los Angeles attorney and former U.S. assistant attorney, was nominated by President Barack Obama in July and recommended by Senator Barbara Boxer of California. A graduate of Harvard College and the University of California, Berkeley School of Law, he received a “unanimously well qualified rating” from the American Bar Association.
The Family Research Council letter, signed by senior vice president Thomas McClusky, also mentioned Fitzgerald’s pro-bono representation in the 1990 case Buttino v. F.B.I., concerning a former F.B.I. agent who claimed he was dismissed from the bureau for being gay. Fitzgerald was asked about the case and his LGBT advocacy during a Senate Judiciary Committee hearing last month.
The letters against Fitzgerald mirror rhetoric used in an unsuccessful, last-minute campaign against Alison Nathan, an out lesbian confirmed to the Southern District of New York in a party-line 48 to 44 vote last month. In an awkwardly worded letter to senators, the Concerned Women for America said that Nathan, a lawyer in the New York solicitor general’s office and former associate White House counsel, demonstrated “a long history as political activism with Lesbian Gay Bisexual Transgender (LGBT)” that called into question her “impartiality and judicial temperament.” Senator Charles Schumer, who recommended Nathan for the seat, called the letter a "sneak attack" that showed "real bigotry."
If confirmed by the full Senate, Fitzgerald would become the fourth openly gay person with a lifetime appointment to the federal bench. The Senate has confirmed Nathan and J. Paul Oetken, both nominated by Obama for the Southern District of New York. Deborah Batts, who also sits on the Southern District, was appointed by President Bill Clinton in 1994. Edward DuMont, an openly gay Obama nominee for the U.S. Court of Appeals for the Federal District, was nominated in 2010 but still awaits a committee hearing.