New Jersey, which has long been at the forefront in terms of extending legal protections to gays and lesbians, now has fallen behind in one important gay-inclusiveness indicator: openly gay federal judges have been confirmed or nominated in eight other states, but not here.
President Obama has nominated 10 gay and lesbian candidates to district court seats, and one to the U.S. Court of Appeals for the Federal Circuit. The nominations have led to a topsy-turvy situation where conservative standard-bearers Senators Ted Cruz, R-Texas, and Marco Rubio, R-Fla., have advanced gay candidates for the federal bench, but none have seen the light of day in gay-friendly New Jersey.
Advocates for the state’s gay and lesbian community are aware of the lack of sexual orientation diversity on the state’s 37-member federal bench, but are confident the situation will change eventually.
Texas is the latest state where an openly gay judge has been nominated. Robert Pitman, the U.S. attorney in San Antonio, was nominated to the federal bench June 24. Other gay judges have been confirmed in district courts in Florida, Illinois, Pennsylvania, Michigan, New York, California and Oregon.
Pitman’s nomination received the support of Cruz and Texas’ other Republican senator, John Cornyn, although neither is known for supporting the gay community. Both Cruz and Cornyn have spoken out against gay marriage and legislation to ban anti-gay discrimination. Cruz, in particular, surprised some with his support of Pitman’s nomination, given the senator’s statements that bakeries shouldn’t have to sell wedding cakes to same-sex couples if gay marriage violates their religious principles.
In Florida, Darrin Gayles likewise won confirmation to the federal bench with the support of both of the state’s senators. Sen. Bill Nelson, a Democrat, has endorsed gay marriage, while Rubio, the state’s other senator, opposes gay marriage and believes gay couples should not be foster parents.
In New Jersey, on the other hand, Democratic Senators Robert Menendez and Cory Booker both support gay marriage. Menendez co-sponsored the measure to repeal the military’s “Don’t Ask, Don’t Tell” policy on gay soldiers, and Booker officiated at same-sex weddings while serving as mayor of Newark.
On June 26, Obama nominated Madeline Cox Arleo, a U.S. magistrate judge since 2000, for the U.S. District Court for the District of New Jersey seat created when Dennis Cavanaugh went on senior status in January. Local gay-rights advocates praised the nomination of Arleo, while holding out hope that a lesbian, gay, bisexual or transgender candidate will someday be nominated to the state’s district court.
Arleo was “a wonderful selection” for the district court, said Robyn Gigl, chair of the New Jersey State Bar Association’s Lesbian, Gay, Bisexual and Transgender Rights Section.
The advancement of gay candidates for the federal bench in other states is “in a very nice way, surprising,” but there’s no reason to think such candidates were shut out of consideration in New Jersey, Gigl said.
Thomas Prol, who is first vice president of the state bar association, and the association’s first openly gay officer, said it’s “unfortunate” that New Jersey has yet to see any gay judges in federal court, “especially considering the state’s longstanding history as a national leader in the advancement of LGBT rights and protections.” Prol said he is “hopeful that New Jersey’s U.S. senators will make it a top priority to nominate a qualified, openly LGBT judge to the federal bench as soon as possible.”
“The time has come. People gain confidence in, and have respect for, a system when they feel they are represented and they see themselves reflected in it,” Prol said.
Steven Goldstein, founder and chairman emeritus of gay advocacy group Garden State Equality, said he “would like to see more openly gay people in public service in all three branches.” But Goldstein said he was “not overly concerned” that New Jersey was behind Texas and Florida in this one respect.
Noting that he considers New Jersey, along with California, to have the best civil rights protections for gays and lesbians in the nation, Goldstein said the state’s failure to produce any openly gay federal judges is “not something that I personally lose sleep over at night. What matters more to me is that we have judges, whether LGBT or straight, that believe in equality, and the federal bench has obviously taken a dramatic turn in that regard.”
Booker will be guided by “diversity in race, ethnicity, work experience—as well as life experience” when formulating positions on future candidates for the federal bench, his press secretary, Monique Waters, said.
“It’s critical that anyone nominated to serve on the federal court for New Jersey represent the diversity of the individuals in our state, including the LGBT community,” Waters said.
Menendez’s office did not respond to a reporter’s inquiries for this article.
William Singer of Singer & Fedun in Belle Mead, who is general counsel to the National LGBT Bar Association, an affiliate of the American Bar Association, said, “It always struck me as odd that New Jersey has few, if any, openly gay judges on the state or federal level.” Singer said there are a handful of state Superior Court judges in New Jersey who are openly gay but he knows of none who revealed their sexual orientation before their confirmation.
Judicial nominations are “so caught up in politics,” said Singer, who noted that Obama’s nominations of gay judges were all in his second term, after he publicly changed his position on gay marriage.
Gigl said the gay community has yet to exert the political clout required to lobby public officials on judicial nominations.
“It’s only in the last 10 years that the LGBT community in New Jersey has become a political force. It’s not like we have been able to elect a lot of LGBT candidates. I think it’s going to come,” she said. •
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