President Barack Obama and Sens. John Cornyn and Ted Cruz are seldom aligned, but the two Republicans from Texas were lockstep with the president when he nominated Robert Pitman, who is openly gay, to the federal bench late last month.
Pitman’s uncontroversial selection—Cornyn called his sexuality “irrelevant”—represented Obama’s 11th nomination of an openly gay or lesbian lawyer to a federal district judgeship.
The president’s record on the issue—he’s seen 10 gay or lesbian lifetime-appointed judges confirmed—reflects both his declared mission to diversify the courts and the widespread cultural shift in acceptance of gays and lesbians in public life.
Obama appointed the first openly gay male judge, Paul Oetken, in 2011 for the U.S. District Court for the Southern District of New York. Nitza Quiñones Alejandro in Pennsylvania became the first out Latina lesbian to join the federal judiciary, and in June the Senate confirmed Darrin Gayles, the first openly gay male African-American judge, for the Southern District of Florida. Florida’s senators, Democrat Bill Nelson and Republican Marco Rubio—who is opposed to same-sex marriage—supported Gayles’ nomination.
“I can see in the past where it would have been an issue. Less today because the change in politics and society,” Sen. Lindsey Graham, a South Carolina Republican, told The National Law Journal. “As the polling numbers change, politicians change. Everyone says, ‘I’ve evolved on this issue.’ In other words, ‘I follow the polling.’ “
Before Obama’s presidency, there was only one openly lesbian federal judge. Obama’s record—which no previous administration has come close to — is nonetheless limited so far to federal district judgeships and the U.S. Court of Appeals for the Federal Circuit, which specializes in intellectual property, trade and government-employment issues. The president has yet to nominate an openly gay or lesbian judge to the regional federal appeals courts.
Still, Obama’s push for diversity will leave his imprint on the courts. Naming these judges to federal district courts has given the judiciary wider perspective and a foundation from which circuit judges—and possibly a Supreme Court justice—could emerge.
“Having more people to pick from makes that more foreseeable, sooner,” said Paul Smith, an openly gay Jenner & Block partner who leads the firm’s appellate and Supreme Court practice.
Smith, who won the landmark gay rights case Lawrence v. Texas in the Supreme Court in 2003, said he didn’t know what to expect when he attended Oetken’s confirmation hearing. “It was striking how little happened,” Smith said of when Oetken introduced his family to the senators. “His partner was in the audience and there was no issue made out of it.”
After Oetken’s confirmation, Sen. Charles Schumer turned his eye on the future — acknowledging, but playing down, the new judge’s sexuality. “What the history books will remember about Paul are his achievements as a fair and brilliant judge,” Schumer said.
Five of Obama’s gay and lesbian judicial appointments received unanimous confirmation votes. The Senate confirmed Judith Levy, formerly an assistant U.S. attorney, in March on a 97-0 vote for a seat on the U.S. District Court for the Eastern District of Michigan. At her confirmation hearing, in October, Levy introduced her partner and their daughters.
Levy was starting her family as she clerked in 1995 for Reagan-appointed U.S. District Judge Bernard Friedman, who in March struck down Michigan’s ban on same-sex marriage. Levy and Friedman remained close over the years, a Detroit-Free Press columnist wrote in a piece in March about the friendship.
Friedman focused the end of his gay-marriage decision on the children of same-sex partners. “It is the court’s fervent hope that these children will grow up ‘to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives,’ ” he wrote, quoting from the Supreme Court’s 2013 decision in Windsor v. United States.
Under Obama, six states—California, Florida, Illinois, Michigan, Oregon and Pennsylvania—now have their first openly gay U.S. district court judge.
“The president’s nominees embody an unprecedented commitment to expanding the racial, gender, sexual orientation, and experiential diversity of the men and women who serve on the federal bench,” White House counsel Neil Eggelston, a former Kirkland & Ellis partner, said in a written statement to The National Law Journal. “The president believes the third branch of government should reflect the rest of America and that doing so amounts to a stronger judiciary.”
Obama appointee Michael McShane in Oregon became the first openly gay judge to strike down a state’s same-sex marriage ban. Two other Obama-appointed judges struck down gay-marriage bans in Virginia and Utah; a third, in Ohio, ordered the state to recognize same-sex couples legally married in other states.
McShane, an Oregon county court judge who was confirmed to the federal bench in May 2013, ended his ruling with a personal reflection on the legacy of anti-gay sentiment in America.
“Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin,” McShane wrote.Bob Kabel, former chairman of the Log Cabin Republicans and counsel to Faegre Baker Daniels’ Washington office, said “it helps to have openly gay people any place that decisions are being made. I just think it’s important to know there are people in the room, whether that’s in a courtroom, or Congress, or in a department or agency.”
Five years ago, Kabel said he would have called Cornyn’s stance on Pitman a matter of bravery. “No longer,” he said. “It’s just sort of ho-hum.”
Obama nominated Pitman, the U.S. attorney for the Western District of Texas since 2011, to fill a vacancy in San Antonio that was created when U.S. District Judge William Furgeson took senior status. “It’s just vindication that those things don’t matter anymore,” said Furgeson, who retired last year. “We’re looking at the person, the experience and the record. That’s such a step forward.”
The 10 confirmed openly gay judges under Obama represent a very small slice of the nation’s 874 federal judgeships, and of the 272 judicial confirmations Obama has had so far in his presidency.
But there have been a few instances where Obama’s gay judicial picks were rejected. The Senate in 2010 stalled on Obama’s first openly gay male nominee, Edward DuMont, then an appellate partner at Wilmer Cutler Pickering Hale and Dorr. DuMont never got a hearing for a spot on the Federal Circuit, prompting public speculation his sexuality was at the center of the block on his nomination.
University of Missouri School of Law associate professor Dennis Crouch called the holdup a “shame” on his Patently O blog. Still, Crouch pointed out that homosexuality issues arise occasionally in federal employment cases in the Federal Circuit.
DuMont’s nomination languished for 18 months, and he eventually withdrew from consideration in 2011. He became California’s solicitor general. DuMont did not return calls seeking comment.
Sen. Rubio torpedoed Miami-Dade Circuit Judge William Thomas’ nomination to the federal bench in 2013, with some in the South Florida legal community believing it was because Thomas was gay. But when Obama tapped another black gay judge—from the very same state judicial district in Miami—it was Gayles, and Rubio did not object.
Kabel said a generation of openly gay lawyers now have the experience needed for a spot on the federal bench. “I think there will be more and more who will be credentialed and be in the pool to be considered,” he said.
Contact Todd Ruger of The National Law Journal at firstname.lastname@example.org, John Council of The Texas Lawyer at email@example.com and John Pacenti of Daily Business Review at firstname.lastname@example.org.