U.S. Judge Robert L. Pitman of the United States District Court for the Western District of Texas
U.S. Judge Robert L. Pitman of the United States District Court for the Western District of Texas (Joel Salcido)

After an easy nomination process, Robert Pitman made Texas history on Dec. 16 when he was confirmed by the U.S. Senate, making him the state’s first openly gay U.S. district judge. Shortly after that confirmation vote, Pitman spoke with Texas Lawyer senior reporter John Council about being a first, how he won the confidence of Texas Republican Sen. Ted Cruz and why he’ll be sitting in both the San Antonio and Austin federal courthouses for the foreseeable future.

John Council: Congratulations on your recent confirmation. The fact that you are now Texas’ first openly gay federal judge has been mentioned repeatedly in news stories. However, I’ve never heard you speak about this. What do you make of making history?

Robert Pitman: I have mixed emotions about the fact that every time I see my appointment and confirmation discussed in the media, it also discusses that aspect. Because on one hand, I don’t want to be defined by one of many aspects of who I am. In fact, it’s a part of my personal life that’s never played a part in my professional life. On the other hand, though, if being a part of that discussion reassures the younger generation that there’s a place in public life for all sorts of people and that old prejudices have largely fallen by the wayside, then I’m grateful that my nomination and confirmation can play a part in that discussion. It’s not lost on me, having seen a movie this weekend about Alan Turing, who was a mathematician/codebreaker who made a great contribution in the Allied victory in World War II, that it was not that long ago that people like me could not openly play a part in public life. And in fact, he was persecuted and suffered many hardships as a result of that. So I will understand that I stand on the shoulders of people who came before me and were willing to take big risks by having been a part of the discussion. I’m grateful that we’ve come to a place where it wasn’t a great risk for me to do that. And in fact, it never came up during my nomination or confirmation process. I think that’s huge progress, and I am grateful that I came along in a place and at a time where I was the beneficiary of those who were not so lucky.

Council: Your résumé—which includes career federal prosecutor, U.S. magistrate judge and Western District U.S. attorney—more than qualified you to become a federal district judge. Did you ever fear that sexual orientation would be a barrier to your promotion in a very conservative state?

Pitman: Of course I was concerned initially about that. But those concerns were completely unfounded, and I, again, was very gratified that it really never came up. There are a lot of indicators that we’re making progress, and my nomination/confirmation is maybe one of many that give me hope.

Council: People who don’t know any better might be surprised that Texas’ Republican senators, John Cornyn and Ted Cruz —who rarely agree with President Barack Obama—were enthusiastic supporters of your nomination. In fact, Sen. Cornyn originally pushed for your nomination as U.S. attorney over a candidate chosen by Texas’ Democratic Congressional Delegation. How did you get in the good graces of the senior senator from Texas?

Pitman: Obviously, he could answer that better than I. But I think what became apparent early in the process both for this position and the position I held before was that the senators were interested in supporting someone who had the requisite background and who had a track record. I was in the unique position of having held relevant jobs where there was a real paper trail. I was on the bench as a magistrate judge for eight years and had been in the U.S. attorney’s office for many years. I think it gave them an opportunity to see my work and to know me over the years, and perhaps gave them a confidence in my ability to do the job.

Council: You met with the senators as part of this process and you also met with Sen. Cruz. How did that meeting go?

Pitman: It went well. He asked and expected appropriate questions about my background, my fitness to serve as a judge. Although neither senator asked me about any particular issue, they did their due diligence to make sure I had the experience and temperament to do the job.

Council: In many ways, you owe your confirmation vote to Sen. Cruz. He’s being credited with a maneuver toward the end of the Senate’s session that unintentionally allowed many of President Obama’s judicial nominations a final vote. What was that day like for you? And what was at risk had you not gotten a vote that day?

Pitman: As a dear friend of mine said at the beginning of this process—he predicted there would be many high highs and many low lows. And that proved to be the case. I had never been involved in politics before going through this process and hope never to go through anything like it again. The one thing you learn early in the process is that very little is about you. There are many moving parts, and you have to understand that your fate is largely determined by things having nothing to do with you. And even though it was apparent early on that my nomination was not a controversial one, there were a number of factors in play. That last weekend as the Senate was winding up its business, it became apparent that if we got through—especially the three Texas [judicial] nominees—it would be sort of right under the wire. Watching that unfold, let me just say, it’s much more interesting to watch things like that when you’re not as directly affected by the outcome. And it was really anticlimactic in the end, because after having gone through all of that, we were part of an agreement that resulted in a voice vote at the very end.

Council: So nobody had an opportunity to vote against you [laughing].

Pitman: Exactly. I was listening and I didn’t hear any [laughing].

Council: Your bench sat empty for seven years, and the Western District is bursting at the seams with cases. As I understand it, a new docket has been created for you. What’s your docket like? And have your Western District bench colleagues dumped some of their oldest and most difficult cases on you?

Pitman: I am very lucky to be joining a group of men and women who I have known a long time and have the greatest regard for. They have managed to allow me to have a very easy start. A couple of weeks ago, when my confirmation was looking imminent, the San Antonio judges and Austin judges met and asked whether I would be willing to take part of the Austin docket, because that is where there is a significant need on the civil side. Although my duty station is and will be San Antonio, for a time I will be taking a third of the Austin civil filings, and I will maintain a presence in Austin and San Antonio.

Council: Your background is primarily criminal, and you’ve seen a variety of civil cases as a magistrate judge. What kind of civil cases do you think will be most challenging for you?

Pitman: There’s no doubt that I will have a steep learning curve in the intellectual property arena—especially in patent cases. And it’s always been my policy to hire law clerks who are smarter and work harder than I do. So it will be my ambition to hire young lawyers who will help me possibly understand and deal with that part of the docket.

Council: As a prosecutor, you sent countless people to prison, and I’m sure you can cite the federal sentencing guidelines chapter and verse. But do you think there’s a place for empathy on the bench for criminal defendants?

Pitman: That’s a loaded question, one that many nominees are asked when seeking this position. I understand what people are getting at when they ask it, and my way of answering it is this. To the extent that question is asking whether or not you should take into account the circumstances and background of the defendant, then of course I do. And I believe the law and the guidelines allow and encourage that. I also think, however, there are a number of other dimensions to the sentencing process that you have to take into account, including social interests, public safety and the other interests that society has in holding people accountable. It’s not a rote process. And I think prosecutors have the same duty as gatekeepers to the system. That is something I always understood as a prosecutor and will always try to instill my process: understanding and appreciating where defendants are coming from and what we can do within the law to address their needs.

Council: This is the first time you’ll sentence criminal defendants with felonies. Is that going to be difficult for you?

Pitman: There’s no doubt that it will. You said a minute ago that I’ve sent hundreds or thousands of people to prison, and in fact I haven’t. I brought the charges that authorized judges to do that, and now I am one. If I were to name one thing I found most sobering about my new job, it’s that I will be the one at the end of the day who has to make the very difficult decisions about how to hold people accountable. Although I had many stresses and responsibilities in my former positions, I think that will be one that I will spend a lot of time reflecting on and making sure that I try to get right.

Council: When you were a magistrate judge, appeals of your decisions went to Austin’s two district judges. Now your papers will be graded by the U.S. Court of Appeals for the Fifth Circuit, arguably the nation’s most conservative appellate court. Will that change how you rule as a judge?

Pitman: No. I think the vast majority of decisions a district judge is called to make have to do with credibility and determinations applying the law in fairly clear circumstances. When that is not the case, I will certainly follow Fifth Circuit law. But I am not concerned about how that will be characterized in terms of ideology or where any of my decisions will fall on any scale.

Council: You will be replacing retired U.S. District Judge Royal Furgeson, a jurist many lawyers consider to be the quintessential Western District jurist. He sat all over the district, handled some extremely challenging cases and wasn’t afraid to be reversed by the Fifth Circuit—and lawyers loved him. Should lawyers should expect the same from Robert Pitman?

Pitman: It’s not lost on me that I have big shoes to fill. I hold Judge Furgeson in as high regard as anyone and learned a great deal from him when he was on the bench. If I could approximate the reputation that he had in the bar and in the community, I will consider myself to have been a great success.

Council: Ten years from now, what do you hope lawyers say about U.S. District Judge Robert Pitman?

Pitman: I hope that I have the reputation of being a judge who gave their clients a fair hearing, treated them and their clients with dignity and collegiality, and that I was the same Robert Pitman after 10 years on the bench that I was the day before I was confirmed. If that’s my legacy, I will have considered myself to have been successful.