Senate confirms first openly gay man to district court

The U.S. Senate Monday evening (July 18) approved the confirmation of openly gay attorney J. Paul Oetken to serve as a U.S. district court judge.

Senate Judiciary Committee Chairman, Senator Patrick Leahy (D-Vt.) called Oetken a “superbly” qualified candidate and noted his nomination was historic in that he is the first openly gay man to be nominated a federal district court judge.

The vote was 80 to 13, with seven senators not voting.

Senator Charles Grassley (R-Iowa), ranking minority leader of the Senate Judiciary Committee, made clear from the beginning of his remarks on the floor that the Senate would “move forward” with another nomination to the federal court and that he would vote for Oetken.

Obama nominated Oetken to become one of 44 judges serving on the U.S. District Court for Southern District of New York, the federal district court that encompasses Manhattan. With his confirmation, he becomes the second openly gay judge in that federal district –along with Deborah Batts. He becomes the third openly gay federal judge in the country —along with Emily Hewitt of the U.S. Court of Federal Claims. Batts and Hewitt were both appointed by President Clinton.

Oetken is not President Obama’s first openly gay nominee to the federal bench. In April of last year, Obama nominated Edward DuMont to a position on the U.S. Court of Appeals for the Federal District. If approved, DuMont would be the first openly gay appointee to a federal appeals court. But DuMont’s nomination—along with that of many others—has been tied up by Republican opposition in the U.S. Senate.

But in his remarks on the Senate floor Monday, Grassley denied that Republicans are attempting to block Obama’s nominees to the federal court. He noted that the Committee has advanced the nominations of 62 of 86 nominees. But he did not mention that just last week, Grassley himself voted to advance the nomination of openly lesbian attorney Alison Nathan, saying it would give the full Senate another opportunity to scrutinize her qualifications. Republican colleague, Senator Tom Coburn (R-Okla.) submitted a statement saying he would oppose Nathan’s nomination.

Oetken was rated as qualified by a unanimous vote of the American Bar Association committee that provides to the Senate its recommendations concerning judicial nominees. Nathan received a “qualified” rating from a majority of the ABA committee, but an “unqualified” rating from a minority.

When Oetken went before the Judiciary Committee in March, he received no questions from Republican senators and no questions about anything gay-related. Grassley did submit a question to Oetken in writing, asking him about a brief he wrote for the National Gay and Lesbian Bar Association. The brief, submitted to the U.S. Supreme Court, supported the overturning of laws prohibiting same-sex sexual relations. The case was Lawrence v. Texas and, in 2003, a majority of the Supreme Court did overturn such laws. Oetken’s brief argued that the courts should use the strictest form of scrutiny when examining laws that treat gay people differently.

“Do you personally believe that government classifications based on sexual orientation deserve a heightened level of scrutiny?” asked Grassley.

Oetken responded that he had “not expressed a personal view on this subject” and that the “arguments in the amicus brief that I co-authored in Lawrence v. Texas were arguments made on behalf of clients.”

“Although I believed that there was a good faith basis in Supreme Court precedent for making those arguments [in the brief], they do not necessarily reflect how I would approach these issues as a district judge,” wrote Oetken.

“The Supreme Court in Lawrence v. Texas did not decide that case under the Equal Protection Clause but rather under the Due Process Clause,” continued Oetken, “and it therefore did not decide the issues addressed in my amicus brief in that case.”

Oetken, 46, was born in Kentucky and grew up in Iowa. He graduated from the University of Iowa and Yale Law School. He served as associate counsel to the President in the Clinton White House and served as an attorney-advisor with the Clinton Justice Department’s Office of Legal Counsel. He currently works as senior vice president and associate general council for Cablevisions Systems Corporation. Oetkin served as a clerk for former Justice Harry Blackmun, one of the U.S. Supreme Court’s more liberal justices.

Retired U.S. District Court Chief Judge Vaughn Walker recently revealed that he has been in a relationship with a man for the past 10 years. He retired from the bench in February of this year after serving 22 years and presiding over one of the most highly publicized gay-related trials in history, over California’s same-sex marriage ban. Walker did not publicly confirm his sexual orientation until after he retired, in response to a question from reporters.

Among the Republican Senators voting for Oetken were Scott Brown of Massachusetts, Saxby Chambliss of Georgia, and Susan Collins and Olympia Snowe of Maine.

Texas Senator Kay Bailey Hutchison initially voted aye, but then came back a few minutes later and changed her vote to no.

© 2011 by Keen News Service. All rights reserved.


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