Openly Gay Judge Up for Confirmation to Federal Court

An openly gay nominee for the federal bench will be the subject of a confirmation in the United States Senate on March 16, reported the Washington Blade on March 13. If he is confirmed, J. Paul Oetken would be the first openly gay man to assume federal judgeship.

Another federal judge, U.S. District Court Judge Vaughn Walker, is reportedly gay, the Blade noted. A claim that Walker is gay was published in The San Francisco Chronicle, though Walker has declined to verify that report.

Walker heard the suit against Proposition 8 that claimed the anti-gay California ballot measure violated the U.S. Constitution. Walker agreed, ruling against proponents of the measure, which voters narrowly approved in 2008. Proposition 8 rescinded marriage rights for gay and lesbian families in that state.

Walker was instantly hit with a barrage of criticism from anti-gay organizations, including the National Organization for Marriage, which was a leading proponent of the anti-gay measure.

"Here we have an openly gay federal judge, according to the San Francisco Chronicle, substituting his views for those of the American people and of our Founding Fathers who, I promise you, would be shocked by courts that imagine they have the right to put gay marriage in our Constitution," NOM chair Maggie Gallagher declared, according to an Aug. 9, 2010 Associated Press article.

The American Family Association's Bryan Fischer attempted to initiate impeachment proceedings against Walker, based on the claim that if Walker is gay himself, he ought to have recused himself from the case. But others pointed out that a gay judge would be no more likely to be biased than a straight one.

"Under the logic of the people challenging the judge's fitness to rule on a case involving gay rights because he or she was gay, one would have to find a eunuch to serve on the case, because one could just as easily argue that a heterosexual judge couldn't rule on it either," said Samford University's William G. Ross.

Oetken has been nominated by President Obama to serve for the Southern District of New York, the Blade article said. The nomination was made at the recommendation of Sen. Chuck Schumer, who will head up the confirmation hearing.

"From 1999 to 2001, Oetken was associate counsel to President Clinton and specialized in First Amendment issues, presidential appointments, ethics, civil rights, and legal policy," the Blade article said. Oetken has also been active as an advocate for GLBT equality issues. The Blade noted that Oetken helped to write a friend-of-the-court brief for the 2003 Supreme Court case that put an end to anti-gay "sodomy" laws.

Another openly gay nominee to the federal bench, Edward DuMont, has also been nominated by Obama, the article noted. The March 16 hearing will also include three other nominees, but DuMont is not slated to be among them.

In 1994, then-President Clinton nominated an openly lesbian candidate, Deborah Batts, to serve as a federal judge. Batts was confirmed.

When U.S. Supreme Court Justice Elena Kagan was nominated last year, rumors abounded that Kagan was a lesbian. Kagan has never confirmed those reports. She was confirmed and is the newest member of the Supreme Court.