Two Openly Gay Men, Hoping to Serve on the Federal Bench

President Obama has nominated two openly gay men to federal courts. If confirmed, J. Paul Oetken and Edward C. DuMont would become the first openly gay men to serve on the federal bench.

Oetken, who has been nominated to the United States District Court for the Southern District of New York , has incredible credentials. He holds a law degree from Yale Law School and is currently a senior vice president and associate general counsel at Cablevision.  Prior to Cablevision, he clerked for a federal district court, a federal appeals court and for Supreme Court Justice Harry A. Blackmun, worked for the Justice Department and the White House counsel’s office and worked in private practice for four of years.

Dumont, who has been nominated to the United States Court of Appeals for the Federal Circuit, has equally impressive credentials. DuMont has a J.D. from Stanford Law School; he has been with the law firm WilmerHale since 2002. He also served as a clerk on the 7th circuit court of appeals and as Assistant to the Solicitor General, where he tried 18 cases before the United States Supreme Court.  With qualifications like these, one would hope they would have a smooth confirmation.

The first two years of Barack Obama’s presidency has seen a number of high profile successes, but the GOP has managed to block over 60% of his judicial nominees, which means the confirmation rate (less than 40%) is at historic lows. That staggering number becomes even more shocking when compared to George W. Bush, who received a 78% confirmation rate. So much for the Republican cries for the need for an up or down vote. Even though the recent rules change in the Senate prohibits anonymous holds on the nominations, holds can still be placed for any reason.

Historically, nominations that break barriers have been controversial. The first African-American judicial nominee was Robert Heberton Terrell, who served as a justice of the peace in the District of Columbia by Theodore Roosevelt’s appointment in 1901 and later as a District of Columbia municipal court judge through William Taft’s appointment in 1910. Terrell, a former slave, was objected to on racial grounds; reasoning that would not be tolerated today. Similarly, the first woman to serve on the federal bench was Genevieve Cline. Calvin Coolidge appointed Cline in 1928 to the U.S. Customs Court, but she received opposition based on her gender. Rather than looking at her years of expertise in U.S. customs law, powerful men were scared by the proposition of equality.

Oetken and DuMont’s situations are slightly different. While both were nominated in January, this is Oetken’s first nomination, but it is actually DuMont’s second.  DuMont was first nominated in April and re-nominated in January because the Senate failed to take action.

The plain fact is, Oetken and DuMont are exceptionally qualified. But just like other historic barrier-breaking nominees, there will likely be some opposition to these nominations.  Opposition to the nomination will not be based on reason or rationality; it will solely be homophobia. And homophobia should not be the reason Oetken and DuMont are not confirmed to the bench. If they receive votes in the Senate, they will likely be confirmed.  The Senate Judiciary Committee should commit to holding fair and speedy hearings, focusing on Oetken and DuMont’s legal qualifications, not their personal lives. Be sure to sign the petition and let the members of the Senate Judiciary Committee know that we support these nominations.

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