Senate Easily Confirms Openly Gay Judicial Nominee

J. Paul Oetken

I have written before, most recently here and here, about the crisis caused by the growing vacancy rate in the federal courts, mostly due to Republican intransigence.  Last week, Senator Patrick Leahy, Chairman of the Judiciary Committee, which continues to approve nominations only to have them stall on the Senate floor, complained about the Senate's recalcitrance, with action taken on only four nominees while more than 90 vacancies remain.  GOP opposition to efforts to diversify the federal bench, as the American Constitution Society has pointed out, has been particularly strenuous.  So, it is encouraging to report that yesterday, J. Paul Oetken became the first openly gay man to be confirmed to be a federal judge.  The Senate vote was by a lopsided 80-13, and as Dana Milbank noted, what was so remarkable about it "was that it was utterly unremarkable."

Senate Slowly Makes Progress On Judicial Nominations, Confirming First Openly Gay Man To Federal Bench

Cross-posted from American Constitution Society's blog, originally published on July 18, 2011.

The Senate after a typically slow process confirmed J. Paul Oetken as a U.S. District Judge for the Southern District of New York. Oetken is the first openly gay man to be confirmed to a seat on the federal bench.


Oetken, a lawyer who has practiced in the private and public sectors, including time in the Clinton administration’s White House Counsel’s Office, was reported favorably by the Senate Judiciary Committee more than three months ago, a fact Sen. Judiciary Chairman Patrick Leahy lamented today.

Leahy said Oetken (pictured) should have been confirmed quickly after his vote out of the Senate Judiciary Committee. “Yet,” he said, “like so many of President Obama’s qualified, consensus nominees, Mr. Oetken has been stuck without cause or explanation for months on the Senate’s Executive Calendar.”

But Senate Republicans are not interested in budging from their obstinate stance against Obama’s judicial selections.


Leahy noted, “Federal judicial vacancies around the country still number too many, and they have persisted for too long. Whereas the Democratic majority in the Senate reduced vacancies from 110 to 60 in President Bush’s first two years, judicial vacancies still number 91 two and a half years into President Obama’s term.”

The president’s efforts to diversify the federal bench are especially drawing Republican opposition, some have noted. For example, Wisconsin’s newest senator, Ron Johnson, has continued to block University of Wisconsin law professor Victoria Nourse’s nomination to the U.S. Court of Appeals for the Seventh Circuit. Her father-in-law, nationally recognized federal appeals court Judge Richard Cudahy addressed Nourse’s situation during the ACS 2011 National Convention, saying that the Senate is mired in politics and leaving the bench’s oldest judges to carry the heaviest burden among the federal judiciary, which, as Sen. Leahy noted, is beset with too many vacancies.

Despite the fraught judicial confirmations process,  D’Arcy Kemnitz, executive director of the National LGBT Bar Association, noted the president’s efforts to diversify the judiciary.

“Further hopes to diversify the bench are still in process,” she said. “Alison Nathan, a former associate White House counsel and openly gay woman, was also nominated to the U.S. District Court of Southern New York by President Obama in March. Her nomination was approved by the Senate Judiciary Committee last week, and will now be moved to the Senate to be voted on in the near future.”

Sen. Charles Schumer lauded the confirmation, saying, “Oetken is the first openly gay man to be confirmed as a federal judge and to serve on the federal bench, he will be a symbol of how much, we have achieved as a country in just the last few decades. And importantly, he will give hope to many talented young lawyers, who until now, thought their paths might be limited because of their sexual orientation,” towleroad reports.

For more information about the president's efforts to fill court vacancies, see JudicialNominations.org.