Obama Names 4th LGBT Judicial Nominee

Michael Fitzegerald becomes President Obama's

4th openly LGBT nominee to the federal judiciary

Wow! Just days after Paul Oetken became the first openly gay man was confirmed as a U.S. District Court judge to the Souther District of New York, President Obama has named a 4th openly LGBT individual to become a federal judge with lifetime appointment. He is Michael Fitzgerald and joins Ali Nathan, J. Paul Oetken and Ed Dumont as openly LGBT federal judicial nominees of the Obama administration. The Oetken nomination has passed the Senate, the Nathan nomination is on the floor and there is no scheduled action on the Dumont nomination planned.

Here's the press release from the White House on the Fitzgerald nomination:

THE WHITE HOUSE

Office of the Press Secretary

_________________________________________________________________________________

FOR IMMEDIATE RELEASE

July 20, 2011

President Obama Nominates Michael Walter Fitzgerald to the U.S. District Court for the Central District of California

WASHINGTON, DC – Today, President Obama announced his nomination of Michael Walter Fitzgerald to the United States District Court for the Central District of California. 

"I am honored to nominate Michael Walter Fitzgerald to the United States District Court," President Obama said.  "His impressive career stands as a testament to his formidable intellect and integrity.  I am confident he will serve the people of California with distinction on the District Court bench."

Michael Walter Fitzgerald: Nominee for United States District Judge for the Central District of California

Michael Walter Fitzgerald has been a named partner at the law firm of Corbin, Fitzgerald & Athey LLP in Los Angeles, California since 1998, where he handles civil and criminal litigation in both federal and state courts.   Previously, he worked at the Law Offices of Robert L. Corbin PC from 1995 to 1998 and at the law firm of Heller, Ehrman, White & McAuliffe from 1991 to 1995.  Between 1988 and 1991, Fitzgerald served as an Assistant United States Attorney in Los Angeles.  Upon graduation from law school, he clerked for the Honorable Irving R. Kaufman of the United States Court of Appeals for the Second Circuit.  Fitzgerald received his J.D. in 1985 from the University of California, Berkeley School of Law (Boalt Hall) and his A.B. magna cum laude in 1981 from Harvard University.

### 

1st Openly Gay U.S. District Court Judge Approved By Senate

As I blogged about earlier this year, J. Paul Oetken is the first openly gay man to be nominated for a lifetime federal judgeship. On Monday, the United States Senate approved Oetken's nomination by a vote of 80-13 to a seat on the Southern District of New York, which covers New York City and is one of the busiest and prestigious federal courts in the country. Amazingly, Oetken will join the same bench that the nation's only openly lesbian federal judge sits on. Deborah Batts is an African American lesbian judge who was nominated by President Clinton and approved by the Senate in 1994. All 13 Senators voting No o Oetken's nomination were Republicans.

Chris Geidner reports:

Sen. Charles Schumer (D-N.Y.), who has been supporting the nomination, praised Oetken's background and experience on the Senate floor shortly before the vote, saying "His confirmation will only improve the workings of one of the best and one of the busiest courts in the country."

Of Oetken's place as the first, Schumer said, "At this moment, Paul is not just an excellent candidate, as 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."

Before the vote began, Sen. Chuck Grassley (R-Iowa) -- the ranking Republican on the Judiciary Committee -- also announced that he would be voting for Oetken, who was born in Iowa.

When the vote did come, all Democrats voting approved the nomination, with Sen. Kay Hagan (D-N.C.) the sole Democrat not voting. Moreover, a majority of the Senate Republican caucus -- 28 members -- voted to approve the nomination, with 13 Republicans opposing the nomination and six members not voting.

The "no" votes came from Sens. Roy Blunt (R-Mo.), John Boozman (R-Ark.), Thad Cochran (R-Miss.), Mike Crapo (R-Idaho), Jim DeMint (R-S.C.), Orrin Hatch (R-Utah), Kay Bailey Hutchison (R-Texas), Mike Lee (R-Utah), Mitch McConnell (R-Ky.), Jerry Moran (R-Kan.), James Risch (R-Idaho), Pat Roberts (R-Kan.) and Roger Wicker (R-Miss.). The Republicans not voting were Sens. James Inhofe (R-Okla.), Lisa Murkowski (R-Alaska), Rand Paul (R-Ky.), Marco Rubio (R-Fla.), Pat Toomey (R-Pa.) and David Vitter (R-La.).

This is great news. Someone should ask all the Republican presidential candidates whether they would nominate an openly LGBT person to a federal judgeship. President Obama has also nominated an out lesbian, Ali Nathan, to a federal judgeship as well. That nomination is now pending on the Senate floor.

BREAKING: 9th Circuit Kills DADT (Again)

Wow! A (admittedly decidedly liberal) 3-judge panel of the 9th U.S. Circuit Court of Appeals has unanimously lifted a stay against the U.S. Government from enforcing "Don't Ask, Don't Tell" in the case Log Cabin Republicans v. United States.

Here's the text of the order filed today:

Filed order (ALEX KOZINSKI, KIM MCLANE WARDLAW and RICHARD A. PAEZ) The Clerk shall amend the docket to reflect that Leon E. Panetta, Secretary of Defense, is substituted for Robert M. Gates, Secretary of Defense, as an appellant/cross-appellee. See Fed. R. App. P. 43(c)(2). Appellee/cross-appellant’s motion to lift this court’s November 1, 2010, order granting a stay of the district court’s judgment pending appeal is granted. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (stating standard); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (same). In their briefs, appellants/cross-appellees do not contend that 10 U.S.C. § 654 is constitutional. In addition, in the context of the Defense of Marriage Act, 1 U.S.C. § 7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. See Golinski v. U.S. Office of Pers. Mgmt., No. C 3:10-00257-JSW (N.D. Cal.) (Doc. 145, July 1, 2011) (“gay and lesbian individuals have suffered a long and significant history of purposeful discrimination”); Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011) (“there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities”). Appellants/cross-appellees state that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay. Appellee/cross-appellant’s alternative request to expedite oral argument is granted. The Clerk shall calendar this case during the week of August 29, 2011, in Pasadena, California. Briefing is completed.

And here's Legal Eagle Chris Geidner explaining what it means:

DADT cannot be enforced, per the order, unless the government gets a stay of the order from either the Ninth Circuit of the U.S. Supreme Court pending an appeal of today's decision.

Cynthia Smith, a Department of Defense spokeswoman, tells Metro Weekly that Pentagon officials "are studying the ruling with the Department of Justice" but added, "We will of course comply with orders of the court, and are taking immediate steps to inform the field of this order." 

The three-judge panel -- Judges Alex Kozinski, Kim Wardlaw and Richard Paez -- based the decision to lift the appellate court's earlier stay of Phillips's order pending the appeal of the LCRcase is based, the judges write, because, "The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay."

Among the citations by the court is the July 1 filing in Karen Golinski's federal case seeking health insurance benefits for her wife and the related Feb. 23 letter from Attorney General Eric Holder declaring that he and President Barack Obama had decided that heightened scrutiny applies to classifications -- such as DADT.

The judges also note that "the process of repealing Section 654 [-- the DADT law --] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer." Smith echoed this fact, writing to Metro Weekly, "[I]mplementation of the DADT repeal voted by the Congress and signed in to law by the President last December is proceeding smoothly, is well underway, and certification is just weeks away."

You will recal DADT was also not in effect worldwide or 8 days last fall when the Log Cabin Republicans first won an injunction against the government from federal judge Virginia Phillips. Now they have won at the appellate level as well on the question of the stay. The oral arguments about the merits of the case will be heard on August 29th. The government can ask for an en banc panel (11-judge panel) of the 9th Circuit or ask the US Supreme Court for a stay on the latest injunction against the enforcement of DADT..

It will be interesting to see what they do because the statute in question should be moot in a few weeks anyway when the DAT repeal is certified. However, there are some questions about whether sexual orientation will be a category of non-discrimination (which the lawsuit asks for but the legislation does not contain) and also whether the Uniform Code of Military Justice will include consensual sodomy (there is legislation in this year's Defense Authorization bill to repeal the UCMJ sodomy language).

Judge Ware To Rule On Prop 8 Motion To Vacate Tomorrow

Federal judge James Ware, chief judge of the U.S. District Court for the Northern District of California, says he will rule tomorrow on a desperate motion to vacate last year's decision in Perry v. Schwarznegger striking down Proposition 8 as unconstitutional because the federal judge who issued it, Vaughn Walker, is openly gay and should have disclosed that fact at the time. Walker was previously chief judge of the same district but retired at the end of February 2011.

The motion by the heterosexual supremacist proponents of Proposition 8 has been widely ridiculed by the vast majority of legal experts and on the editorial pages of major newspapers.

It should be a delightful to read Judge James Ware's decision tomorrow. In other news, the judge has also said that he will deny the motion of the proponents to attempt to collect all the videos of the trial's witnesses and order them destroyed. Our side is arguing that the testimony is  a public record (the transcripts are available from the court) and that the entire video record should be released. There is some important, powerful testimony from expert witnesses explaining the nature of marriage and demolishing the arguments of the heterosexual supremacists that they would dearly not like to get into public view. I dearly hope the videos of the Prop 8 trial "leak" at some point in the future.

Celebrity Friday: Goodwin Liu Withdraws Nomination

Goodwin Liu, Professor of Law at University of California, Berkeley has written President Obama, withdrawing his name from consideration for a seat on the 9th U.S. Circuit Court of Appeals after Republicans successfully filibustered his nomination on the floor of the United States Senate on May 19th.

The text of the letter is here:

Dear Mr. President:


I have been deeply honored to be your nominee to the United States Court of Appeals for the Ninth Circuit. The nomination has been a tremendous source of pride for my family and community, and it would be a great privilege and responsibility to serve our country as a member of the judiciary. 


In light of last week's unsuccessful cloture vote, however, I respectfully ask that you withdraw my nomination from further consideration by the United States Senate. With no possibility of an up-or-down vote on the horizon, my family and I have decided that it is time for us to regain the ability to make plans for the future. In addition, the Judicial Council of the Ninth Circuit has noted the "desperate need for judges" to fill current vacancies,  and it is now clear that continuing my nomination will not address that need any time soon.


I am profoundly indebted to you for your confidence in me and to the many people wh workd tirelessly in support of my nomination. Thank you for this great honor and opportunity


Sincerely,


Goodwin Liu

Sometimes the bad guys win. Interestingly, President Obama has now nominated a judge named Morgen Christen from Alaska put on that state's Supreme Court by Governor Sarah Palin for the 9th Circuit. It will be interesting to see what response she gets from Senate Republicans!

Senate Refuses To End Debate On Liu Nomination 52-43

The United States Senate has killed the nomination of Goodwin Liu to join the 9th U.S. Circuit Court of Appeals by refusing to end debate by a vote of 52-43.

It is President Obama's first defeat on a judicial nomination.

It is the first time in more than six years the Senate has successfully filibustered a judicial nominee and culminates nearly 15 months of partisan bickering over Liu.    

Senators have shied away from blocking judicial nominees since 2005, when a group of seven Democrats and seven Republicans known as the Gang of 14 stuck a deal decreeing judicial filibusters appropriate only in “extraordinary circumstances.”  

 Senate Democrats and Republicans clashed sharply Thursday over whether Liu’s nomination met that threshold.

Democrats argued Liu’s legal philosophy falls well within the mainstream and touted the nominee's impressive academic credentials.

Republicans said Liu’s writings and remarks endorse judicial activism and portray him as a liberal ideologue.

"He is unfit to serve as a United States judge," said Sen. John Cornyn (R-Texas.) "His activist views of the laws are troubling. I am left with no choice but to fight his confirmation with every tool at my disposal.”

Assistant Majority Leader Dick Durbin (D-Ill.) said he believes Republicans are attempting to block Liu in the hopes that they will win the 2012 presidential election and be able to stack the courts with their own nominees.

"For many on other side of the aisle they are guided by advisers that say, ‘Keep as many of the posts open as long as possible,’" accused Durbin. "They say help is on the way in the form of the next election.

It's a very sad day.

Goodwin Liu Cloture Vote Set For Thursday

Finally! The United States Senate is poised to vote Thursday on ending debate on the nomination of Goodwin Liu to the 9th U.S. Circuit Court of Appeals. MadProfessah has been following the process of this nomination very closely, since it was first made last Spring. Republicans in the Senate killed the nominations of Liu to the 9th U.S. Circuit and Ed Chen to the U.S. Northern District of California right before the November 2010 election.

When the 112th Congress convened in January 2011, President Barack Obama re-nominated both Liu and Chen and last week the United States Senate confirmed Chen by a vote of 56 to 42.

Majority Leader Harry Reid filed a cloture vote on Tuesday afternoon which means that sometime on Thursday a vote will be held to end debate on the Liu nomination. Liu, 40, if approved to the appellate court, could become a likely Supreme Court nominee in a 2nd Obama administration. He is extremely well-qualified, personable and has an amazing life story.

Many, many progressive organizations are urging people to contact their Senators to vote in favor of the Liu nomination. Here's an excerpt of what Alliance for Justice has to say about Liu's nomination:

Goodwin Liu is extremely well qualified to be a circuit court judge. 

• He has sterling academic qualification. Liu attended Stanford University, graduating Phi Beta Kappa in 1991.  He was co-president of the student body and the recipient of the Lloyd W. Dinkelspiel Award, the University’s highest honor for outstanding service to undergraduate education.  He went on to receive his M.A. at Oxford University as a Rhodes Scholar in 1993.  He later graduated from Yale Law School in 1998, where he was an editor of the Yale Law Journal.
•  He received the highest possible rating from the ABA: “unanimously well-qualified.”
• Liu has broad experience in the academic, public and private sectors, providing the varied experience and perspectives that make a great judge. He served in the public sector at the Corporation for National Service and the U.S. Department of Education, and practiced law in the private sector at O’Melveny & Myers. He currently is Associate Dean and Professor of Law at University of California Berkeley School of Law (Boalt Hall). 

Goodwin Liu is a mainstream nominee with strong support from across the ideological spectrum, including Republican lawyers and academics.

• Liu’s views are well within the legal mainstream and are not ideological. For example, his academic writings include support for charter schools and school vouchers.
•  He has won strong praise from individuals representing a wide variety of ideologies, interests, and viewpoints: 
•  Kenneth Starr, former Whitewater prosecutor and appeals court judge called Liu “a person of great intellect, accomplishment, and integrity,” and “an extraordinarily qualified nominee.” 
• Former Rep. Bob Barr (R-Ga.) said Liu’s writing “reveals his commitment to the Constitution.”
• Former Congressman Tom Campbell (R- Calif.) said that “Liu will bring scholarly distinction and a strong reputation for integrity, fair-mindedness, and collegiality to the Ninth Circuit.”
• Richard Painter, who worked on the confirmations of John Roberts and Samuel Alito as President George W. Bush’s chief ethics counsel, wrote that Liu is an “exceptionally qualified, measured, and mainstream nominee” who the Senate should “vote to confirm.”
•  Christopher Edley, Dean of the University of California, Berkley, Law School, said that Liu “has wonderful values, but at the end of the day, he’s not ideological.”
• Senator Dianne Feinstein (D-Calif.) noted, “[h]e’s as sharp as they come, with a kind demeanor and a good temperament . . . [a]nd he’s someone who has earned the broad respect of his colleagues on the left and the right.” Senator Barbara Boxer (D-Calif.) echoed these sentiments, stating, “He is a proven authority on constitutional law with a keen intellect.”
• A bipartisan group of education policy experts, wrote that, “… his record demonstrates the habits of rigorous inquiry, open-mindedness, independence, and intellectual honesty that we want and expect our judges to have. His writings are meticulously researched and carefully argued, and they reflect a willingness to consider ideas on their substantive merits no matter where they lie on the political spectrum. Moreover, we are confident in Professor Liu’s ability to decide cases based on the facts and the law, regardless of his policy views. His scholarship amply demonstrates that kind of intellectual discipline, and our high regard for his work is widely shared.”
• The California Correctional Peace Officers Association, endorsed his nomination, writing that “We are confident he will further the cause of justice and follow the law and Constitution for all parties that come before his Court, again including crime victims and peace officers.”
• Twenty-seven former federal judges and prosecutors wrote to protest attacks on Liu’s record, saying that “rhetoric surrounding the criticism of his nomination has reached an unacceptable level, beyond what is appropriate in a civil, spirited debate,” and concluding that, “We applaud Professor Liu’s commitment to ensuring the constitutional rights of defendants facing the death penalty. Contrary to his critics’ claims, his commitment to the Constitution is commendable and vital for anyone seeking a position in what is often the court of last resort for individuals seeking to protect their constitutional rights.” 

Goodwin Liu’s story exemplifies the American Dream.

• His parents are immigrants from Taiwan, and although born in Georgia, he learned English only when he began attending public school in kindergarten. After moving to California, he overcame struggles with language to rise to co-valedictorian of his high school class, and then went on to academic distinction at Stanford, Oxford, and Yale.
• He would be only the second Asian American serving on a federal court of appeals, and the only Asian-American judge in active service on the Ninth Circuit, which includes Western states with large Asian-American populations.

I met Professor Liu when he testified in opposition to Proposition 8 in 2008 and strongly support his nomination to the 9th Circuit.

Heterosexual Supremacists File Motion Over Prop 8 Judge's Sexuality

Charles Cooper, lead counsel for "Protect Marriage" (sic)
 in the Propositiopn 8 federal lawsuit 

Charles Cooper, the virulent heterosexual supremacist who has been arguing against marriage equality for nearly two decade, filed a motion late on Monday with the 9th U.S. Court of Appeals to vacate Judge Vaughn Walker's historic decision striking down Proposition 8 on federal constitutional grounds because Walker revealed recently that he has been in a same-sex relationship with a man for 10 years.

Of course, this is a ridiculously bigoted motion. The implication is that an open;y gay judge can not fairly judge a case involving gay rights, a Black or Latino jurist could not judge a civil rights case fairly and female judges could not make decisions about abortion rights!

Lambda Legal  released a press release in response:

"Proponents of Proposition 8 certainly are getting desperate."

(San Francisco, April 25, 2011) — In reaction to today's filing of a motion
to vacate last year's historic decision by U.S. District Court Judge Vaughn
Walker declaring California's Proposition 8 unconstitutional, Jon Davidson,
Legal Director for Lambda Legal, issued the following statement.

"Proponents of Proposition 8 certainly are getting desperate.  This reeks
of a hail-Mary attempt to assail Judge Walker's character because they are
unable to rebut the extremely well-reasoned ruling he issued last year.
It's becoming a sadly typical move of the right:  don't like the ruling;
attack the referee."

To say that Judge Walker's should have disclosed his ten-year relationship
with another man or that it made him unfit to rule on Proposition 8 is like
saying that a married heterosexual judge deciding an issue in a divorce
proceeding has to disclose if he or she is having marital problems and
might someday be affected by legal rulings in the case.  Or that any judge
who professes any religious faith is unable to rule on any question of
religious liberty or, at a minimum, must disclose what his faith teaches.
Much like a suggestion that a female judge could not preside over a case
involving sexual harassment or an African American judge could not preside
over a case involving race discrimination, Proposition 8's supporters
improperly are suggesting that a judge will rule in favor of any litigant
with whom he shares a personal characteristic.

Judges hold a special and respected place in our society. Every day, they
are called upon to administer justice – in routine contract or traffic
court disputes, gut-wrenching child custody decisions, complex criminal
proceedings, and, as in this case, disputes about the basic human rights
that our Constitution is designed to protect. There may be judges who
betray their responsibilities and act with bias, but such a grave
accusation must be supported by evidence. Simply disagreeing with a
decision is not evidence that it was the result of bias. And assuming that
being in a same-sex relationship renders some judges unable to interpret
the law and do the job they have sworn to do insults both judges and
America's system of justice."

American Foundation for Equal Rights, the organization promoting the lawsuit, also has a response to Cooper's ridiculous motion:

“This motion is yet another in a string of desperate and absurd motions by Prop 8 Proponents who refuse to accept the fact that the freedom to marry is a constitutional right.  They’re attempting to keep secret the video of the public trial and they’re attacking the judge because they disagree with his decision.  Clearly, the Proponents are grasping at straws because they have no legal case.”

National Center for Lesbian Rights attorney Shannon Minter also responded:

"This is a desperate and ill-advised move that underscores their inability to defend Prop 8 on the merits. This is not likely to win them any points with the courts, who understandably do not appreciate having the integrity of judges called into question based on such outrageous grounds. This is part and parcel of the underhanded way the Prop 8 campaign itself was run-based on lies, insinuations, and unsupported innuendo."

The 9th Circuit announced there will be hearing in San Francisco on July 11 in San Francisco before District Court judge James Ware.

UPDATE 04/27/2011: The hearing on Cooper's motion has been expedited to June 13.

Hat./tip to LGBTPOV

Goodwin Liu Nomination On Senate Floor!

Goodwin Liu testifies before Senate Judiciary Committee, which reported
out his nomination to the 9th Circuit Court of Appeals by a 10-8 vote

There is some good news to report on President Obama's judicial nominations. The Senate Judiciary Committee had  a hearing this week and reported out five nominees, including Goodwin Liu for the 9th Circuit Court of Appeals and J. Paul Oetken, for the Southern District of New York.

These two nominations are being followed carefully by MadProfessah and other progressives around the country because Oetken is the first openly gay man ever to be nominated to a federal District Court judgeship and Liu is an Asian-American, progressive legal star, currently a professor at UC Berkeley Law School. The Oetken nomination looks like it will sail through the Senate but the Republicans are terrified that if they allow the 39-year-old Liu on the appellate court he could be nominated for the United States Supreme Court in Obama's second term and seem determine to filibuster the nomination to death.

From the Washington Times:

The Liu debate extends far beyond Capitol Hill, as liberal and conservative groups see the nomination fight as a crucial test of the president’s ability to put his stamp on the nation’s judiciary. 

Curt Levey, executive director of the conservative Committee for Justice, called Mr. Liu “the worst of Obama’s nominees at all levels of the federal courts.” 

Nan Aron, president of the liberal Alliance for Justice, in contrast called Mr. Liu “one of the finest legal minds of his generation” who deserves a swift yes vote on the Senate floor. 

Whether that vote happens, however, is uncertain. Democrats control only 53 of the Senate’s 100 seats — seven fewer than needed to guarantee an override of a Republican filibuster. A handful of moderate Democrats facing tough re-election battles also may be tempted to join a GOP filibuster of Mr. Liu.

We shall see what happens but at least there are more than 18 months until the end of this Congress so time is on Liu's side.

Obama Nominates Out Lesbian As Federal Judge

Alison Nathan, has becomes Obama's first
 out lesbian federal judicial nominee

The Obama administration has nominated the third openly LGBT person to the federal bench: Alison (Ali) Nathan. Nathan, a former associate White House counsel, joins J. Paul Oetken and Edward Dumont as openly gay Obama judicial nominees. Currently, there is currently one openly gay federal judge on the bench, African American lesbian Deborah Batts.

Here is what the official White House announcement of the Nathan judicial nomination looked like:

Alison J. Nathan:  Nominee for the United States District Court for the Southern District of New YorkAlison J. Nathan currently serves in the Office of the Attorney General of the State of New York as Special Counsel to the Solicitor General, a position she has held since 2010.  From 2009 to 2010, Nathan served as a Special Assistant to President Obama and an Associate White House Counsel.  Prior to joining government service, she spent a number of years as an academic, first as a Visiting Assistant Professor of Law at Fordham University Law School from 2006 to 2008 and later as a Fritz Alexander Fellow at New York University School of Law from 2008 to 2009.  From 2002 to 2006, Nathan was an associate in the New York and Washington, D.C. offices of Wilmer Cutler Pickering Hale and Dorr.  Nathan served as a law clerk for the Honorable John Paul Stevens of the Supreme Court of the United States from 2001 to 2002 and as a law clerk to the Honorable Betty B. Fletcher of the Ninth Circuit Court of Appeals from 2000 to 2001.  Nathan received her J.D., magna cum laude, in 2000 from Cornell Law School, where she was Editor-in-Chief of the Cornell Law Review.  She received her B.A. in 1994 from Cornell University.

It should be noted that these are some of the only openly LGBT judicial nominees in history. J. Paul Oetken is the first openly gay man to be nominated for the federal judiciary, which are lifetime appointments. None of these appointments are at the appellate court level, yet, but hopefully that will happen soon, or at the very least during Obama's second term.

Openly Gay Federal Judge Nominee Has Low-Key Hearing

J. Paul Oetken, potentially the first openly gay man to become a federal judge, had an uneventful hearing before the United States Senate judiciary committee on Wednesday March 16th, with no Republican opposition.

Chris Geidner of Metro Weekly reports:

J. Paul Oetken, an out gay attorney who worked at Jenner & Block and Debevoise & Plimpton, also spent substantial time in government, working in both the Justice Department's Office of Legal Counsel and the White House under President Clinton. A former law clerk to the late Supreme Court Justice Harry Blackmun, Oetken currently serves as the senior vice president and associate general counsel at Cablevision.

He was nominated, on Schumer's recommendation, for a judgeship on the Southern District of New York -- one of the key federal trial courts in the nation.

In Schumer's introduction of Oetken, the senator noted that, in addition to records of excellence and moderation, "I also look for candidates who bring diverse views and backgrounds to the bench. Paul is the first openly gay man to go through an Article III confirmation process in this country, which makes this moment historic. But long after today, what the history books will note about Paul is certain to be his achievements as a fair and brilliant judge."

We'll be monitoring the progress of this nomination carefully. It is doubtful that one of the rabidly anti-gay Republican members of the United States Senate will skip this opportunity to  curry favor with heterosexual supremacists and prevent an openly gay man from making history as a federal judge, even one as obviously well-qualified as Oetken.

The question is, how hard will the Democratic majority and the President fight to confirm the President's nominees, especially in light of the very real prospect of loss of Senate control in 2012.

Creationism Is "Superstitious Nonsense" Lawsuit Heard

OMG this lawsuit makes me wanna holla! A public school teacher names James Corbett previously lost a federal lawsuit at the district court level for remarks he made in class that student Chad Farnan claimed violated his first amendment religious rights. Now that decision has been appealed to the 9th U.S. Circuit Court of Appeals:

A Santa Ana federal judge ruled in 2009 that Corbett violated the First Amendment's establishment clause when he referred to Creationism as "religious, superstitious nonsense" during a classroom lecture.

But the judge – noting Corbett would not have necessarily known he was violating student Chad Farnan's constitutional rights – also barred the teacher from having to pay attorney fees and damages under a "qualified immunity" defense. Qualified immunity is a form of federal protection for government employees who have violated an individual's constitutional rights.

Both sides appealed the ruling to the 9th Circuit. Corbett is seeking to be vindicated; Farnan is seeking a stronger ruling against Corbett, and for Corbett's qualified immunity to be tossed out.

The 9th Circuit court, which did not make any decisions Friday, has wide discretion with this case. It can rule on any or all of the arguments presented, declare portions to be moot, and/or send the case back to the trial court.

Corbett remains in his teaching position; Farnan, who brought the lawsuit as a sophomore at Capistrano Valley High in December 2007, is now a freshman at Pepperdine University in Malibu.

The teacher also said "When you pray for divine intervention, you're hoping that the spaghetti monster will help you get what you want." This is a reference to the Flying Spaghetti Monster, an "alternative" religion. Bizarrely, Erwin Chemerinksy, who I greatly admire and is serving as the attorney for Corbett, had to argue these statements "had legitimate teaching purposes that did not promote hostility toward religion."

Obama Administrations Ends Legal Defense of DOMA

FOR IMMEDIATE RELEASE                                                                                              AG

WEDNESDAY, FEBRUARY 23, 2011                                                             (202) 514-2007

WWW.JUSTICE.GOV                                                                             TDD (202) 514-1888

STATEMENT OF THE ATTORNEY GENERAL ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court.  Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.  While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard. 

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.  In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.  The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.  Given that conclusion, the President has instructed the Department not to defend the statute in such cases.  I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit.  We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.  I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option.  The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation. 

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3. 

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.  At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one.  Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional. 

Much of the legal landscape has changed in the 15 years since Congress passed DOMA.  The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional.  Congress has repealed the military’s Don’t Ask, Don’t Tell policy.  Several lower courts have ruled DOMA itself to be unconstitutional.  Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law.  But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

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