Judicial Symbolism

As the recent confirmation of one out gay judge is heralded, another waits longer than any other Obama judicial nominee just to have a hearing on his nomination

On July 18, Sen. Charles Schumer (D-N.Y.) spoke in soaring tones of the action the Senate was about to take on the judicial nomination of J. Paul Oetken, an out gay attorney confirmed to serve as a U.S. District Court judge for the Southern District of New York on an 80-13 vote that evening.

”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,” Schumer told the chamber. ”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.”

Edward DuMont
Edward DuMont

The judicial nominee who has been waiting longer than any other in the Obama administration for a hearing in the Senate Judiciary Committee, however, also is an openly gay man – and no one is willing to say, specifically, why his nomination is stalled.

President Barack Obama nominated Edward DuMont to serve as an appellate judge on the U.S. Court of Appeals for the Federal Circuit more than 15 months ago. DuMont, also openly gay, was praised at the time by scholars on the left and right. Eugene Volokh, a libertarian-leaning law professor at UCLA School of Law who described DuMont as a friend, spoke at the time about ”the apolitical, quality factors that Ed has going for him.”

Yet, despite the highest ranking – ”unanimously well qualified” – from the American Bar Association, DuMont has not had so much as a single hearing scheduled within the Senate Judiciary Committee on his nomination, which is a necessary step before scheduling the nomination for a committee vote.

Committee spokeswoman Erica Chabot told Metro Weekly on July 29, ”Chairman Leahy has been prepared to move forward with this nomination for months, but has been trying to accommodate committee Republicans, who continue to not want to move forward with the nomination.”

Also, White House spokesman Shin Inouye told Metro Weekly, ”The president continues to urge the Senate to move forward on all his nominees, including this one.”

The committee spokeswoman for ranking minority committee member Sen. Chuck Grassley (R-Iowa), Beth Levine, told Metro Weekly today, however, ”There are questions in Mr. DuMont’s background investigation that have to be resolved.”

Levine confirmed that the questions have been shared with the Democrats on the committee and with DuMont, but said that she was unaware of and, in any event, could not share any specifics.

Chabot expressed surprise at the Levine’s response, saying today, ”It is not the committee’s policy to discuss background investigations on nominees.”

Inouye did not respond to a request for comment on Levine’s claim.

When the Senate took no action on DuMont’s nomination in the 111th Congress, the nomination was returned to the president on Dec. 22, 2010. On Jan. 5, though, Obama renominated DuMont – along with seven other appellate judicial nominees and 34 district court nominees.

At this point, DuMont has waited longer for a hearing than any other judicial nominee in the Obama administration currently before the Senate. Three of the seven appellate nominees renominated Jan. 5 have been confirmed; two had committee hearings and await Senate action; one – Goodwin Liu, now a nominee for the California Supreme Court – was withdrawn after a successful Senate filibuster of the nomination; and two – DuMont and Victoria Nourse – await hearings.

Nourse, originally nominated three months after DuMont, worked for the Senate Judiciary Committee and with then-Sen. Joseph Biden in drafting the Violence Against Women Act. She has had a hold placed on her nomination by Sen. Ron Johnson (R-Wis.), who has said that Nourse ”really has very little connection to the state of Wisconsin, and nobody in the legal community in Wisconsin knows anything about her.”

DuMont – who noted his membership in the Gay, Lesbian, Bisexual & Transgender Attorneys of Washington (GAYLAW) on his Senate Judiciary Committee questionnaire, as well as former membership in the National LGBT Law Association – was the first out gay judicial nominee of the Obama administration. A former clerk for Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit, DuMont is a graduate of Stanford Law School who worked in the Solicitor General’s Office during the Clinton administration.

His nomination to the Federal Circuit, supporters said at the time, would be uncontroversial due to the court’s specialty docket. Unlike other appellate courts that hear all appeals in a certain geographic area, the Federal Circuit has its cases determined by the subject of the litigation. Among the cases the court hears are those dealing with patent law and certain types of lawsuits against the government.

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