Metro Weekly

Obama Nominates Oetken for N.Y. Federal Court Spot

Today, President Barack Obama announced the nomination of J. Paul Oetken to serve as a U.S. District Court judge on the Southern District of New York.

oetken.jpgOetken would be the second out LGBT member of the Southern District of New York court, joining U.S. District Court Judge Deborah Batts. Batts, a black lesbian, was nominated by President Clinton in 1994 and was the first out LGBT federal judge confirmed by the U.S. Senate in the country.

Oetken served in the Clinton administration as both an associate counsel to the White House and, earlier, in the Department of Justice as an attorney-advisor in the Office of Legal Counsel.

Tony Varona, associate dean and professor of law at American University’s Washington College of Law, praised the nomination. 

Varona, the former general counsel and legal director at the Human Rights Campaign, told Metro Weekly, “Paul, an old friend, boasts a brilliant and rigorous legal mind, a sharp wit, as well as sterling academic and professional credentials.

“Just as important is that he also has the native judgment and temperament that make for the best jurists,” he said. “He would be an impartial and fair judge — and a source of great pride for the Obama Administration as well as the LGBT community.”

David Lat, managing editor of Above the Law — the leading legal gossip blog — noted the significance of the Southern District of New York.

“The Southern District of New York is the nation’s most prestigious trial court,” he wrote to Metro Weekly. “Judges in the S.D.N.Y. handle some of the country’s most important cases, from gigantic financial frauds to high-profile terrorism prosecutions.

“It’s unmatched in cachet, and it has an all-star bench. Paul will fit right in.”

Oetken’s nomination was sent to the Senate today. The Senate Judiciary Committee will consider the nomination before the full Senate will consider it. Then, the full Senate will need to approve the nomination before Oetken actually would take a spot on the bench.

Among Oetken’s other work, he represented the National Lesbian and Gay Law Association in submitting its amicus curiae, or friend of the court, brief in Lawrence v. Texas in 2003. In the case, which resulted in striking down all sodomy laws in the nation, Oetken co-authored the brief with Chai Feldblum, who serves as a commissioner of the U.S. Equal Employment Opportunity Commission.

In summarizing their arguments, they wrote on behalf of the National Lesbian and Gay Law Association and several other legal groups:

The Texas Homosexual Conduct Law violates principles that are basic to the Equal Protection Clause of the Fourteenth Amendment. As this Court reiterated in Romer v. Evans, 517 U.S. 620, 632 (1996), animosity toward a group of people is not a legitimate purpose for governmental discrimination against such a group. The State of Texas acknowledges, however, that its discriminatory sexual conduct law is justified solely by the fact that the “electorate evidently continues to believe” that such a discriminatory law correctly reflects the majority’s moral views. As Petitioners’ Brief makes clear, the Texas law fails muster even under the least stringent level of judicial scrutiny–that of rational basis review. In the words of the dissenters below, “the contention that the same conduct is moral for some but not for others merely repeats, rather than legitimizes, the Legislature’s unconstitutional edict.”

Nevertheless, should this Court choose to rule on the question whether classifications based on sexual orientation must satisfy a higher standard than rational basis review–an action that was unnecessary in Romer — this Court should rule that such classifications warrant heightened scrutiny.

Although the court struck down the law, it did not rule on whether sexual orientation classifications should be subject to “heightened” equal protection scrutiny.

Oetken’s biography, from the White House:

J. Paul Oetken: Nominee for the United States District Court for the Southern District of New York

J. Paul Oetken is Senior Vice President and Associate General Counsel of Cablevision Systems Corporation in Bethpage, New York, a position he has held since 2004.  Prior to joining Cablevision, Oetken worked at Debevoise & Plimpton, where he was counsel from 2003 to 2004 and an associate from 2001 to 2003.  Oetken joined the White House Counsel’s Office as Associate Counsel to the President in 1999 and worked there until 2001.  From 1997 to 1999, Oetken was an attorney-advisor with the U.S. Department of Justice in the Office of Legal Counsel.  Prior to that, he worked as an associate at Jenner & Block for approximately two years.  From 1993 to 1994, Oetken served as a law clerk for the Honorable Harry A. Blackmun of the U.S. Supreme Court; from 1992 to 1993, he served as a law clerk for the Honorable Louis F. Oberdorfer of the U.S. District Court for the District of Columbia; and from 1991 to 1992, he served as a law clerk for the Honorable Judge Richard D. Cudahy of the U.S. Court of Appeals for the Seventh Circuit.  Oetken received his J.D. in 1991 from Yale Law School, and his B.A. with highest distinction in 1988 from the University of Iowa.

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