It was announced today that, following an agreement reached between the parties’ leaders, the Senate will be voting in the coming weeks on 14 of President Obama’s judicial nominees — including out gay nominee Michael Fitzgerald, whose nomination for the U.S. District Court for the Central District of California is due to be voted on about 2 p.m. Thursday, March 15.
According to the Senate schedule, at 1:45 p.m., the Senate will consider the nominations of Fitzgerald and Gina Marie Groh, nominated to be a U.S. District Judge for the Northern District of West Virginia. Then, at “approximately 2 p.m.,” votes on each nominee will be held, first on Groh’s nomination and then on Fitzgerald’s nomination.
The move came after Senate Majority Leader Harry Reid (D-Nev.) on Monday, March 12, announced that he would be forcing debate and votes on 17 of Obama’s judicial nominees if no deal was reached.
Fitzgerald, who was nominated by President Obama in July 2011 for a judgeship on the U.S. District Court for the Central District of California, had a hearing in October 2011 and was reported by the Senate Judiciary Committee to the full Senate without opposition on Nov. 3, 2011.
Fitzgerald received an American Bar Association rating of “unanimously well qualified.” A former assistant U.S. Attorney, he is a lawyer with Corbin, Fitzgerald and Athey in Los Angeles.
At Fitzgerald’s confirmation hearing, Sen. Dick Durbin (D-Ill.) had asked Fitzgerald specifically about a case on which he had worked earlier in his career, Buttino v. FBI.
In Fitgerald’s written questionnaire provided to the committee, he described the case, writing, “[Frank] Buttino was a gay FBI special agent who was anonymously ‘outed’ to his Special Agent-in-Charge, which ultimately resulted in the removal of his security clearance and concomitant firing as an FBI special agent.”
Buttino filed a class-action lawsuit against the Bureau, and, at Fitzgerald’s request, he and his firm — Heller, Ehrman, White & McAuliffe — represented the class at trial. After several days of trial, the case settled, with the FBI making significant policy changes as a result.
At the confirmation hearing, of the result Fitzgerald said, “The FBI agreed to no longer use security concerns as means to keep gays and lesbians from being hired as special agents, and Mr. Buttino’s pension was restored.”
The Senate previously has confirmed two out LGBT lawyers nominated by Obama, Judges Paul Oetken and Alison Nathan, both of whom sit on the U.S. District Court for the Southern District of New York. Oetken’s nomination was approved 80-13, including a majority of the Republican caucus voting for his nomination. Nathan, however, only was approved 48-44, and faced significant floor opposition — although her sexual orientation was not directly raised in the debate — and received no “yes” votes from Republicans.
The primary senator to speak today against Nathan’s nomination was Sen. Jeff Sessions (R-Ala.), who criticized Nathan for more than 18 minutes. Among his primary concerns were that she could potentially be an “activist judge,” was inexperienced and — as described at length — might be too willing to rely on foreign law. Of such foreign-law reliance, he said, “I think it is a dangerous philosophy.” He then stated that by holding such views, people “fundamentally can disqualify themselves from the bench.”
Obama withdrew the name of one nominee, appellate nominee Edward DuMont, after the Senate refused to act on the nomination.
Oetken and Nathan joined the only other out LGBT Article III federal judge, Judge Deborah Batts, who was nominated by President Clinton. Article III judges — referencing the judicial powers detailed in the Constitution — have lifetime tenure.
As such, Fitzgerald’s confirmation would make him the first out LGBT Article III judge serving outside of New York City. Now-retired Judge Vaughn Walker, who is gay and oversaw the Proposition 8 trial in 2009, had served as a judge in the U.S. District Court for the Northern District of California, but he did not speak publicly about his sexual orientation until after his retirement.