Considering lesbian, gay, transgender, and bisexual nominees for the federal courts.

• Author: Tobias, Carl

In April 2010, President Barack Obama nominated Edward DuMont to the United States Court of Appeals for the Federal Circuit, and more than one and a half years later the nominee withdrew. The aspirant possesses impeccable credentials, having argued eighteen Supreme Court matters and captured a unanimous well-qualified American Bar Association (ABA) rating. Despite his immense capabilities, the nominee never received a hearing. Because Edward DuMont is an exceptionally competent individual and would have been the first openly gay court of appeals judge, he merited expeditious review. The nominee's cautionary tale illuminates how excessive Senate partisanship deprived the appellate bench of a remarkable jurist.

The federal circuit and district courts included strikingly few ethnic minority and female jurists before President Jimmy Carter's administration. (1) Carter invoked strategies to efficaciously proffer strong persons of color and women for the circuit bench (2) and urged senators to propose skilled candidates when trial level vacancies arose. (3) Carter nominated and confirmed a plethora of minority and female judges during his term in office, but failed to nominate or confirm any openly lesbian, gay, bisexual, or transgender (LGBT) court members. (4) His Republican successors also failed to name a single LGBT jurist. (5) President Bill Clinton asked senators to provide many superb, diverse counsel (6) He recruited the first openly lesbian judge, Deborah Batts, (7) while establishing records for appointing people of color and women. (8) Nevertheless, minority and female jurists continue to be substantially underrepresented. At Obama's inauguration, Batts was the lone LGBT federal court judge among 1300 circuit and district court jurists, while African Americans essentially comprised a tenth and women constituted one fifth of the federal judiciary. (9)

President Obama rapidly implemented effective special initiatives (10) to promote diversity vis-a-vis sexual orientation, ethnicity, and gender. (11) This process included contacting less traditional sources for judicial nominations, notably LGBT, minority, and women's groups and bars, while canvassing and recommending numerous fine persons of color and women and certain gay and lesbian choices. The White House solicited help from politicians, such as minority and female elected officials, carefully asking that lawmakers institute concerted actions to pick diverse candidates. officers evaluated and submitted numbers of very capable LGBT, minority, and female lawyers. (12) Particularly relevant to this effort were New York Senators Charles Schumer (D) and Kirsten Gillibrand (D). They proposed multiple LGBT counsel (Paul Oetken and Alison Nathan) for the Southern District and, rather late in 2012, suggested lawyer Pamela Ki Mai Chen for the Eastern District. Oetken's recent appointment made him the first openly gay district court judge, while Nathan's approval promptly thereafter made her the country's only active lesbian jurist. (13)

When selecting DuMont, Obama remarked that he possesses "a keen intellect and a commitment to fairness and integrity...." (14) DuMont graduated summa cum laude from Yale University in 1983 and received his J.D. from Stanford Law School in 1986, earning membership in the Order of the Coif. (15) The able prospect clerked for the legendary Seventh Circuit Judge Richard Posner. (16) DuMont practiced as a highly regarded Supreme Court advocate with the Solicitor General for over seven years and was Clinton's Associate Deputy Attorney General. (17) He later practiced mostly Supreme Court litigation as a very respected WilmerHale partner. DuMont has argued numerous Supreme Court appeals and briefed even more. Indeed, these qualities prompted the ABA's finest ranking. (18)

Because the Federal Circuit exercises nationwide jurisdiction over specific subject matter, in particular intellectual property issues, such as patents, (19) the court resolves few disputes over "social policy" questions, like sexual preference and terrorism, which can make appellate nominees controversial. (20) The Federal Circuit's sole post-2004 nonmilitary ruling on sexual preference affirmed a Merit Systems Protection Board judgment upholding a federal agency's suspension of an employee for alleging the employee's co-workers were LGBT and insisting they "hired Chinese homosexuals to stalk and harass him." (21)

Notwithstanding DuMont's myriad compelling attributes, the competent aspirant received no Judiciary Committee hearing mainly because Grand Old Party (GOP) senators objected. Despite Obama's coordination with Senators Patrick Leahy (D-Vt.), the chair of the Judiciary Committee, Harry Reid (D-Nev.), the Senate Majority Leader, and the Democrats' Republican counterparts prior to and following nominations, the GOP has not always cooperated. (22) For instance, the Senate panel swiftly processed designees. (23)

However, Republicans automatically held over votes seven days without cogent reasons for minority and female nominees whom they did approve the next week. (24) Senator McConnell nominally cooperated to schedule prompt floor votes, and many of his party colleagues systematically placed anonymous holds or those lacking justifications on strong uncontroversial nominees; these actions delayed Senate confirmations and required that Democrats file cloture petitions. (25) The GOP requested significant floor debate time and roll call ballots, even for nominees who ultimately secured overwhelming approval. (26)

The failure to consider DuMont is an egregious illustration of GOP recalcitrance; the candidate experienced the most intractable dilatory tactics with the least explanation. Press accounts specifically claimed that the "reason for the delay in the process [was] not publicly known." (27) One Leahy aide found that the chair was reluctant to schedule DuMont's hearing, as he preferred cooperation with Republicans, who sought more time for examining paperwork. (28) A GOP staff assistant did confirm that the party insisted on an extension; however, she proffered little substantiation for the request. (29) The Washington Post succinctly editorialized: "no one involved in the nominations process can provide a satisfactory explanation," although it lacked persuasive "evidence that Mr. DuMont's sexual orientation has played a role in the delays." (30) Yet, a number of commentators essentially intimated that his sexual orientation may be relevant, (31) and this explanation assumed increasing plausibility with the significant passage of time. DuMont's languishing nomination sharply contrasts with subsequent Obama picks, especially Federal Circuit nominees. The upper chamber approved Court of International Trade Judge Evan Wallach in fewer than four months (32) and expert counsel Jimmie Reyna in six. (33) Despite the problems regarding DuMont, Obama eclipsed records...