In a first, Senate confirms judge who is openly gay

Adjuntc Professor J. Paul Oetken in The National Law Journal, July 18, 2011

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The U.S. Senate voted overwhelmingly on Monday to confirm J. Paul Oetken as a district court judge, making him the first openly gay man appointed to the federal bench.

David Ingram
July 18, 2011

The U.S. Senate voted overwhelmingly on Monday to confirm J. Paul Oetken as a district court judge, making him the first openly gay man appointed to the federal bench.

Oetken, 45, will fill a vacancy on the high-profile Southern District of New York. He's worked in-house at Cablevision Systems Corp. since 2004, most recently as senior vice president and associate general counsel. President Barack Obama nominated him in January.

The vote was 80-13 in favor of confirmation. The unprecedented action followed little debate in the Senate, where views about gays and lesbians serving openly in prominent positions have shifted markedly in recent years.

Sen. Charles Schumer (D-N.Y.), who recommended Oetken to the White House, said in a speech on the Senate floor that he will be "a symbol of how much we have achieved as a country in just the last few decades."

"He will give hope to many talented, young lawyers who until now thought their paths might be limited because of their sexual orientation," Schumer said. "When Paul becomes Judge Oetken, he will be living proof to all those young lawyers that it really does get better." (The "It Gets Better" video project was started after a series of suicides by young gays and lesbians.)

No senator spoke against Oetken's nomination. Sen. Charles Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, limited his comments on the Senate floor to Oetken's education and work experience, but he gave Oetken his unqualified support. Oetken grew up in Iowa and got a bachelor's degree from the University of Iowa.

"I support this nomination and congratulate him on his professional accomplishments," Grassley said.

Oetken's career has been marked by stops at some of the legal power centers of Washington. He clerked for U.S. Supreme Court Justice Harry Blackmun, worked in the Justice Department's Office of Legal Counsel and served in the Clinton White House as an associate counsel. He was then an associate and a counsel at Debevoise & Plimpton in New York before moving to Cablevision.

On the Southern District of New York, Oetken will serve alongside the only open lesbian on the federal bench, Judge Deborah Batts. President Bill Clinton appointed her in 1994. Vaughn Walker, the retired chief judge of the Northern District of California and the one who presided over the trial involving California's ban on same-sex marriage, told reporters in April after leaving the bench that he is gay.

Lawyers who have advocated for gay and lesbian rights hailed Oetken's confirmation as a milestone, while emphasizing what they called his strong qualifications. The committee of the American Bar Association that rates judicial nominees unanimously called Oetken "qualified," its middle of three ratings.

"Similar to other firsts, it's a recognition that somebody who's qualified could be considered and appointed notwithstanding that they're a member of a minority that hasn't had representation on the bench," said Michele Kahn of New York's Kahn & Goldberg, chair of the New York State Bar Special Committee on LGBT People and the Law.

Anthony Varona, a former general counsel for the gay rights group Human Rights Campaign who's now an associate dean at American University's Washington College of Law, called Oetken "a phenomenally brilliant lawyer and tremendous source of pride" for the lesbian, gay, bisexual and transgender community.

Another openly gay judicial nominee is awaiting a hearing. Obama nominated Wilmer Cutler Pickering Hale and Dorr partner Edward DuMont for the U.S. Court of Appeals for the Federal Circuit in April 2010, and nominees usually receive a hearing within a couple months. Senators of both parties have declined to give a detailed reason for the delay.

Alison Nathan, a nominee for the Southern District of New York and a lesbian, won the backing of the Senate Judiciary Committee on July 14. A final vote has not been scheduled.