Gay federal appeals nominee: 11 months and still waiting for hearing

Republican members of the U.S. Senate Judiciary Committee have been holding up the nomination of President Obama’s only openly gay nominee to a federal appeals bench.

Edward DuMont

Republican members of the U.S. Senate Judiciary Committee have been holding up the nomination of President Obama’s only openly gay nominee to a federal appeals bench.

President Obama nominated Washington, D.C., attorney Ed DuMont to the Federal Circuit bench on April 14 last year, but the nomination has not progressed through the usual Committee hearing and vote to move to the Senate floor. At the end of the last Congressional session, the Committee “returned” DuMont’s nomination to the president, along with those of several other appeals court nominees who had not gained confirmation. The president re-nominated those candidates at the start of the new congressional session and several have seen movement–either their first hearing or even a second one.

But DuMont’s nomination alone has not received even one hearing.

In fact, only one other nominee on the Committee’s list of pending federal appeals court nominees has waited longer than DuMont for a confirmation vote: controversial liberal nominee Goodwin Liu.

Liu was first nominated in February 2010 and was reported favorably out of committee in May. But his nomination never reached the floor.

Liu, however, has already received a second confirmation hearing just this month. And the committee has hearings scheduled for this Thursday (March 10) for two federal appeals candidates who were nominated months after DuMont was. One of those two nominees, Jimmie Reyna, was nominated to the Federal Circuit five months after DuMont.

Asked why DuMont’s nomination has not been scheduled for a hearing, a spokeswoman for Judiciary Committee Chairman Patrick Leahy (D-Vt.) said only that “Committee Republicans are still reviewing information about the nomination….”

A spokeswoman for the Committee’s ranking minority member, Senator Charles Grassley (R-Iowa), did not respond to a request for comment, nor did a spokeswoman for DuMont.

If ultimately confirmed, DuMont would be the first openly gay person to be appointed to a federal appeals bench. The Federal Circuit, located in Washington, D.C., is the only federal appeals court with national jurisdiction and hears cases involving government contracts, patents, trademarks, customs issues, and veterans’ benefits.

DuMont’s responses to the Committee’s routine questionnaire included responses that would seem to please members of both sides of the partisan aisle. He noted having made contributions to a large number of gay and progressive groups, but he also signed onto a letter of support for one of President George W. Bush’s controversial conservative appeals court nominee, Miguel Estrada. DuMont also clerked for an appointee of President Reagan, 7th Circuit Court Judge Richard Posner.

Meanwhile, openly gay district court nominee J. Paul Oetken has not yet been scheduled for a hearing, but President Obama nominated him only January 26 of this year.

Oetken is nominated for the U.S. District Court for the Southern District of New York, covering much of Manhattan.

In response to questions from the Senate Judiciary Committee’s standard questionnaire, Oetken indicated that he co-authored a friend-of-the-court brief in support of overturning sodomy laws, in Lawrence v. Texas. The U.S. Supreme Court struck down sodomy laws in that case, with a decision issued in 2003. Oetken also noted he holds memberships in the Human Rights Campaign, Lambda Legal, and the ACLU’s LGBT Project.

Oetken served as Associate Counsel to President Clinton from 1999 to 2001.

If approved, Oetken would become the second openly gay judge in that federal district—along with Deborah Batts. He would be the third openly gay federal judge in the country—along with Emily Hewitt of the U.S. Court of Federal Claims. Batts and Hewitt were both appointed by President Clinton.

Name No. of months since first nominated Hearing held? Committee vote Full senate vote
Goodwin Liu 13 Yes – 2 Yes – 1 No
Edward DuMont 11 No No No
Susan Carney 10 Yes – 2 Yes – 2 No
James Graves 9 Yes – 2 Yes – 2 Feb. 12, 2011
Victoria Nourse 8 No No No
Jimmie Reyna 6 Yes Sch. Mar. 10 No
Caitlin Halligan 6 Yes Sch. Mar. 10 No
Bernice Donald 3 No No No
Henry Floyd 2 No No No

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