Openly gay nominee Stuart Delery went into Tuesday’s confirmation hearing with at least one big endorsement: Republican former Solicitor General Paul Clement. Clement is the attorney the Republican House Bipartisan Legal Advisory Group (BLAG) to defend the Defense of Marriage Act (DOMA). He signed onto a letter with 15 other former government officials expressing their “strong support” for Delery’s confirmation to serve as Assistant Attorney General in charge of the Department of Justice Civil Division.
Delery has been acting assistant AG of the division since February 2012. President Obama nominated him in March to become permanent head of the division.
The U.S. Senate Judiciary Committee held a confirmation hearing June 11 for Delery, who is openly gay, coupling it with the confirmation hearing of a more controversial nominee, Todd Jones. President Obama nominated Jones to serve as director of the Bureau of Alcohol, Tobacco, Firearms and Explosives. Delery’s nomination was completely overshadowed by that of Jones who has hit some rough waters. Ranking Committee Minority leader Senator Chuck Grassley of Iowa has expressed concern about Jones’ responsiveness as interim ATF director in relation to the “Fast and Furious” gun sting operation.
All but one question at the June 11 hearing were directed to Jones.
For the LGBT community, Delery’s nomination is a high level appointment. If confirmed, he will formally take over the position most recently held by Tony West. It was under West, in 2009, that the DOJ filed a brief vigorously defending DOMA as a reasonable and necessary law. The brief (in Smelt v. US) stated that “DOMA does not discriminate against homosexuals in the provision of federal benefits” and “… does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.” After a hue and cry from the LGBT community, the DOJ and West changed their position and, by February 2010, announced they would no longer defend DOMA as constitutional.
There are 12 assistant attorneys general at DOJ. As head of the Civil Division, Delery represents the U.S. government in litigation involving such critical matters as national security, presidential powers, immigration, energy, banking, and consumer protection. Recently, the Division has defended the Affordable Care Act and the administration’s protection of information concerning the CIA use of drones to eliminate suspected terrorists. The DOJ Civil Division has 1,400 employees.
Coming just days before the historic marriage oral arguments in the U.S. Supreme Court, Delery’s nomination March 21 received little notice. But it was a significant nomination, especially for the LGBT community. If confirmed by the Senate, it will make Delery, 45, the highest-ranking openly LGBT appointee at the DOJ and one of the highest ranking among the estimated 268 openly LGBT people whom President Obama has nominated or appointed since entering the White House in 2009.
In his brief opening statement, Delery introduced his family, including his partner Richard Gervase, and their two sons.
Delery is a graduate of the University of Virginia and Yale Law School and served as clerk to then Justices Sandra Day O’Connor and retired Justice Byron White.
He entered the practice of law as an associate at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C., and left the firm as a partner 10 years later to serve as chief of staff to Deputy Attorney General. He has spent the past two years in the Civil Division, most recently as acting assistant attorney general.
In a routine questionnaire provided to the Senate Judiciary Committee, Delery notes that he was a member of Gaylaw (Gay and Lesbian Attorneys of Washington) from 1996 to 2000. He also notes that he is a member of Rainbow Families DC, an educational and social network for LGBT families.
Among the speeches and talks he has given, Delery noted he delivered a keynote address to the White House LGBT Conference on Families in Minneapolis last year, talking about the DOJ’s work “of interest to families with gay and lesbian members.”
A video of that speech can be seen on YouTube.
In that speech, Delery talked about the Obama DOJ’s record on LGBT-related issues, including its decision to stop defending as constitutional Section 3 of DOMA, and to combat hate crimes, bullying, and harassment.
The questionnaire indicates Delery was involved as a panelist in about a half-dozen forums concerning LGBT-related legal issues at various law school forums as well as a forum of the Lavender Law Conference.
The questionnaire also notes that Delery served as a volunteer for President Obama’s 2008 presidential campaign, in both the primaries and general election, as well as the 2004 presidential campaign of Democrat John Kerry.
Senator Al Franken was the only senator to refer to anything gay during the hearing, thanking Delery for his interim service and noting specifically his work on behalf of marriage equality and holding credit rating agencies accountable.
The Committee has not yet set a date to vote on Delery’s confirmation.