October 20, 2010 | by Chris Johnson
White House rejects gay judicial nominee

The White House has rejected the recommended nomination of a New York attorney who would have become the first openly gay man to sit on the federal bench, because of comments he reportedly made about the Pledge of Allegiance and Christmas that were deemed anti-Christian.

In February, U.S. Sen. Chuck Schumer (D-N.Y.) recommended the nomination of Daniel Alter to serve as a judge for the U.S. District Court for the Southern District of New York. Presidents traditionally follow the guidance of senators from the state where there’s a vacancy for judicial nominations.

But informed sources told the Washington Blade that the White House rejected Alter’s nomination because of remarks he reportedly made regarding a case challenging inclusion of the phrase “under God” in the Pledge of Allegiance. In addition, the White House reportedly objected to remarks that Alter made suggesting that merchants not wish shoppers “Merry Christmas” during the holidays.

In a 2005 article published by Cybercast News Service, Alter is quoted as saying that a general holiday greeting is more appropriate and inclusive for retailers as opposed to saying “Merry Christmas.”

“It seems both from a business … and a community perspective, that if merchandisers were going to do that … they would try to wish those in the community who may not share in celebrating Christmas a happy holiday as well,” Alter is quoted as saying.

“Our diversity has made us great and will continue to make us great and ['Merry Christmas'] undermines both the holiday spirit as well as the message I think Americans should be sending to each other,” Alter reportedly continued.

The 2005 quotes were apparently reprinted in a 2008 CNS article that is stored in the archives on the organization’s website.

Additionally, in a 2004 article published in The New Republic, Alter is quoted as saying the U.S. Supreme Court case Elk Grove United School District v. Newdow “was a good case at the wrong time.” The case challenged use of the “under God” phrase in the Pledge of Allegiance in public schools.

The article reported Alter was “relieved” the Supreme Court decision “left open a window for future challenges.” The Anti-Defamation League had filed a friend-of-the-court brief in support of the Newdow case.

“When the right case does come along,” Alter reportedly said, “We’re there.”

Alter was previously an assistant U.S. attorney for the Southern District of New York and specialized in First Amendment and terrorism issues. He also served as national director of the civil rights division of the Anti-Defamation League, an organization that works to fight anti-Semitism.

The comments he reportedly made came in his capacity as an official with the Anti-Defamation League. The White House decision to reject Alter disappointed his supporters, who rallied around him and urged Schumer to advance his nomination anyway.

Schumer announced his recommended nomination of Alter during a Human Rights Campaign dinner in New York City and emphasized that his selection would make him the first openly gay male judge on the federal bench.

In a February statement, Schumer said he recommended Alter because he’s “a brilliant attorney who possesses the knowledge, balanced views and temperament required of a federal judge.”

“His outstanding leadership skills, his commitment to justice, and his extensive experience make him an exceptional choice for a position on the federal bench,” Schumer said. “I’m proud to nominate Daniel Alter. Period. But I am equally proud to nominate him because he is a history-maker who will be the first openly gay male judge in American history.”

But based on those reported statements, the White House and Schumer determined that Alter wouldn’t be able to reach the 60-vote threshold needed in the Senate to overcome a filibuster of his nomination. It’s unclear when the decision to reject Alter was made.

Schumer’s office didn’t respond to multiple requests for comment. A White House spokesperson declined to comment. Alter also declined to comment for this story.

Deborah Lauter, director of civil rights for the Anti-Defamation League, said the apparent decision to reject Alter’s nomination based on reported comments he made on behalf of the organization is “just plain unfair and unjust.”

“Any statements he made in the course of his job with ADL were just that — he was representing the views of our organization,” she said. “It’s dismaying if in fact that led to the derailing of his nomination.”

Lauter said Alter doesn’t recall speaking to The New Republic for the 2004 article and that Alter was misquoted in the 2005 CNS article.

“It was an inaccurate report and ADL should have insisted the record be corrected at the time,” Lauter said.

Lauter clarified that the Anti-Defamation League has never objected to retailers wishing customers “Merry Christmas.”

“But the bottom line is even if he made the comment, which he didn’t, it shouldn’t have disqualified him from service as a judge,” she said.

The decision to refuse the Alter nomination likely came sometime before July, when his supporters urged Schumer to go to bat for his recommended nominee.

In a letter dated July 2, 2010, a group of 66 attorneys who worked with Alter at the U.S. Attorney’s Office for the Southern District of New York wrote that the designation of Alter to the federal bench is “a nomination worth fighting for.”

“We urge you to take all possible steps to ensure that Mr. Alter is nominated to the federal bench and promptly considered by the Senate Judiciary Committee,” the letter states.

Among those who signed the letter is James Comey, who served as deputy attorney general during the Republican administration of former President George W. Bush.

The attorneys wrote that Alter’s “nomination to the federal bench is in jeopardy” because of “demonstrably false statements” that reporters made while he was working for the Anti-Defamation League. The missive doesn’t detail why the statements Alter reportedly made to media outlets are “demonstrably false.”

“While we will let others set forth the factual reasons why these allegations are baseless, we write to state emphatically that the sentiments falsely ascribed to Mr. Alter are inconsistent with everything that we know about him,” the letter states. “Mr. Alter has dedicated his life to tolerance, public service, moderation, and fidelity to law. He is unfailingly kind, respectful, and open-minded. In both deed and character, Mr. Alter is the antithesis of the views that have been misattributed to him.”

The signers state that they “cannot imagine a more highly qualified nominee” and that the loss of Alter to the federal judiciary based on “false allegations” would be significant.

“By temperament, he is well-suited to the bench, possessing every quality one seeks in a judge: respect for all views, dedication to the public, tireless pursuit of the best legal argument, and a determination to reach decisions that will command the respect of all parties,” the letter states.

Lauter said the Anti-Defamation League sent its own letter to Schumer in July urging the senator to push for Alter’s nomination, but she declined to make the letter public.

“It was a private letter to the senator just clarifying the record and expressing support — enthusiastically and without reservation — for Danny Alter’s nomination,” she said.

Also lamenting the derailment of Alter’s nomination is Richard Socarides, a gay New York attorney who served as an adviser to President Clinton.

Socarides told the Blade the White House’s rejection of Alter’s nomination was evidence of a broken system.

“I don’t know Daniel Alter personally,” Socarides said. “I’m told he is highly qualified. We need more people like him in the federal judiciary. I don’t know why his nomination got derailed, but certainly a system in which someone like Alter can’t get confirmed is badly broken.”

HRC heralded Schumer’s announcement of his recommended nomination of Alter in February, but the organization is mum on his rejection.

At the time of the announcement, Joe Solmonese, HRC’s president, said in a statement that Alter “is eminently qualified for a position on the federal bench.”

“America is taking a step forward toward equality by evaluating an individual based on his accomplishments and without regard to his sexual orientation,” Solmonese said. “We commend Senator Schumer for his historic recommendation, and look forward to the President’s nomination.”

Fred Sainz, HRC’s vice president of communications, this week declined to comment on the White House rejection of Alter.

Schumer has since recommended the nomination of another openly gay man, J. Paul Oetken, to become a district judge for the U.S. District Court for the Southern District of New York.

The New York senator made the announcement in a Sept. 23 statement that said Oetken has “the right combination of skills, experience and dedication to [be] an excellent judge on the court.”

Oetken served as an attorney in private practice and was an associate counsel for former President Bill Clinton, according to the Schumer statement.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

22 Comments
  • Why are we wasting any more time with Obama? He is useless and certainly not a friend of the community. So much for our f–king “fierce advocate.”

    • Come, now! Were we to have Obama in charge of Civil Rights back in the 60′s, African Americans would surely be 2/3s of a real American, by now. Progress is slow when you don’t really want it. Let’s see how quickly Obama guts Social Security.

  • Was it HRC that told us that this administration was the most gay friendly of any in history? With friends like this….

  • Beverly J. Guardino,

    If this attorney said anything regarding “Under God” or the “Pleadge of Alligence”, so what? Doesn’t everyone have freedom of speech? Or maybe he was not hired because he’s a non-believer, in addition to being Gay…Obama has continuously ignorned “Separation of Church & State”, and I wish to hell someone, anyone who is a Democrate, will run against him in 2012

  • A judge not only has to be nominated, he must be confirmed. In this case, the fact that Alter appears to have pre-decided possible future cases is an important factor. This is enough to disqualify anyone–remember Kagan’s confirmation hearing? Many people will attribute his apparent bias to his gayness and if that is true, they would be convinced that any gay nominee has already pre-decided cases involving religion. That would tarnish all future gay nominees. Nevertheless, even if the allegations against Alter are eventually proven false, the controversy means that there won’t be much confidence in his decisions, and that impairs his effectiveness, Maybe it’s best to drop this one and move on to the next.

  • I agree that this system is obviously broken if a man like Alter can’t be nominated as a judge. Have we reaced a time where one needs to be living a life so bland as to have no opinions on anything or that we don’t allow for a personal view on anything. Unless there is more to the statements that Alter made I am extremely dissappointed that the Obama administration wouldn’t submit his name for a judicial appointment. They really need to develop some cajones and begin to stand up for the people that made up the base of their support.

  • Imagine if the government followed its own Constitution. Article VI, par 3, states in part “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

    SURE it won’t…

  • It’s too bad Alter’s nomination got short circuited. But what’s even worse is the childish reaction of most gay commenters. There’s no indication he was dropped by Obama because Obama didn’t want him – it was because Alter’s nomination could not get through the obstructionist Republican gantlet in the Senate, and Schumer agreed about that.

    Somebody ridiculed the idea that Obama is the most gay friendly president in U.S. history – of course he is, and that’s just a fact dictated by the rate of social progress – 50 years ago was still the dark ages, when gays were criminals in every state in the nation.

    Don’t go trashing your allies just becasue they aren’t 100%. Work against your enemies, i.e., against all Republicans, not against the best political friends we have, even if they’re luke warm. Lack of solidarity by Democrats is exactly the reason Republicans control Congress even while Democrats have large majorities.

  • He said, she said. A christian crap ass organization whines about a gay man becoming a federal judge and our fierce, spineless advocate once more kisses bigot asses. Anyone remember Shriely Shirrod? Thank you President Barak Husein Obastard.

    • Get off your high horse! Just because Obama has failed us at every single turn, doesn’t mean he will continue to do so. His Justice Department equates LGBT Americans with: Sex Offenders, Felons and Pedophiles. He proactively reinstated DADT – against the orders of a Federal judge. It was a simple mistake, made over and over and over again.

      GLBT Americans need to be more patient; 200+ years is not that long.

      The new Democratic logo is a turtle on its’ back. Even with holding clear majorities in the Senate and House, they could NOT get a single pro-equality bill passed. Was it fear that Obama might veto it? I can’t wait to see Obama “fix” Social Security!

  • @ Pogovio – You can read, right? The article CLEARLY STATES that “The White House has rejected the recommended nomination.” Could it be more clear? Do you work for the WH PR Office? Why are you giving our “fearless leader” aid and comfort? We are getting screwed by a liar and a hypocrite. Call it for what it is and move on. There is NO DIFFERENCE between what we got form Bush and what were getting from Obama.

    • OK Here’s Bill again with the rage
      How’s this for throwing us under the bus

      The Lesbian and Gay Victory Fund, a group that funds out gay, lesbian, bisexual and trans candidates regardless of party affiliation, said that so far, sixteen lesbian and gay individuals have received appointments from President Barack Obama.
      The fund said many of them applied for their positions through the Gay and Lesbian Leadership Institute’s Presidential Appointments Project.

      The appointees are:

      * Anthony Bernal – Scheduler, Office of Dr. Jill Biden
      * John Berry – Director-Designate, Office of Personnel Management
      * Brian Bond – Deputy Director, White House Office of Public Liaison
      * Ebs Burnough – Deputy Scheduler, Office of the First Lady
      * Michael Camunez – Domestic Policy Cluster Head, Presidential Personnel
      * Brook Colangelo – Chief Information Officer, White House Office of Administration
      * Brad Kiley – Director, White House Office of Management and Administration
      * Fred Hochberg – Director-Designate, U.S. Export-Import Bank
      * Karine Jean-Pierre – White House Liaison, U.S. Department of Labour
      * David Medina – Deputy Chief of Staff, Office of the First Lady
      * Dave Noble – White House Liaison, National Aeronautics and Space Administration
      * Mark Perriello – Director of Priority Placement, Presidential Personnel
      * Nancy Sutley – White House Council on Environmental Quality
      * Moe Vela – Director of Operations, Office of the Vice President
      * Kei Koizumi – Assistant Director for Federal Research and Development, Office of Science and Technology Policy
      * Alison Nathan – White House Counsels Office

      Give Pres Obama some kind of credit! Then again it’s tr0lls who didn’t support nor wanted him in the first place…YAWN

  • The Reasonable Man

    All the drama queens who are ranting about this “grave injustice” apparently failed to read the entire article. Paul Oetken — an openly gay man and outstanding attorney — has since been recommended by Schumer for a seat on the bench in the SDNY. With his credentials, and lack of controversial statements in his past, he will no doubt sail through the confirmation process. Give it a rest.

  • Someone makes a statement that may be considered anti-Christian and immediately a judgment (no pun intended) is made that he or she has pre-decided future cases, but if the same person had made pro-Christian statements they’re OK to sit for cases? That’s like saying a gay judge can’t sit for cases involving sex but a straight one can. Ridiculous. Clearly they knew he’d never make it through the approval process but it is a litmus test just the same and in violation of the sacred Constitution.

  • If this were a Repugnacant nominee with a Repugnacant prez & congress the guy would be in so fast.

  • Bobbie VandeGriff

    a[[ears that a religous litmus test is now necessary in order to beconsidered for a government position. Hearsay is permissible for dismissal whereas, unconditional support of all things “christain” is required.

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