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.