March 13, 2011 | by Chris Johnson
Senate hearing set for gay judicial nominee

A Senate hearing has been scheduled on Wednesday for a judicial nominee who, if confirmed, could become the first openly gay male to sit on the federal bench.

The Senate Judiciary Committee is set to considered the nomination of J. Paul Oetken, whom President Obama nominated in January to become a U.S. district judge for the Southern District of New York. The hearing is scheduled for 2:30 p.m. in Room 226 of the Dirksen Senate Office Building.

Sen. Chuck Schumer, who recommended the nomination of Oetken to the bench in September, is set to preside over the hearing. Obama officially nominated Oekten to the position based on Schumer’s recommendation.

According to Schumer’s office, Oetken has practiced law at Debevoise and Plimpton, and since 2004, has served as associate general counsel at Cablevision. From 1999 to 2001, Oetken was associate counsel to President Clinton and specialized in First Amendment issues, presidential appointments, ethics, civil rights, and legal policy.

Oetken also served in various roles as an LGBT advocate. The nominee has been involved with Lambda Legal and the American Civil Liberties Union. Additionally, Oetken co-authored a U.S. Supreme Court friend-of-the-court brief in Lawrence v. Texas, which struck down sodomy laws throughout the country.

Along with Oetken, the committee is slated to consider during the hearing three other nominations: Bernice Bouie Donald, who’s been nominated to become U.S. circuit judge for the Sixth Circuit; Paul Engelmayer, who’s also been nominated to become a U.S. district judge for the Southern District of New York; and Ramona Villagomez Manglona, who’s been nominated to become a judge for the district court for the Northern Mariana Islands.

Obama in January also nominated another openly gay man to the federal bench, Edward DuMont. The president tapped him to serve as an appellate judge and to sit on the U.S. Court of Appeals for the Federal Circuit.

Whether the Senate first grants Oetken or DuMont confirmation will determine who becomes the first openly gay male to serve on the federal bench. Should DuMont receive confirmation, he would also become the openly LGBT federal appellate judge.

The Senate is considering the nomination of Oetken after the White House rejected the nomination of Daniel Alter, another New York attorney and former director of civil rights for the Anti-Defamation League, for the same position.

In October, the Washington Blade reported that the White House rejected the Alter nomination, which was recommended by Schumer, based on comments he reportedly made challenging inclusion of the phrase “under God” in the Pledge of Allegiance and suggesting that merchants not wish shoppers “Merry Christmas” during the holidays. Alter has denied he made the reported comments.

While Oetken could be the first openly gay male to serve on the federal bench, he wouldn’t be the first openly LGBT person. In 1994, President Clinton nominated Deborah Batts, an out lesbian, to serve as federal judge also for the U.S. District Court of the Southern District of New York.

The San Francisco Chronicle reported last year Judge Vaughn Walker of the U.S. District Court for Northern District of California is gay, although Walker wouldn’t comment on the reporting. Walker presided over Perry v. Schwarzenegger, a federal case that will determine the constitutionality of Proposition 8 in California.

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

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