A New York attorney who could be the first openly gay man to serve on the federal bench breezed through a confirmation hearing on Wednesday during which faced only softball questions from Democratic senators.
J. Paul Oetken, nominated by President Obama in January to serve as U.S. District Judge for the Southern District of New York, faced no opposition during a Senate Judiciary Committee hearing that only Sens. Chuck Schumer (D-N.Y.) and Chris Coons (D-Del.) attended.
In his opening statement, Oetken mentioned his partner, Charkrit “Makky” Pratayot, was in the room supporting him in addition to his brother and sister. Oetken said his father wanted to attend the hearing, but was unable because he was recovering from surgery.
Schumer recommended the nomination of Oetken to the president in September. During the hearing, the senator said he values “moderation and judicial modesty” in judicial nominees. Schumer questioned Oetken, along with the other three nominees giving testimony before the panel, what those words mean to him as well as what qualities he thinks are most important in a judge.
In response, Oetken said he agreed that moderation and judicial modesty and “crucial characteristics” for someone sitting on the bench. The nominee said the notion of judicial modesty has two parts: following precedent and decisions from higher courts as well as only deciding a case before a judge and not going beyond the controversy at hand.
“There are learned opinions that are decided for judges … in the Second Circuit and the Supreme Court [that] govern all decisions in the district court in the Southern District,” Oetken said.
Prior to his nomination as a federal judge, Oetken was practicing law at Debevoise and Plimpton. 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 is also no stranger to 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.
In his opening statement, Schumer commended Oetken for his qualifications and reputation for moderation, but also noted the significance of having the first openly gay male judge to sit on the federal bench.
“I also look for candidates who bring diverse views and backgrounds to the bench,” Schumer said. “Paul is the first openly gay man to go through an Article III confirmation process in this country, which makes this moment historic. But long after today, what the history books will note about Paul is certain to be his achievements as a fair and brilliant judge.”
Along with Oetken, the committee considered 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.
Whether Oetken becomes the first openly gay male federal judge remains to be seen. 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.
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.
Following the hearing, Schumer acknowledged to the Washington Blade the significance of the nomination of Oetken and he commended the nominee for his other qualities.
“There are three standards when I nominate judges: excellence — the should be legally excellent and not a political hack; moderation — I don’t like judges too far right; I don’t like them too far left because they tend to make law; and third is diversity in all its ramifications,” Schumer said. “I’ve worked very hard to diversify the bench and find nominees that meet all three criteria. I’m very proud to nominate Mr. Oetken because it shocked me, basically shocked me, when I heard no openly gay man had been nominated to the federal bench anywhere, and there are hundreds of judges.”
Schumer said the timing for when the panel will consider reporting the nomination to the floor is up to Chairman Patrick Leahy (D-Vt.). Still, Schumer said he hopes the vote will come “as soon as possible.”
Erica Chabot, a Judiciary Committee spokesperson, said senators have up to March 23 to submit written follow-up questions for Oetken. After the responses are returned to the panel, the chairman can list the nomination for a vote during an upcoming meeting.
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.
Asked why Alter was never nominated, Schumer told the Washington Blade the White House never announced the Alter nomination for “private” issues, but declined to elaborate.
“There were internal reasons related to some issues, but nothing to do with gender, sexual orientation,” Schumer said.