October 5, 2011 | by Chris Johnson
Gay judicial nominee sails through confirmation hearing

Michael Walter Fitzgerald (Blade photo by Michael Key)

A gay judicial nominee encountered no opposition during his confirmation hearing on Tuesday as senators focused on questions about his judicial philosophy.

Michael Walter Fitzgerald, whom President Obama nominated in July to the bench, is the fourth out federal judicial nominee chosen by the White House. Upon confirmation, he would take a seat on the U.S. District Court for the Central District of California and would be the first openly gay federal judge in that state.

Few senators attended the Senate Judiciary Committee hearing. Five judicial nominees were facing confirmation. Sen Richard Durbin (D-Ill.) chaired the hearing instead of Chair Patrick Leahy (D-Vt.). Sens. Chris Coons (D-Del.) and Mike Lee (R-Utah) were the other two senators in attendance.

Sen. Barbara Boxer (D-Calif.), who recommended the nomination to the president, praised Fitzgerald and said his previous work as an attorney makes him well-suited for a position on the federal court.

“Michael’s record in the public and private sector demonstrates that he is a brilliant lawyer and a distinguished member of the legal community, and I am confident he will make an excellent judge,” Boxer said.

In her introduction, Boxer made no mention of Fitzgerald’s sexual orientation and didn’t note that his confirmation would make him the first out federal judge in California. A statement later distributed by Boxer’s office included this information.

Prior to joining Corbin, Fitzgerald & Athey LLP in 1998, Fitzgerald worked at the Law Offices of Robert L. Corbin PC and at the law firm of Heller, Ehrman, White & McAuliffe. Fitzgerald also served as an Assistant U.S. Attorney in Los Angeles, where he handled criminal cases, such as a drug and money laundering case involving what at that time was the second-largest cocaine seizure in California.

According to Boxer’s office, Fitzgerald has tried 26 cases to verdict, and the overwhelming majority were before a jury. Around 60 percent of his practice is in federal court. Fitzgerald was given a review by the American Bar Association, which gave him a rating of “unanimously well-qualified.”

Fitzgerald wrote in his questionnaire response to the committee that he served as a volunteer making telephone calls or knocking on doors for political campaigns, including President Obama’s 2008 campaign and the 2008 campaign against Proposition 8. Fitzgerald is also a member of the Harvard-Radcliffe Gay & Lesbian Caucus. From 2007 to 2008, he served on the leadership task force for the L.A. Gay & Lesbian Center. In the 1990s, he was a member of the Stonewall Democratic Club.

Accompanying Fitzgerald during the confirmation hearing was his father, James Fitzgerald, an Army veteran of the Korean War and a retired math teacher; his mother, Vivian Fitzgerald, a retired registered nurse; and his twin brother, Patrick Fitzgerald, a federal prosecutor in Los Angeles.

The only time during the hearing when sexual orientation was brought up was when Durbin asked about Fitzgerald’s role in the settlement of Buttino v. FBI. According to Fitzgerald’s questionnaire response, the 1993 class-action lawsuit involved Frank Buttino, a gay FBI specialist who was anonymously outed to his superior, resulting in the removal of his security clearance and subsequent firing. Fitzgerald writes he asked his law firm at the time to represent Buttino on a pro bono basis.

As a result of the settlement, the FBI renounced its prior policy of viewing homosexuality as a negative factor in regard to security clearances, the FBI agreed to hire an openly lesbian special agent and Buttino’s pension was restored.

Fitzgerald said he was asked to work on the case because of his work as a U.S. attorney, which made him familiar with the FBI, and was “pleased” to work on the case because of its background. The nominee noted that the case resulted in the change of policy that kept ”gays and lesbians from being hired as special agents.”

Lee asked each of the nominees whether their advocacy roles in the past would impact their impartiality as a judge, and whether they wouldn’t “engage in political activism while on the bench.” Fitzgerald assured the Republican senator his previous work would have no influence on his decisions and he wouldn’t bring his personal or political views to bear on the cases that he considers.

“I don’t believe that it would have any influence on my service as a federal judge,” Fitzgerald said. “The bulk of my practice has been very much as a litigator for clients who have retained us for our expertise. As a judge, I would respect the rule of law and respect the court system and as a system which trying to do justice for the litigants pursuant to the facts as they were found without any reference to the background of the litigants.”

According to Senate Judiciary Committee hearing rules, the record will be kept open one week following the confirmation hearing of nominees. The committee could report Fitzgerald’s nomination to the full Senate sometime after that.

CORRECTION: An earlier version of this article misspelled the name of Michael Walter Fitzgerald. The Washington Blade regrets the error.

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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