October 13, 2011 | by Chris Johnson
Senate confirms lesbian to federal judiciary

The U.S. Senate confirmed on Thursday an out judicial nominee to become the second-ever open lesbian to sit on the federal bench.

Senators confirmed Alison Nathan, whom President Obama nominated in March for a seat on the U.S. District Court of the Southern District of New York, by a vote of 48-44.

Senate Judiciary Committee Chair Patrick Leahy (D-Vt.) said on the Senate floor there was “no question the Senate should confirm Ms. Nathan.”

“As her resume shows, she is an accomplished nominee with significant experience in private practice, academia and government service,” Leahy said. “Twenty-seven former Supreme Court clerks have written to the Judiciary Committee in support of Ms. Nathan’s qualifications, including clerks who worked for the conservative Justices.”

Shin Inouye, a White House spokesperson, commended the Senate for confirming Obama’s nominee.

“The President welcomes the confirmation of Alison Nathan,” Inouye said. “She will serve the American people well from the District Court bench.”

Currently special counsel to the Solicitor General of New York, Nathan has also served as a special assistant to President Obama and an associate White House counsel. Before joining government service, she taught law first as a visiting assistant professor at Fordham University Law School, and later as a Fritz Alexander fellow at New York University School of Law.

All Democratic senators who were present voted in favor of the nomination. All Republicans who were present voted against her, including GOP senators known for holding pro-LGBT views, such as Sens. Susan Collins (R-Maine), Olympia Snowe (R-Maine), Mark Kirk (R-Ill.) and Scott Brown (R-Mass.).

Senators who didn’t vote were Sens. Tom Coburn (R-Okla.), Joseph Lieberman (I-Conn.), Debbie Stabenow (D-Mich.), Kay Hagan (D-N.C.), Richard Lugar (R-Ind.), David Vitter (R-La.), Tom Harkin (D-Iowa) and Joe Manchin (D-W.V.).

The Senate didn’t confirm Nathan without opposition on the floor. Republican senators spoke out against her.

Sen. Charles Grassley (R-Iowa), ranking Republican on the Senate Judiciary Committee, said he voted to report Nathan’s nomination to the floor, but couldn’t vote for her on Thursday — as well as judicial nominee Judge Susan Hickey — because of their records and American Bar Association ratings.

“Ms. Nathan and Judge Hickey both have had limited experience in the courtroom,” Grassley said. “They have failed to meet even the minimum qualifications that the ABA uses in rating process.”

Sen. Jeff Sessions (R-Ala.), who’s known for opposing pro-LGBT initiatives in Congress, also expressed concerns on the floor about Nathan’s legal experience and what he said was her belief that judges can look to foreign law in deciding cases.

“It’s very hard for me to believe that I should vote to confirm a judge who’s not committed to following our law, who believes they have a right to scrutinize the world, find some law in some other country, bring it home, and use that law to make it achieve a result in the case they wanted,” Sessions said.

Leahy defended Nathan’s nomination on the Senate floor, saying although her ABA recommendation wasn’t unanimous, a majority on the standing committee that evaluated her said she was qualified.

“I note that a majority of the Standing Committee rated Ms. Nathan ‘qualified’ to serve,” Leahy said. “I also note that Ms. Nathan’s ABA rating is equal to or better than the rating received by 33 of President Bush’s confirmed judicial nominees, who were supported by nearly every Republican senator.”

Sen. Chuck Schumer (D-N.Y.) said the claim that Nathan has made any assertion that she’d look to foreign law when deciding cases is “patently false.”

In a questionnaire response to written questions from Grassley, Nathan wrote: “If I were confirmed as a United States District Court Judge, foreign law would have no relevance to my interpretation of the United States Constitution. In this area, as in all others, I would follow binding Supreme Court precedent.”

LGBT advocates praised the Senate for confirming Nathan and sending the third openly gay person to the federal bench.

Joe Solmonese, president of the Human Rights Campaign, hailed the confirmation and said additional representation of LGBT people in the courts is necessary.

“Alison Nathan’s demonstrated intellect and dedication to public service is a model of achievement for LGBT youth and we commend the Senate for their confirmation vote today,” he said. ”With qualified LGBT attorneys all across the country, we look forward to the federal courts reflecting the diverse composition of our society in districts from coast to coast.”

Chuck Wolfe, CEO of the Gay & Lesbian Victory Fund, called the Nathan confirmation “another step toward America’s leadership class reflecting the country it serves.”

“For too long Washington has ignored the impressive talent and experience found in the LGBT community,” Wolfe said. “It’s been beholden to the opinion of extremists who wanted to exclude us. We have to continue to fight against that kind of political homophobia, and we will.”

The first lesbian — and first openly LGBT person — to sit on the federal bench is Deborah Batts, who was nominated and confirmation for a position on the U.S. District Court for the Southern District of New York during the Clinton Administration.

In July, the Senate confirmed J. Paul Oetken to another seat on the U.S. District Court for the Southern District of New York, making him the first openly gay male to sit on the federal bench.

Two other openly gay nominees are also pending before the Senate: Michael Fitzgerald, who was nominated for a position on the U.S. District Court for the Central District of California; and Edward DuMont, who was nominated for a seat on the U.S. Court of Appeals for the Federal Circuit.

The Senate Judiciary Committee held the confirmation hearing for Fitzgerald last week. The panel hasn’t reported out the nomination, but the record for committee members to submit follow up questions closed only this week.

Obama renominated DuMont in January after the 111th Congress took no action on his appointment. DuMont’s nomination has yet to be considered by the full Senate — or even the Senate Judiciary Committee.

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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