November 3, 2011 | by Chris Johnson
Senate panel advances gay judicial nominee

Michael Walker Fitzgerald (Blade photo by Michael Key)

A Senate committee approved unanimously by voice vote on Thursday a judicial nominee who could become the fourth openly gay person to sit on the federal bench.

Michael Walter Fitzgerald, whom President Obama nominated in July, was approved the Senate Judiciary Committee en banc as part of a group of nominees.

Fitzgerald 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.

Michael Cole-Schwartz, spokesperson for the Human Rights Campaign, commended the panel for moving forward with nomination.

“Moving Michael Fitzgerald’s nomination to the Senate floor is a positive step toward confirming a dedicated legal talent,” Cole-Schwartz said. “We urge the full Senate to confirm him and help make the bench more representative of the diversity of the American public.”

When the full Senate will take up the Fitzgerald nomination remains in question. The Senate is currently is currently facing a backlog of judicial nominees on the Senate floor who haven’t yet received votes.

Erica Chabot, a Senate Judiciary Committee spokesperson, said 22 nominations were already pending on the floor before the committee approved Fitzgerald and other nominees on Thursday.

“This nomination will join those and the others reported today on the floor,” Chabot said. “Sen. Leahy has been very clear about his concerns with how long nominations are pending on the floor after being reported by the committee.”

The Fitzgerald nomination was recommended to Obama by Sen. Barbara Boxer (D-Calif.), who also praised the committee for advancing the Fitzgerald nomination and called for swift confirmation on the Senate floor.

“I am so pleased that the Senate Judiciary Committee unanimously approved Michael Fitzgerald’s nomination to serve on the federal bench,” Boxer said. “He is a highly respected attorney whose sharp intellect and experience as a former federal prosecutor and attorney in private practice will make him an outstanding judge. It is now critical that the Senate move swiftly to confirm him so he can begin serving the people of the Central District.”

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.”

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.

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.

The gay judicial nominee is no stranger to represent client in cases related to LGBT rights. Fitzgerald was involved in the settlement of Buttino v. FBI, the 1993 class-action lawsuit involving 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 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.

In addition to Fitzgerald, one other gay judicial nominee is pending before the Senate: Edward DuMont, who was nominated for a seat on the U.S. Court of Appeals for the Federal Circuit.

Obama renominated DuMont for the position in January after the 111th Congress took no action on his appointment. DuMont’s nomination has yet to be considered by the Senate Judiciary Committee. The extensive delay in moving his nomination forward has led to questions over what’s preventing the Senate from taking action.

The committee voted to approve the Fitzgerald nomination as it held over other scheduled business to start debate leading on legislation to repeal the Defense of Marriage Act. The panel is expected to reconsider the legislation next week.

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

4 Comments
  • Some years ago I came upon a situation where there was a question re a gay person working for NSA. It turns out the rule was simple – they had to be out to their immediate family. Obviously to prevent blackmail. Surely the same rule should be sufficient for the FBI

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