March 15, 2012 | by Chris Johnson
Senate confirms gay nominee to Calif. federal court

Michael Fitzgerald (Blade file photo by Michael Key)

The Senate on Thursday confirmed to the bench a gay judicial nominee whom Republicans had held up for four months from receiving a floor vote along with other appointees.

Michael Fitzgerald, whom President Obama nominated for a seat on the U.S. District Court for the Central District of California in July, was approved by a vote of 91-6. A simple majority was required for confirmation.

The six senators who voted “no” were Roy Blunt (R-Mo.), Jim DeMint (R-S.C.), James Inhofe (R-Okla.), Mike Lee (R-Utah), Rand Paul (R-Ky.) and David Vitter (R-La.). Not voting were Sens. Lamar Alexander (R-Tenn.) and Orrin Hatch (R-Utah) as well as Mark Kirk (R-Ill.), who’s been recovering from a stroke.

“I am honored by the Senate’s confirmation vote today,” Fitzgerald said in a statement. “I am grateful to the President for my nomination. I am grateful to Senator Boxer for her recommendation of me to the President. I am grateful to Senator Feinstein for her support in the Senate Judiciary Committee. I look forward to serving the people of the Central District of California.”

The Senate Judiciary Committee reported out his nomination in November unanimously by voice vote to the Senate floor, but his confirmation has been held up along with other nominees.

Barbara Boxer (D-Calif.), who recommended the Fitzgerald nomination, spoke highly of him on the Senate floor prior to the vote as she chided Republicans for holding up his confirmation.

“He is an historic choice, and a vote of Mr. Fitzgerald’s nomination is long overdue, because he was voted out of the Senate Judiciary Committee unanimously 133 days ago, on Nov. 3, 2011,” Boxer said. “It really shouldn’t take this long to confirm such a highly-qualified nominee like Mr. Fitzgerald, especially because this seat has been designated a judicial emergency.”

According to Boxer’s office, former President George W. Bush’s district court nominees waited an average of 22 days as of March 2004 for confirmation after being reported out by the Judiciary Committee. Comparatively, President Obama’s district court nominees have waited an average of 93 days. Fitzgerald has waited 132 days for a vote on his nomination.

Fitzgerald was among 17 nominees pending before the Senate on which Senate Majority Leader Harry Reid (D-Nev.) filed cloture Monday as a result of Republicans objecting to floor votes on their confirmation. But as a result of a deal that was reached on Wednesday, Democrats and Republicans will move 12 district court judges and two circuit court judges through the confirmation process by May 7. Fitzgerald’s vote was locked in Thursday under the agreement.

LGBT advocates praised the confirmation of Fitzgerald and said his previous work over the years as an attorney makes him qualified for the position on the bench. Fitzgerald has had experience in private practice in addition to working as a U.S. attorney.

Chuck Wolfe, CEO of the Gay & Lesbian Victory Fund, said Fitzgerald’s legal experience “makes him an excellent choice for the federal bench.”

“He joins a still very small but growing group of openly LGBT federal judges, and we commend the Obama administration for making sure these esteemed positions are open to all qualified Americans, regardless of sexual orientation or gender identity,” Wolfe said.

Joe Solmonese, president of the Human Rights Campaign, said he applauds for the Senate for the confirming Fitzgerald — calling him “eminently qualified nominee” — as he took a jab at Republicans for holding up the nomination for so long.

“We are disappointed that it took months for the Senate to consider his nomination because Republican leadership has been refusing to give President Obama’s judicial nominees a timely up or down vote,” Solmonese said.

Michael Fleming, executive director of the David Bohnett Foundation and longtime friend of Fitzgerald’s, also had good things to say about the new judge upon his confirmation.

“I’ve known Michael for years and no one better embodies the qualities we seek to find in all of our judges — wisdom, honesty and integrity,” Fleming said. “There’s a reason why he was nominated by the president and why he has sailed through this process with such ease — because he has the skills and strengths to be a great judge.”

Lorri Jean, CEO of L.A. Gay & Lesbian Center, also said she’s known Fitzgerald for many years and believes he’ll serve the country with honor.

“I’m grateful to the President and the Senate for appointing a judge who brings to the bench not only a keen intellect, a wealth of legal experience and strong ethics, but life experience as a gay man,” Jean said. “It’s essential to have sexual orientation and gender identity diversity on the bench for the same reason it’s important to have racial and gender diversity in the judiciary; the life experience of judges provides valuable insight, and influences, their interpretation of the law. As Supreme Court Justice Sonia Sotomayor once said, ‘Personal experiences affect the facts that judges choose to see.’”

Congratulations also came from the White House.

“The president welcomes the confirmation of Michael Fitzgerald,” said White House spokesperson Shin Inouye. “He will serve the American people well on the U.S. District Court for the Central District of California.”

Fitzgerald was given a review by the American Bar Association, which gave him a rating of “unanimously well-qualified.”

Most recently, Fitzgerald worked at Corbin, Fitzgerald & Athey LLP in 1998, but prior to that experience, he worked at the Law Offices of Robert L. Corbin PC and at the law firm of Heller, Ehrman, White & McAuliffe.

The new judge 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.

In his questionnaire response to the Senate Judiciary Committee, Fitzgerald wrote that he has participated in some LGNT activism, including the 2008 campaign against Proposition 8 as a door-knocker. 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.

Fitzgerald isn’t a stranger to represent client in cases related to LGBT rights. He 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.

Fitzgerald is the fourth out federal judicial nominee chosen by the White House, but third one to receive confirmation from the Senate. Fitzgerald’s confirmation makes him the first openly gay federal judge to serve in California.

In July, the Senate confirmed J. Paul Oetken to the U.S. District Court of Southern District of New York, making him the first openly gay male to sit on the federal judiciary. In October, the Senate confirmed lesbian Alison Nathan to the same court.

Another one of Obama’s gay judicial nominees, Edmund DuMont, was withdrawn after he asked the White House to remove him from consideration. DuMont was first nominated on April 14, 2010, but his nomination languished for more than 18 months without the taking Senate taking action. He was nominated the U S. Court of Appeals for the Federal Circuit and would have been the first openly gay federal appellate judge.

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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