September 24, 2012 | by Chris Johnson
Gay judge criticized in conservative congressional scorecard
U.S. District Judge Michael Fitzgerald

Michael Fitzgerald (Blade file photo by Michael Key)

Anti-gay groups are decrying the Senate confirmation of a gay federal judge as part of their annual congressional scorecard evaluating the commitment of House and Senate lawmakers to social conservative values.

The scorecard, a joint publication of the Family Research Council and Focus on the Family’s CitizenLink, was made public late Sunday night.

For the Senate, the scorecard rates members on the basis of seven votes over the course of this year — including the confirmation of U.S. District Judge Michael Fitzgerald, who was approved overwhelmingly in March by a 91-6 vote. The scorecard says, “FRC Action and CitizenLink Opposed this Confirmation.”

The scorecard doesn’t explicitly mention that Fitzgerald is gay, but says he “supported liberal activist organizations and worked to promote homosexual rights in the state of his judgeship.” The anti-gay groups cast in a negative light Fitzgerald’s work benefiting the LGBT community prior to his confirmation as a judge and accuse him of withholding information about his past in the questionnaire response he submitted to the Senate Judiciary Committee:

Nominated on July 20, 2011, by President Barack Obama to the U.S. District Court for the Central District of California, Mr. Fitzgerald has supported liberal activist organizations and worked to promote homosexual rights in the state of his judgeship. Mr. Fitzgerald supported activist organizations, such as the Harvard-Radcliffe Gay and Lesbian Caucus that opposed ROTC recruiting at Harvard at the same time now-Supreme Court Justice Elena Kagan was Dean at Harvard Law and refused to allow ROTC recruiters on campus. Mr. Fitzgerald also provided pro-bono work in the 1990 case, Buttino v. F.B.I., in which an FBI agent alleged he was wrongfully dismissed for his sexual preference only to be shown during the case to have lied during an FBI investigation. Mr. Fitzgerald also worked to oppose Proposition 8 in California and failed to mention many of his actions in a questionnaire to the Senate that would have revealed potential conflicts of interest.

Other LGBT-relevant votes by which the scorecard evaluates members of the Senate include passage in April of a bill with explicit LGBT-protections to reauthorize the Violence Against Women Act. The anti-gay group says the Senate version of the legislation “would discriminate against religious grantees who aid abused women if the grantees are opposed to homosexual behavior as a matter of faith.”

Additionally, the scorecard includes the cloture vote that led to the confirmation of Mari Carmon Aponte as U.S. ambassador to El Salvador. She came under fire from social conservatives in part because of a pro-gay op-ed piece she wrote for an El Salvador newspaper during the month of Pride.

Five senators managed a perfect score of “100 percent” as a result of the scorecard: Sens. Roy Blunt (R-Mo.), Jim DeMint (R-S.C.), James Inhofe, (R-Okla.), Mike Lee (R-Utah) and Rand Paul (R-Ky.).

Fred Sainz, vice president of communications at the Human Rights Campaign, responded to the scorecard by invoking former President Reagan and saying the document reflects the Family Research Council’s continued hostility to the LGBT community.

“There they go again,” Sainz said. “Beyond death and taxes, the only other thing that you should count on is that FRC will falsely — and often hatefully – misinterpret issues important to LGBT equality. Their scorecard provides excellent examples of their bizarre animus against members of our community.”

Sainz took issue with the scorecard’s inclusion of the Fitzgerald confirmation vote, noting many Republican senators voted to confirm the judge.

“Despite the fact that Judge Fitzgerald was confirmed by a bipartisan majority of the U.S. Senate (to include Republican senators from Alabama, Georgia, Mississippi and Texas; not to mention Republican Leader Mitch McConnell and Senators McCain and Ayotte), FRC still is hell-bent on the notion that Fitzgerald is out of the mainstream,” Sainz said. “With every passing day, it becomes clearer that it’s FRC that’s out of the mainstream and in fact, painfully representative of an era of discrimination and bigotry.”

Sainz added he expects HRC to issue its own scorecard in late October.

For the House, six votes are included in scorecard, including votes on measures that would restrict abortion rights and repeal health care reform as well as a measure reaffirming the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage. The measure was an amendment to Commerce-Justice-Science appropriations legislation offered by freshman Rep. Tim Huelskamp (R-Kansas) and approved by a vote of 245-171.

But scorecard misstates the practical effect of that amendment, saying the measure would stop the Justice Department from litigating against DOMA in court — a path the Obama administration has followed after declining to defend DOMA. Media reports had previously indicated that Huelskamp intended to offer an amendment to that effect, but the measure ended up saying no federal funds could be used to contravene DOMA, which would do nothing to prevent the Justice Department from presenting the view of the federal government in court that DOMA is unconstitutional.

The Huelskamp amendment isn’t the only one reaffirming DOMA that was offered on the House floor this year. Rep. Steve King (R-Iowa) submitted a similar amendment that passed on the House floor as part of a defense spending measure. It’s unclear why the scorecard doesn’t includes this vote as part of its evaluation of House lawmakers.

More than 100 members of the Republican-controlled House are credited with voting each time with views consistent with the Family Research Council and CitizenLink, including Reps. Michelle Bachmann (R-Minn.), Allen West (R-Fla.) and Vicky Hartzler (R-Mo.).

FRC didn’t immediately respond to questions about the scorecard.

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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