Senate committee supports openly gay judicial nominee

McClatchy NewspapersNovember 3, 2011 

WASHINGTON — An openly gay California attorney moved a crucial step closer Thursday to confirmation as a federal judge, with his smooth passage one more sign of a slowly evolving political climate.

The Senate Judiciary Committee unanimously approved the nomination of Michael Walter Fitzgerald to serve as a judge for the Central District of California, an extraordinarily busy district that stretches from San Luis Obispo to Orange County.

The 52-year-old former federal prosecutor would have his work cut out for him, if confirmed by the full Senate. Last year, 13,673 civil cases and 1,407 criminal cases were initiated in the Central District of California, the most populous in the country.

"It is now so critical that the Senate move quickly to confirm him so he can begin serving," Democratic Sen. Barbara Boxer declared, adding that she was "so pleased" with the committee's approval.

The cases themselves that Fitzgerald will face run the gamut from gaudy to sorrowful.

This week, for instance, Central District of California court records show that a Swiss watchmaker updated a lawsuit claiming the "Paris Hilton Watch" collection violated patents. In the same court, a convicted Morro Bay-area sex offender filed his latest missive in a three-year-old lawsuit against the San Luis Obispo County Probation Office and others.

Beyond the specific California cases that await, Fitzgerald is on track to become the fifth openly gay federal judge, still a noteworthy achievement on a bench with more than 860 authorized positions. But unlike in some past nominations, Fitzgerald's sexual orientation has not been a political impediment.

"Times have changed," Human Rights Campaign spokesman Michael Cole-Schwartz said in an interview Thursday. "The American people clearly support fairness, and trying to score political points based on sexual orientation is not going to fly."

By contrast with Fitzgerald's quick voice-vote approval Thursday, conservatives targeted some previous appointees for their sexuality.

In 1993, notably, the late Republican Sen. Jesse Helms of North Carolina fought the nomination of San Francisco Supervisor Roberta Achtenberg as the Clinton administration's assistant secretary of the Department of Housing and Urban Development.

"Because she's a damn lesbian," Helms explained, the conservative Washington Times reported at the time. "I'm not going to put a lesbian in a position like that."

Helms later elaborated that Achtenberg was mean and "not your garden-variety lesbian," but she nonetheless later became the first openly gay presidential appointee to be confirmed by the Senate. She now serves on the U.S. Commission on Civil Rights.

Similar resistance confronted James Hormel, an openly gay former dean of the University of Chicago Law School nominated to serve as ambassador to Luxembourg. Conservatives maintained Hormel's sexual orientation made him a bad choice for the predominantly Roman Catholic nation of half-a-million residents; stymied, Clinton sidestepped the Senate and made Hormel a recess appointment.

"He is a gay activist," Republican Sen. James Inhofe of Oklahoma, who held up Hormel's confirmation, complained during a May 1998 Senate debate. "I believe that his agenda, his personal agenda, is above the agenda of the United States."

Barriers have been falling since, albeit over time.

In July, J. Paul Oetken became the first openly gay man to win Senate judicial confirmation. Three weeks ago, the Senate narrowly confirmed the openly gay judge Alison Nathan. Like Oetken, she will serve in New York City, as does the openly gay U.S. District Judge Deborah Batts. A fourth openly gay judge, Emily Hewitt, serves on the U.S. Court of Federal Claims. Both Batts and Hewitt were appointed in the Clinton administration.

A Los Angeles native, Fitzgerald graduated magna cum laude from Harvard and earned his law degree from the University of California at Berkeley. Following several years as a prosecutor, he went into private practice and represented clients ranging from the Bank of America to criminal defendants.

Fitzgerald reported having worked as a volunteer on Barack Obama's 2008 presidential campaign, as well as on the "No on 8" campaign that opposed the California ballot measure banning gay marriage.

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