The Senate made a quiet piece of history on Monday when it confirmed J. Paul Oetken, an openly gay man, to the federal bench. This is the first time an openly gay man has been approved as a federal judge.
In January President Obama nominated Oetken to sit as a judge on the U.S. District Court for the Southern District of New York.
The Senate confirmed Oetken in an 80-13 vote after 30 minutes of positive debate. Only a simple majority vote was required so while there were quite a few abstentions from Republicans, including Senate Minority Leader Mitch McConnell (R-Ky.), a great deal of Republican support was freely given. As the vote showed, Oetken’s sexuality was only a footnote in the debate where once it would have been a major sticking point.
Even some of the chamber’s most ardent social conservatives, Tom Coburn, John Cornyn, Jeff Sessions, Jon Kyl, cast votes for Oetken. When the lopsided vote tally of 80-13 was read out, there was no cheer or reaction of any kind. Senators continued their conversations as if nothing unusual had happened.
It would be premature to believe that Oetken’s easy confirmation heralds some new post-sexual era in American politics; the fight over gay marriage continues undiminished. But it was a signal moment nonetheless. The nominee’s sexual orientation was deemed unimportant — or at least less important than his moderate politics and his pro-business record (he’s a corporate lawyer, with Cablevision).
“As the first openly gay man to be confirmed as a federal judge,” Sen. Chuck Schumer (D-N.Y.) told a nearly empty chamber before the vote, “he will be a symbol of how much we have achieved as a country in just the last few decades. And importantly, he will give hope to many talented young lawyers who until now thought their paths might be limited because of their sexual orientation. When Paul becomes Judge Oetken, he will be living proof to all those young lawyers that it really does get better.”
Reaction to Oetken’s appointment, both from the White House and from LGBT rights groups, was similarly measured yet celebratory.
Joe Solmonese, president of the Human Rights Campaign, praised the Senate for what he said was a “historic vote” in confirming an openly gay male to the federal bench.
“Confirmation of Paul Oetken serves as a role model for all LGBT people interested in serving on the judiciary and shows LGBT youth that hard work pays off,” Solmonese said.
Shin Inouye, a White House spokesperson, also commended the Senate for confirming Obama’s nomination in a statement, although he made no mention of the nominee’s sexual orientation.
“The president welcomes the confirmation of Mr. Oetken and is confident that he will serve the American people with distinction from the district court bench,” Inouye said.
Oetken’s career has been varied and noteworthy. He has practiced law with Debevoise and Plimpton since 2004 and between 1999–2001 Oetken served as associate counsel to President Clinton where he specialized in First Amendment and civil rights issues.
Oetken did not shy away from discussing his identity during the confirmation hearings either, talking freely about his work for LGBT-specific causes. He has enjoyed working with both Lambda Legal and the American Civil Liberties Union and also co-authored a friend-of-the-court brief in the landmark Lawrence v. Texas case which led to the U.S. Supreme Court striking down the country’s sodomy laws.
While Oetken is the first openly gay man to be appointed to the federal bench he is not the first gay man to serve in such a capacity. Certainly, there have been several others including the most recently retired Judge Vaughn Walker, an independently minded conservative who presided over California’s Proposition 8 gay marriage trial and later confirmed what was an open secret: that he has been in a decade-long relationship with another man.
Oetken is not the first out LGBT person to serve either. That distinction is widely attributed to U.S. District Judge Deborah Batts, an out lesbian who currently sits on the U.S. District Court for the Southern District of New York. Batts was appointed in 1994 during the Clinton administration.
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