Michael W. Fitzgerald, an out gay judicial nominee proposed by President Barack Obama for the Central District of California, was favorably reported out of the Judiciary Committee on November 3 on a unanimous voice vote.
The favorable action came despite letters targeting the nomination issued the day before from two anti-gay right-wing groups, FRCAction, the legislative arm of the Family Research Council, and the Traditional Values Coalition.
The FRCAction letter noted that Fitzgerald’s Senate questionnaire stated he had “made telephone calls or knocked on doors” for the No on Proposition 8 campaign in California in 2008. The letter faulted him for not identifying his efforts as a “potential conflict of interest” in his nomination papers.
FRCAction also stated that Fitzgerald has been active with the Stonewall Democratic Club, the Los Angeles Gay and Lesbian Center, the Lesbian and Gay Lawyers Association, and the Harvard-Radcliffe Gay and Lesbian Caucus. The letter noted that the Harvard-Radcliffe group worked to block military recruiting on campus because of the discriminatory Don’t Ask, Don’t Tell policy.
Fitzgerald, FRCAction wrote, also provided pro bono representation in 1990 to a man who alleged he had been fired from the FBI due to his homosexuality.
"Mr. Fitzgerald has a history of activism that he fails to acknowledge could pose a potential conflict of interest regarding his judicial duties. This oversight raises concerns over his ability to judge impartially," FRCAction charged.
The Traditional Values Coalition wrote, "Fitzgerald’s record for liberal activism is only matched by his taste for judicial activism, as his arguments in numerous cases and extracurricular activities among homosexual transgender organizations show a militant and aggressive predilection for innovation rather than a strict adherence to the rule of law."
Alison Nathan, who was confirmed for a seat on the US Court for the Southern District of New York last month, survived an 11th-hour attempt by two other right-wing groups –– Heritage Action and the Concerned Women for America – to derail her nomination. She was confirmed on a straight-party vote on October 13 after four Republicans who voted for her in committee changed their position.
The voice vote reporting Fitzgerald’s nomination out of committee does not technically put any of its Republican members on record in support. A Senate source told Gay City News this could allow some or all of them an easy time in later opposing Fitzgerald on the floor.
An assistant US attorney in California's Central District from 1988 until 1991, Fitzgerald has since that time been in private practice, currently at the Los Angeles firm of Corbin, Fitzgerald & Athey.
Fitzgerald, 52, is a graduate of Harvard University and has a law degree from the University of California at Berkeley. Following his graduation from Berkeley, he was a clerk to US Judge Irving R. Kaufman of the Second Circuit Court of Appeals.
There are currently three out gay and lesbian federal judges with lifetime appointments –– Nathan, Paul Oetken, and Deborah Batts –– all of whom serve in New York’s Southern District.
Like Nathan, Oetken was confirmed earlier this year, while Batts has been on the court since her appointment by President Bill Clinton in 1994.
Edward DuMont, who is also gay, still awaits action on his nomination for a seat on the Court of Appeals for the Federal Circuit in Washington.