Out Gay Judicial Nominee Fitzgerald Has Senate Hearing

Posted by Chris Geidner
October 4, 2011 7:25 PM |

Screen shot 2011-10-04 at 3.52.38 PM.png[Image: Michael Fitzgerald testifies before the U.S. Senate Judiciary Committee on Oct. 4, 2011.]

President Barack Obama's fourth out LGBT judicial nominee, California attorney Michael Fitzgerald, appeared before the U.S. Senate Judiciary Committee this afternoon along with three other federal trial court nominees for a brief hearing on their nominations.

Fitzgerald was nominated by Obama on July 20 for a seat on the U.S. District Court for the Central District of California.

Michael Fitzgerald received an American Bar Association rating of "unanimously well qualified." A former assistant U.S. Attorney, he currently is a lawyer with Corbin, Fitzgerald and Athey in Los Angeles.

Fitzgerald, in his opening statement, thanked the president for his nomination, as well as for the support of Sen. Barbara Boxer (D-Calif.).

Sen. Dick Durbin (D-Ill.) chaired the hearings, which he led off by asking the nominees about their view of judicial temperament. He then asked Fitzgerald specifically about a case on which he had worked earlier in his career, Buttino v. FBI.

In Fitgerald's written questionnaire provided to the committee, he described the case, writing, "[Frank] Buttino was a gay FBI special agent who was anonymously 'outed' to his Special Agent-in-Charge, which ultimately resulted in the removal of his security clearance and concomitant firing as an FBI special agent."

Buttino filed a class-action lawsuit against the Bureau, and, at Fitzgerald's request, he and his firm -- Heller, Ehrman, White & McAuliffe -- represented the class at trial. After several days of trial, the case settled, with the FBI making significant policy changes as a result.

Today, of the result Fitzgerald said, "The FBI agreed to no longer use security concerns as means to keep gays and lesbians from being hired as special agents, and Mr. Buttino's pension was restored."

Sen. Mike Lee (R-Utah) also questioned the nominee, talking about Fitzgerald's role working "personally and professionally as an activist in various political and legal causes" and asking about the "difference between advocacy and jurisprudence."

As a judge, I would respect the rule of law, I would respect the court system as a system which is trying to do justice for the litigants in front of it pursuant to the facts as they were found without any reference to the background of the litigants ... and, of course, pursuant to the binding precedent of the Supreme Court and of our circuit court."

He concluded: "I would not bring any personal or political views to bear on any of the cases that I determined as a United States district judge."

Pending any follow-up questions from committee members, the committee can vote on Fitzgerald's nomination, at which point it could go to the full Senate for a vote.

Earlier this year, U.S. District Court Judge J. Paul Oetken, an out gay attorney practicing in New York City, was nominated by Obama for the Southern District of New York, a nomination approved by the Senate in July.

This past week, Senate Majority Leader Harry Reid (D-Nev.) announced that a vote on a second out LGBT judicial nominee, Alison Nathan, would be coming in the next several weeks.

The final of the four out LGBT judicial nominees, Edward DuMont, has seen no progress on his nomination to the U.S. Court of Appeals for the Federal Circuit, even though he was the first out LGBT judicial nominee and received a rating of "unanimously well qualified" from the ABA. Originally nominated by Obama in April 2010, his nomination languished in the 111th Congress. At the end of the session, his nomination was returned to the president, who renominated DuMont on Jan. 5 in the 112th Congress.

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