After 18 Months Of Delays, First Openly Gay Court of Appeals Nominee Asks Obama To Withdraw Nomination

Edward DuMont

Edward DuMont is an outstanding attorney. A former Supreme Court advocate in the U.S. Solicitor General’s office and later a senior DOJ official responsible for computer crime, e-commerce and privacy, DuMont held a prestigious clerkship with conservative superjudge Richard Posner, and was voted one of the best appellate attorneys in the country in six different annual surveys of his peers. After President Obama nominated DuMont to the United States Court of Appeals for the Federal Circuit, three former Republican Solicitors General endorsed his nomination.

DuMont is also openly gay — indeed he would have been the first openly gay federal appeals judge in American history if he had been confirmed. Sadly, that will not happen. In a recently released letter, DuMont asked President Obama to withdraw his nomination — citing the nearly limitless ability of just a few senators to shut down the confirmation process:

Although I was first nominated more the 18 months ago, the Senate Judiciary Committee has not held a hearing on my nomination. My understanding is that this inaction results from opposition on the part of one or more members of the Committee minority. While I regret this, I also recognize that any degree of opposition can be enough, as a practical matter, to prevent action by the full Committee or the Senate. Given the passage of time, that appears to be the case here.

Under these circumstances, drawing the process out further does not seem either sensible for me or fair to the Federal Circuit, which has important work to do and deserves to be able to address it with a full complement of active judges. Accordingly, I respectfully request that you withdraw my nomination at this time.

DuMont is correct to be concerned about the dysfunction that now rules our Senate. By this point in their presidencies, both of President Obama’s two predecessors had confirmed 50 more lower court judges than have been confirmed under Obama. In today’s filibuster-driven Senate, unambiguously qualified nominees with impressive bipartisan support languish until their nominations finally die of old age.

Worse, while DuMont’s opponents in the Senate have refused to even explain why they believe he is unsuited for the bench, it is difficult to ignore the fact that DuMont is not the first openly gay nominee to receive questionable treatment from Senate Republicans. Last month, the GOP caucus suddenly decided to oppose lesbian Judge Allison Nathan’s nomination to a federal court in New York after two anti-gay group announced they were opposing her. Like DuMont, Nathan is an exception attorney — a former Supreme Court clerk, even — and had broad bipartisan support. Indeed, many of the Republican Senators who voted against her confirmation on the Senate floor first voted for her in committee.

In other words, it’s difficult to escape the conclusion that Senate Republicans are holding gay nominees to a different standard than everyone else.