Since taking office, President Obama has quadrupled the number of openly gay judges on the federal bench — although this is as much a testament to America’s long legacy of discrimination as it is to Obama’s commitment to diversity. Prior to Obama’s presidency, there was one openly gay judge with a lifetime appointment to the federal bench. Today, there are four.
All four of these out judges, however, are district judges — the lowest ranking federal judges. To date, no openly gay lawyer has served as a federal appellate judge or as a Supreme Court justice. In his first term, President Obama nominated openly gay attorney Edward DuMont to serve on the United States Court of Appeals for the Federal Circuit, but DuMont eventually withdrew his nomination after 18 months of “one or more members of the [Senate Judiciary] Committee minority” obstructing his confirmation.
Yesterday, the President announced he would take another shot at placing an openly gay judge on this same court, nominating Department of Justice attorney Todd Hughes to fill a seat on the Federal Circuit.
It is certainly good news that the President wants to welcome an openly gay judge into the federal appellate bench, but it should be noted that the Federal Circuit is a specialty court that deals primarily with patents. Obama deserves praise for showing a greater commitment to diversity on the bench than any of his predecessors, but there are also many talented gay attorneys (or even some Obama-appointed district judges) who would make excellent court of appeals judges on courts of general jurisdiction.
In any event, the paucity of gay judges in this country gives the lie to a claim conservative superlawyer Paul Clement made to the Supreme Court in his brief defending the unconstitutional Defense of Marriage Act. Clement wrote that gay people should not have equal rights because they are too powerful.