Obama Nominees And Diversity On The Federal Bench

By Nicole Flatow, originally published on American Constitution Society's blog, July 21, 2011.

Following the Senate’s confirmation of J. Paul Oetken as the first openly gay male federal judge, President Barack Obama has announced another nomination that would add diversity to our courts.


Litigator and former assistant U.S. attorney Michael Walter Fitzgerald has been nominated to the U.S. District Court for the Central District of California, becoming Obama’s fourth openly gay nominee. The others are Alison Nathan, a nominee to the Southern District of New York, and Edward Dumont, nominated to the U.S. Court of Appeals for the Federal Circuit.

These nominations have contributed to the record diversity of Obama’s nominees, Politico reports.

Despite a backlog in confirming Obama’s judicial nominations, the president has surpassed his predecessors in putting forth diverse candidates to the federal bench. Obama has nominated more female, African American, Hispanic, Asian American, Native American and openly gay candidates as federal judges than Presidents George W. Bush, Bill Clinton, and George H.W. Bush. That includes two female Supreme Court justices, one of whom is the high court’s only Hispanic justice. The numbers are particularly striking for Asian-American nominees. Obama has nominated half of the Asian-American federal judges currently on the bench.

Of course, many of those nominees haven’t had the success of Oetken in getting through the confirmation process.

As ACS Executive Director Caroline Fredrickson says in the Politico article, “The president has tried to diversify the federal bench, but this effort has hit a wall of Republican obstructionism in the Senate.”

UC Berkeley law professor Goodwin Liu would have been the only Asian Pacific American on the U.S. Court of Appeals for the Ninth Circuit if confirmed, but his nomination was filibustered after two extensive hearings and countless letters vouching for his sterling qualifications.

Dumont, the openly gay judge nominated to an appeals court rather than a district court (Oetken was confirmed to a district court seat), hasn’t even received a hearing well over a year following his nomination.

And as The Atlantic’s Andrew Cohen points out in a recent column, Native American nominee Arvo Mikkanen, who would be only the third Native American to sit on the federal courts in U.S. history (and only the second who is “open” about his background during confirmation), has been stalled for six months by his home-state congressional delegation for no other stated reason than a political dispute with the White House.

“The Senate unburdened itself Monday from one of its many shameful legacies,” Cohen writes. “But it still bears the white man's burden, and the nation's past due responsibility, of bringing Native American lawyers to the federal bench. It is no justification -- merely a convenient excuse, maybe for both parties -- that the White House didn't properly consult with Oklahoma's delegation before placing Mikkanen's name in nomination.”

Visit JudicialNominations.org to learn more about the nominations process and follow developments.