US Courts of Appeals: After a year in office, Obama nominees lag behind vacancies

by on February 17, 2010  •  In Uncategorized

From Keen News Service:

[On U.S. Courts of Appeals,] 19 of the … 179 seats are currently vacant. President Obama has only eight nominees pending for these positions. All eight are relative moderates. The same might be said of four other circuit court nominees whom Obama made and who have been confirmed thus far….

Gerald Lynch, confirmed to the 2nd Circuit last September, has perhaps the most liberal-leaning credentials. He clerked for one of the U.S. Supreme Court’s most liberal justices, William Brennan, from 1976 to 1977, and, until he became a federal district court judge in New York, he belonged to the ACLU. Also, in answering a staple question on the Senate Judiciary Committee questionnaire—about whether nominees have ever belonged to a group that discriminated on the basis of “race, sex, religion, or national origin”—Lynch wrote, “I have never been, nor would I ever be, a member of any club or organization that discriminates on the basis of race, gender, religion, national origin, age, disability, or sexual orientation.”

David Hamilton, who was confirmed in November to the 7th Circuit, was also once a board member of the state ACLU in Indiana. His record includes authoring a brief in a divorce case, defending the right of a father with HIV to retain his parental rights. Hamilton said terminating those rights because the man had HIV was unconstitutional.

Of the eight nominees still awaiting confirmation, three are in the 4th circuit where their numbers could well tip the political balance towards the middle. Only one of the nominees for that circuit, Barbara Keenan, has any sort of paper trail on gay-related matters. Keenan, who has served since 1991 on the Supreme Court of Virginia, wrote the dissent from the state court’s 1995 decision denying Sharon Bottoms custody of her child because Bottoms was openly gay. More recently, she wrote the unanimous decision respecting a decision of a Vermont family court that granted joint custody of a child to both the biological mother, Lisa Miller, and her former civil union partner, Janet Jenkins. In both cases, however, Keenan’s reasoning was based on procedural issues.

As a trial judge, Keenan in 1984 ruled that the state went too far when it forced a bookstore to shut down because sexually explicit activities—including homosexual activities—were taking place at the store. Keenan ruled that closing the store was too broad a remedy to address the problem. An appeals court later reversed her decision…

Gay civil rights issues have been of some interest to Republicans on the Senate Judiciary Committee. During the confirmation process, judicial nominees answer questions at a public hearing but also questions posed to them in writing. Many of the questions posed by Republicans thus far have been essentially identical, suggesting some outside entity submitted the questions to each of the Republican senators and asked them to pose the questions to the nominees. One question asks, in a roundabout way, about the constitutionality of the Defense of Marriage Act (DOMA).

Hamilton essentially dodged the question by offering that he was “not aware of any court decision concluding that [DOMA] would violate the United States Constitution.”

One of the more unusual questions was this: “During his campaign, President Obama announced: ‘We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old-and that’s the criteria by which I’ll be selecting my judges.’ Which, if any, of these categories do you believe best describes your judicial philosophy as laid out by the President?”

Most of the nominees have dispensed with the question fairly quickly, saying either that empathy plays no role in their judicial decision-making or that, to the extent that it does, it is empathy for all….

Most importantly, President Obama has 12 more vacancies on the circuit courts which he has not yet submitted a nominee…. And given that most cases are never heard by the U.S. Supreme Court, the appointments to the appeals court level have the potential to affect LGBT lives in the various circuits for years to come.


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