Making judicial history
WASHINGTON — The remarkable thing about what happened on the Senate floor Monday night was that it was utterly unremarkable.
The matter under consideration — the nomination of the first openly gay man to serve on the federal bench — would at one time have been a flashpoint in the culture wars. But Paul Oetken was confirmed without a word of objection on the Senate floor and with hardly a mention in the commentariat.
Even some of the chamber’s most ardent social conservatives — Tom Coburn, John Cornyn, Jeff Sessions, Jon Kyl — cast votes for Oetken. When the lopsided vote tally of 80-13 was read out, there was no cheer or reaction of any kind. Senators continued their conversations as if nothing unusual had happened.
It would be premature to believe that Oetken’s easy confirmation heralds some new post-sexual era in American politics; the fight over gay marriage continues undiminished. But it was a signal moment nonetheless. The nominee’s sexual orientation was deemed unimportant — or at least less important than his moderate politics and his pro-business record (he’s a corporate lawyer, with Cablevision).
“As the first openly gay man to be confirmed as a federal judge,” Sen. Chuck Schumer, D-N.Y., told a nearly empty chamber before the vote, “he will be a symbol of how much we have achieved as a country in just the last few decades. And importantly, he will give hope to many talented young lawyers who until now thought their paths might be limited because of their sexual orientation. When Paul becomes Judge Oetken, he will be living proof to all those young lawyers that it really does get better.”
But Schumer observed, correctly, that this bit of history was an “otherwise quiet moment” for the Senate. The ranking Republican on the Senate Judiciary Committee, Chuck Grassley of Iowa, gave a brief speech in support of Oetken, mentioning the nominee’s Iowa roots but nothing about his homosexuality.
The proceedings were so routine that Judiciary Committee Chairman Patrick Leahy made only a spare mention of this “important milestone” before using his floor time to deliver an unrelated speech about the FBI director. Because there were no more speakers, most of the 30 minutes allotted for debate were passed in a quorum call.
Closeted gay men have probably served as judges since the beginning of the Republic. And a lesbian, Deborah Batts, has been a federal judge since 1994. But when Batts went before the Judiciary Committee, her homosexuality was left unmentioned in the confirmation hearings.
Oetken, by contrast, downplayed nothing about his sexual orientation: his work with Lambda Legal and the ACLU Lesbian, Gay, Bisexual & Transgender Project, or his co-authorship of a Supreme Court amicus brief opposing an anti-gay law. At his confirmation hearing, he introduced Grassley to his partner.
Opposition was relegated to where it belongs: in the dark recesses of the Internet. “A vote to confirm this nominee is in effect a vote to subject New York by force of judicial fiat to the homosexual agenda, lock, stock, and barrel,” wrote one commentator on World Net Daily. The posting warned of “Oetken’s homosexuality on the sleeve approach” and said “he is likely as well to harbor animosity toward the proponents of traditional sexual morality.”
Tellingly, it was signed by “Frank J. Bleckwenn” — a pseudonym.
Grassley and his colleagues had no use for such poison. “Mr. Oetken grew up in my state of Iowa,” Grassley said, calling the candidate a “consensus nominee.” He recited Oetken’s credentials, including his Yale Law degree and Supreme Court clerkship. “I support this nomination and congratulate him on his professional accomplishments,” Grassley said.
To his credit, that is all Grassley thought relevant.