A seismic event occurred on the Senate Floor this past Monday night. By an 80-13 vote, the Senate confirmed the appointment of J. Paul Oetken to serve as a federal judge for the U.S. District for the Southern District of New York, one of the most influential benches in the nation with primary judicial oversight over Wall Street.
The action was seismic not because an Obama appointee actually made it through the confirmation process relatively quickly - a rarity. It was seismic not because the appointee garnered the unanimous support of Democrats despite the appointee’s very pro-business credentials as the head litigator at Cablevision, a much-maligned cable, entertainment, and sports behemoth.
The Senate’s action was seismic because the Senate confirmed, for the first time, an openly gay man to serve on the federal bench. There already is an “acknowledged” lesbian on the federal bench, but her sexuality was a carefully avoided issue when she was confirmed during the Clinton Administration.(Plus, the idea of two women together is hot and not the same for those wigged out by male homosexuality. After all, “straight” porn always has a girl on girl scene so it’s not gay.)
There were no floor objections, no apocalyptic warnings of the homosexual agenda, and perhaps most surprisingly, no accompanying fundraising drive by social conservatives to cash in on what has been lucrative red meat in the past.
Nobody seemed to care that the dude likes to bed down with the dude Oetken introduced as his partner to the Senate Judiciary Committee during his March confirmation hearings. That in itself is pretty seismic.
Ardent social conservatives in the Senate voted aye. Sen. Tom Coburn (R-OK), who in 2004 warned: “The gay community has infiltrated the very centers of power in every area across this country” and whose “agenda is the greatest threat to our freedom that we face today” aided and abetted in that infiltration and threat with a “yes” vote.
Sen. John Cornyn (R-TX), who compared gay marriage to “your neighbor marrying a box turtle” and decried a US Supreme Court decision in “Lawrence v. Texas” that de-criminalized consensual sex between adults did not seem to care that Oetken co-authored an amicus brief on behalf of the National Gay and Lesbian Law Association in that same case. The Texan voted in the affirmative.
Sen. Bob Corker (R-TN) saw fit to comment on a NJ Supreme Court decision on marriage equality in its state while running for office in Tennessee, deriding “yet one more example of activist, liberal judges creating bad law from the bench.” He then gave thumbs up to a judge that will have the choice of marriage to his boyfriend this Sunday provided by his state legislature.
Sen. Chuck Grassley (R-IA) - another town crier on the threat to my own marriage by Steve and Bill (native Iowans, no less) down the street rather than all the fine women at Jaleo - applauded Oetken’s Iowan roots, saying it “prepared him for his future success in New York.”
In all, 26 Senate Republicans did not bat an eye in providing a lifetime appointment to one of the most powerful benches in the country to an unabashed member of Lambda Legal, the ACLU LGBT Project, the Human Rights Campaign, GAYLAW, and the National LGBT Bar Association. Nine of them just voted no with nary a word of objection. There was a golden opportunity to make some serious hay and not a whimper or even morning after pushback.
It was one of the finest and most honorable acts by the U.S. Senate in recent memory: to affirm one’s professional and legal credentials without regard to sexuality and with no drama. It also affirmed that body’s intentional mission to be the more deliberative, and less reactionary, of Congress’ two chambers.
The Senate oversaw the dismantling of the “Don’t Ask, Don’t Tell” policy of the Pentagon and held hearings just this Wednesday on repealing the “Defense of Marriage Act (DOMA).” In contrast, House Republican leadership hired outside counsel to defend DOMA in the courts after the Justice Department decided overt inequality and exclusion was no longer legally sustainable.
The new mantra? “They’re queer, they’re here. Yawn .” (Even USA Today, our vanilla snapshot of American mores, ran a cover story this past Wednesday on the lack of interest in the sexuality of a growing number of gay political candidates.)
You can see that emerging reasonableness in the Senate with its bipartisan “Gang of Six” that is working with Obama to revive the “grand plan” of addressing the nation’s toxic debt and its immediate need to address the debt ceiling crisis. Meanwhile, the House Republicans are driving a “cut, cap, and balance” legislative initiative that is openly acknowledged as having absolutely no chance of moving past the House.
It was a good week for the Senate. And while the issue of LGBT equality is far from resolved, and the nation is still too perilously close to an economic calamity because of partisan intransigence, there were glimmers of hope. Hope that the grown-ups in the Senate could lead the children from the House to compromise and resolution and to see that a really smart lawyer that happens to bat from the other side of the plate would make a good judge, not simply a gay judge.