Alison Nathan joins NY's Southern District bench despite 11th-hour GOP desertion
Chuck Schumer, New York’s senior senator, found himself scrambling on October 13 to ensure that what had been shaping up as a relatively noncontroversial confirmation of a federal judicial nominee he recommended in fact play out successfully.
That day –– which found Schumer positioned in the Senate well to guarantee his fellow Democrats stood with him –– turned into a nail-biter, but in the end, Alison Nathan, an out lesbian appointed by President Barack Obama in March to a seat on the US Court for New York’s Southern District, was confirmed. The victory came on a strict party-line vote of 48-44, but was a rebuke to two right-wing organizations –– Heritage Action and Concerned Women for America –– that mounted a last-minute assault on Nathan just hours before the floor action.
“It was a sneak attack,” Schumer told Gay City News of the effort launched the morning of the confirmation vote. Asked whether the groups or any other opponents of Nathan had been working the issue prior to that, the senator said, “Not that I knew of.”
Nathan has most recently served as special counsel to the solicitor general of New York State, a part of the Attorney General’s Office, and prior to that was an associate White House counsel and special assistant to Obama. After earning her JD from Cornell University Law School in 2000, she clerked for Ninth Circuit Court of Appeals Judge Betty Fletcher and later Supreme Court Justice John Paul Stevens.
Though Nathan is only the second out lesbian confirmed for lifetime tenure on the federal judiciary, up until the morning of October 13, her nomination moved along without significant problems. On July 14, it was voted out of the Judiciary Committee with the support of four GOP senators –– chair Chuck Grassley of Iowa, Lindsey Graham of South Carolina, John Cornyn of Texas, and Michael Lee of Utah.
Consideration of her appointment was scheduled among a group of two nominees taken up on October 13 for which the floor rules did not require a cloture vote, eliminating the Republicans’ ability to wage a filibuster to block it. That morning, however, Heritage Action, an advocacy arm of the longstanding right-wing Heritage Foundation think tank, announced it would be scoring the Nathan confirmation as a “key vote” in its legislative scorecard. Heritage Action, launched a year and a half ago, issued its first such scorecard in August, ranking senators according to their votes on 19 bills and their co-sponsorship position on four. The group is selective in identifying “key votes,” and Nathan’s nomination had suddenly become very important to it.
A posting on the group’s website charged, “Nathan believes that foreign law can be used when determining the meaning of the US Constitution,” and said she lacked “courtroom experience.”
At the same time senators were hearing news of Heritage Action’s “key vote” designation, they were also receiving a letter from Concerned Women for America (CWA), another right-wing group that amplified the charges Heritage lodged against the nominee. “Nathan is a transnationalist who believes international law should be binding on the United States,” the group’s chief executive officer, Penny Nance, wrote. Nance raised that issue in the specific context of the 2005 Supreme Court ruling that struck down capital punishment applied for crimes committed under the age of 18. She also faulted Nathan’s views on the rights of accused terrorists to be tried in US courts.
To be sure, “national sovereignty” is one of the issues highlighted on the CWA website, but it is the last of six, following “sanctity of life,” “religious liberty,” “family” (the first line of which reads, “God made marriage between a man and a woman”), “pornography,” and “education” (a section that emphasizes the authority of parents in teaching children right from wrong). Whatever concerns CWA has about international law, they are subordinate to the group’s social issues agenda.
“Nathan has a long history as political activism [sic] with Lesbian Gay Bisexual Transgender (LGBT) [sic] which calls into question her impartiality and judicial temperament,” Nance wrote. “Her biases are so ingrained and so much the main thrust of her career that it [sic] not rational to believe that she will suddenly change once confirmed as a judge.”
The unanimous Republican vote against Nathan showed that even among moderate Northeastern and Midwestern GOP senators, the hard right attack had made Nathan toxic. However, at least one of the four GOP committee members who flip-flopped between the Judiciary vote and floor consideration may not have had his heart in the last-ditch fight against Nathan, calling Schumer to warn him that all four Republican yes votes would now be nos. Schumer would not say which of the four tipped him off, nor would he speculate as to why. He did say it was “unusual” for four Judiciary Committee members to backtrack on their support for a nominee and that the strong bipartisan vote in Judiciary signaled that Republicans had not originally sought to derail Nathan.
When Schumer got the call, he knew five Democrats were missing that day, but did not know how many Republicans were present. Faced with the possibility that as many as 47 GOP votes could line up against Nathan, it became critical to deliver all 48 Democrats in support.
Asked if he worried about Democratic defections, he said, “You’re always concerned. There are some Democrats who may say, ‘Well, all the Republicans are voting against her, maybe I should too.’ Especially those in the reddest states who may not want to vote with a bloc that is all Democrats.”
Assessing the unanimous Democratic vote, Schumer said, “People stepped up to the plate.” The absence of three Republicans gave Nathan some cushion, as well.
Alabama Republican Jeff Sessions, speaking during the floor debate, dutifully repeated the lines of attack laid out hours earlier by Heritage Action and CWA.
Schumer told Gay City News he viewed the right-wing attack on Nathan as “bigoted,” saying of the CWA letter, “That it was ungrammatical was not the worst of it. The implication was that no LGBT judge can be unbiased, and that is outrageous and is biased in itself.”
Still, in pulling together his floor remarks about Nathan, Schumer decided that challenging the anti-gay animus in the attack on the nominee “might hurt the cause.” Instead, he vigorously disputed the charge that Nathan would apply foreign law to cases before her or would prove weak on national security.
Schumer also addressed the criticism that the American Bar Association panel that reviewed the nominee did not give her any “well qualified” ratings, with the majority instead judging her “qualified,” with a minority saying she was “unqualified.” The New York Democrat noted that 33 nominees of former President George W. Bush’s were confirmed with identical ratings.
“The ABA is a bit hidebound,” Schumer explained of Nathan’s ratings. “Their conclusion is about judicial experience –– and because she is young.” The new judge will turn 40 next year.
Nathan’s confirmation was a source of pride for Schumer that he was eager to talk about. In comments to this newspaper a few days after the vote, he reiterated a statement he made at the February Human Rights Campaign dinner in Manhattan that, in making judiciary recommendations to the president, he looks for excellence, moderation, and diversity.
In fact, of 21 judicial recommendations Schumer has made –– and were acted on by the president –– since joining the Senate in 1999, just six have been straight white men. Eight nominees have been women; five, African-American, and one, Caribbean-born; two, Latino; and one, Asian-American.
Schumer also holds the distinction of having nominated two of the three out gay or lesbian judges with lifetime appointments on the federal bench. Earlier this year, J. Paul Oetken became the first out gay man to win Senate confirmation to a federal district court seat –– also in the Southern District and at Schumer’s recommendation.
The only other federal judge with a lifetime appointment –– those authorized under the Constitution’s Article III –– is Deborah Batts, appointed to the Southern District bench in 1994 by President Bill Clinton.
Two other out gay Obama nominees for the federal judiciary –– Edward DuMont, for a seat on the Court of Appeals for the Federal Circuit in Washington, and Michael W. Fitzgerald, for a seat on the Central District of California Court –– await Senate action.
A recent book by University of Massachusetts at Amherst professor Sheldon Goldman, “Picking Federal Judges,” points out that Obama is achieving nationwide diversity on the judiciary comparable to Schumer’s record on recommendations. More than 70 percent of the judges confirmed during his presidency have come from groups other than white males. Goldman cited administration figures showing that of 98 confirmed, 21 percent are African-American, 11 percent are Latino, and seven percent are Asian-American. Forty-seven percent of the Obama judges confirmed are women. Bush won confirmation for 322 judges, 18 percent of whom were non-white and 22 percent of whom were women. For Clinton’s 372 confirmations, 25 percent were non-white and 29 percent were women.
Asked whether he has received prodding from the administration to offer diverse judicial recommendations, Schumer said no, and noted that his commitment on that score dates to his earliest days in the Senate.
In fact, of the four judges Schumer recommended during the Clinton and Bush presidencies, just one was a white male.
“I hope to set an example,” he said.
