The U.S. Senate voted Oct. 13 to confirm the nomination of lesbian attorney Alison Nathan to serve as a federal district court judge.
The roll call vote was 48-44, thus securing Nathan's appointment to the U.S. District Court for the Southern District of New York, in Manhattan.
Nathan's was one of three judicial nominations considered by the Senate Thursday and one of two "non-consensus nominees."
Sen. Jeff Sessions, R-Ala., opposed Nathan's confirmation, saying she is too supportive of examining foreign law and not supportive enough of the death penalty. He said her willingness to review the values behind foreign law is Nathan's strategy for finding law to reach a result that U.S. law would not support.
"Her record," said Sessions, "evidences an activist viewpoint…. She has the real potential to be an activist judge."
During her confirmation hearing, Nathan said foreign law would have "no relevance to my interpretation of the U.S. Constitution." But she acknowledged that there is "an important debate" on "what role the Supreme Court's reference to foreign law is playing in the Court's decision…." She has also written that the three-drug protocol for implementing the death penalty inflicts "severe pain," violating the 8th Amendment's guarantee that the federal government will not inflict "cruel or unusual punishment."
Republican Senators Charles Grassley of Iowa and Tom Coburn of Oklahoma hinted strongly in July that they would likely oppose Nathan's confirmation on the floor of the Senate. Both cited what they saw as Nathan's lack of experience with litigation, and Coburn suggested she would been an "activist judge."
On the floor of the Senate Oct. 13, Coburn did not speak. However, Grassely, ranking minority member on the Senate Judiciary Committee, reiterated Republican criticism of Nathan, noting the American Bar Association suggests "at least 12 years' experience in the practice of law" and "substantial courtroom and trial experience" for judicial nominees.
Nathan "graduated only 11 years ago," said Grassley, and has been practicing law for only eight years.
The ABA standards also note that there is merit in "experience that is similar to in-court trial work—such as appearing before or serving on administrative agencies or arbitration boards, or teaching trial advocacy or other clinical law school courses…." This similar experience, say the ABA guidelines, "may compensate for a prospective nominee's lack of substantial courtroom experience."
However, Grassley said he had other concerns about Nathan, including her position on the 2nd Amendment ( right to "keep and bear arms" ) , the death penalty, the reference to foreign law in examining U.S. law, and what measures may be used in the war on terror.
Judiciary Committee Chairman Patrick Leahy, D-Vt., noted that, while the ABA's committee on judicial nominations did not vote unanimously that Nathan is well-qualified to serve as a federal judge, the majority did. And Nathan's rating, he said, "is equal to or better than the rating received by 33 of President Bush's confirmed judicial nominees."
Nathan is counselor to the New York state solicitor general and, prior to that, served as a special assistant to President Obama. Nathan clerked for now retired U.S. Supreme Court Justice John Paul Stevens, as well as 9th Circuit U.S. Court of Appeals Judge Betty Fletcher.
She is a former assistant professor of law at Fordham University, a former associate of the Wilmer Cutler Pickering Hale and Dorr law firm, and a former fellow at New York University Law School.
So far, the Senate has cleared two of President Obama's four openly gay judicial nominees. In addition to Nathan, the Senate has confirmed Paul Oetken, also to the U.S. District Court for the Southern District of New York.
Obama's most recent openly gay nominee, Michael Fitzpatrick, a nominee for the federal district court in Los Angeles, appeared before the Senate Judiciary Committee Oct. 4. A committee vote on his nomination is expected in the coming weeks.
However, federal appeals court nominee Edward DuMont has still not received even a committee hearing. A committee staffer said Republicans are still "reviewing" his qualifications.
With her confirmation, Nathan becomes the third openly gay judge in that federal district—along with Deborah Batts and Oetken. She becomes the fourth openly gay federal judge in the country—along with Emily Hewitt of the U.S. Court of Federal Claims. Batts and Hewitt were both appointed by President Clinton.
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