The U.S. Senate voted Tuesday afternoon (Sept. 24) to confirm openly gay nominee Todd Hughes to serve on the U.S. Circuit Court for the Federal Circuit. The 98 to 0 vote makes Hughes the first openly gay nominee to be confirmed for a federal circuit position.
The confirmation comes just one week after the Senate confirmed Elaine Kaplan to serve as a judge on the U.S. Court of Federal Claims. Kaplan was approved by a vote of 64 to 35, the fourth closest margin out of 19 roll calls on judicial nominees this year. All 35 "No" votes were Republicans, including both Texas senators and reported presidential aspirant Marco Rubio of Florida. But 11 Republicans voted for Kaplan, including both senators from Tennessee and reported presidential aspirants Rob Portman of Ohio.
In opening debate over Hughes' nomination, Senate Judiciary Committee Chairman Patrick Leahy noted that Hughes would become the first openly gay judge in history to serve on a federal appellate court and asked that his other remarks be inserted into the Congressional Record. Then, Leahy used his time to speak against efforts to cut food stamps to people with low incomes. No other senator spoke before the roll call.
A native of Ohio, Hughes, 47, graduated from Harvard College and then Duke Law School and, since 1994, has served in the Commercial Litigation Branch of the Department of Justice Civil Division. His questionnaire to the Senate Judiciary Committee indicated he was a member for one year (2010-11) in the National LGBT Bar Association and the GLBT Attorneys of Washington. He also volunteered legal advice on a variety of issues at the LGBT-run Whitman-Walker Clinic in Washington, D.C., for people with HIV-related legal issues.
Kaplan, a 58-year-old native of Brooklyn, N.Y., graduated from the State University of New York-Binghamton and Georgetown University Law Center. She served as general counsel to the U.S. Office of Personnel Management since 2009, and as its acting director since April, when openly gay OPM Director John Berry resigned. Kaplan also served as head of the U.S. Office of Special Counsel under President Clinton. She also noted her membership (from 1995 to 1997) in the Gay and Lesbian Attorneys of Washington, D.C. group, and brief memberships in Gay and Lesbian Parents International, the Human Rights Campaign Fund, the National Gay and Lesbian Task Force, and Parents and Friends of Lesbians and Gays.
Kaplan's questionnaire to the Senate Judiciary Committee noted that she participated in numerous LGBT-related panel discussions, including last year's White House LGBT Youth Conference and its LGBT Conference on Families. She also participated in a panel at an Out and Equal Conference in Baltimore last October and at a forum of the American Bar Association concerning benefits to federal employees with same-sex domestic partners.
The Senate Judiciary Committee advanced the nominations of both Kaplan and Hughes without asking them gay-specific questions —a practice of committee minority leader Charles Grassley (R-Iowa) with many gay nominees.
The confirmations of Hughes and Kaplan bring to eight the number of openly gay candidates confirmed to the federal bench during the Obama administration. President Obama initially nominated Washington, D.C., attorney Ed DuMont to the Federal Circuit appeals court, but Republicans on the Senate Judiciary Committee blocked DuMont's nomination and DuMont withdrew his nomination.
Hughes now becomes a member of one of the nation's 13 federal appeals courts. While 12 of those have specific geographical jurisdiction, the U.S. Court of Appeals for the Federal Circuit, which has 12 judges, deals specifically with disputes involving international trade, government contracts, and federal personnel, among other things.
Kaplan becomes one of 16 judges on the U.S. Court of Federal Claims, each with a 15-year term of office. The court is one of several courts of special jurisdiction. The Federal Claims court addresses cases involving lawsuits against the federal government involving such matters as tax refunds, federal contracts, and federal takings of private property.
Kaplan currently serves as general counsel and acting director of the U.S. Office of Personnel Management.
The Senate approved three other openly gay judicial nominees this year were confirmed on voice votes, as well as openly gay nominee Stuart Delery to serve as assistant attorney general in the Department of Justice's civil division.
Only two nominations are still pending among President Obama's openly gay nominees for the federal bench. One is William Thomas for a seat to the U.S. District Court in Miami. The other is Judith Levy to a seat on the federal district court for the Eastern District of Michigan (Detroit).
Thomas, 46 and a native of Pennsylvania now working in Miami, was originally nominated in November 2012. A majority of an American Bar Association committee that vets nominees voted him to be well qualified. An openly gay African American, Thomas was recommended by the Gay and Lesbian Victory Fund's Presidential Appointments Project.
President Obama nominated Levy, 55, in July of this year. She served as an intern at Lambda Legal Defense during the summer of 1994, is a member of the board of directors for DOJ Pride and the Human Rights Campaign. She received a scholarship from Parents and Friends of LGB Students and has spoken on a number of panels concerning the Americans with Disabilities Act and its application to people with HIV. She also spoke at a White House Conference on Homelessness in LGBT Communities and at a University of Michigan Women Lawyers Association forum, "Multiple Layers of Identity: Being a Minority, Gay or Transgender Woman in the Workplace." A native of Indiana, she has a B.S. and a law degree from the University of Michigan. She currently works in the U.S. Attorney's Office in Detroit as chief of its Civil Rights Unit.
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