The U.S. Senate this month confirmed a gay man to a federal district court seat in San Francisco — marking the first time an openly gay nominee has been appointed to the district court for what is often considered the world's gayest city. It also marked the second confirmation this year of a gay federal judge in Northern California.
The Senate confirmed P. Casey Pitts by a vote of 53-46 on June 14, with only two Republicans — Susan Collins of Maine and Lindsey Graham of South Carolina — voting yes. The no votes included the Republican senators from Texas (John Cornyn and Ted Cruz) and Florida (Rick Scott and Marco Rubio). The only Republican presidential candidate in the Senate, Tim Scott of South Carolina, did not vote.
Pitts is a labor-side attorney and partner in the public interest law firm of Altshuler Berzon in San Francisco. He will now join the district court for the Northern District of California, covering the counties of Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San Mateo, Santa Clara, Santa Cruz, and Sonoma.
Pitts' confirmation makes him the seventh openly LGBTQ federal district court appointee nominated by President Joe Biden. Former President Barack Obama had named only three LGBTQ people to federal district court seats by his second year; but he eventually named 10 in all.
In February, the Senate confirmed three other LGBTQ judges nominated by Biden to a federal district bench: Daniel Calabretta, a gay man, to the Eastern District of California (based in Sacramento); Ana C. Reyes, a Latina lesbian, to the District of D.C.; and Gina R. Mendez-Miro, a Puerto Rican lesbian, to the District of Puerto Rico. Biden has also appointed two lesbians to the 2nd U.S. Circuit Court of Appeals (Beth Robinson and Alison Nathan). The Senate approved Calabretta on a vote of 51 to 45 (four not voting); it approved Reyes 51-47 and Mendez-Miro 54-45.
And in March, the Senate confirmed Jamar K. Walker, a gay Black man, on a 52-41 vote (seven not voting) to a district court seat for the Eastern District of Virginia, in Norfolk.
Biden nominated most of these district court judges last fall, and some court watchers posting comments on various websites predicted the nominations would fail. Many polls in fall of 2022 were suggesting Republicans would regain control of the Senate and reject Biden's nominees. But Democrats held onto the Senate last November, and the nominations were resubmitted with the start of the new congressional session.
Six Republican senators posed 187 questions to Pitts through written queries, asking about various judicial issues and cases. Cruz asked Pitts to explain his understanding of several LGBTQ-related opinions at the U.S. Supreme Court, including Masterpiece Cakeshop v. Colorado and Fulton v. Philadelphia. The court ruled for the anti-gay baker in the Masterpiece case (2018). In the 2021 Fulton case, the court ruled that Philadelphia violated the First Amendment for requiring contractors to obey a non-discrimination ordinance.
Each time, Pitts simply relayed the basic points of the majority opinion. Cruz also pressed him repeatedly on decisions involving religious views, such as on the Supreme Court's approval of post-game prayer on a public high school football field. Pitts again simply restated each opinion's basic points.
Senator Mike Lee (R-Utah) made note of a paper Pitts had co-authored. Entitled "Applying Bostock to Bargaining, Benefits, and Litigation," the paper discussed the landmark Supreme Court decision written by Justice Neil Gorsuch that held "an employer who fires an individual merely for being gay or transgender defies" Title VII of the federal Civil Rights Act. Lee quoted a line from the article that stated that the opinion was based on Gorsuch's "belief that the meaning of 'sex' had to be determined by reference to its 'original public meaning ... at the time of [Title VII's] enactment' in 1964."
"Do you agree with Justice Gorsuch's 'belief' that words should be defined according to original public meaning? Or should meaning change as social norms and linguistic conventions evolve?" asked Lee.
Pitts replied that the Supreme Court's 2020 decision in Bostock v. Clayton County held that courts "normally interpret a statute in accord with the ordinary public meaning of its terms at the time of its enactment."
"If confirmed, I will faithfully apply binding Supreme Court and Ninth Circuit precedents regarding statutory interpretation, including Bostock," Pitts stated.
Pitts graduated from Yale University and Yale University Law School. He clerked for Ninth Circuit U.S. Court of Appeals Judge Stephen Reinhardt, and then joined the Altshuler Berzon law firm. Pitts participated in activities of Bay Area Lawyers for Individual Freedom, the LGBTQ bar association based in San Francisco, and helped the San Francisco-based National Center for Lesbian Rights represent a trans man in Louisiana whose employer ordered he present as female at work. Pitts was also lead author of a brief in the Sixth Circuit, opposing a law banning same-sex marriage. And he has been a member of San Francisco's LGBTQ running group, the FrontRunners, since 2013. The American Bar Association rated Pitts "qualified" for the job.
Biden has now appointed a total of nine LGBTQ judges to the federal bench (two appeals court and seven district court). Obama appointed 11 (one appeals court and 10 district court); former President Donald Trump appointed two (one appeals, one district).
While Pitts is the first openly gay nominee to be confirmed to the federal district court in San Francisco, Judge Vaughn Walker came out as gay after retiring from his seat on the San Francisco federal district court. Walker presided over and ruled in the 2010 case challenging the constitutionality of California's Proposition 8, a voter-approved initiative to ban same-sex marriage. He ruled the initiative to be unconstitutional.
That ruling was upheld on appeal, including by the Supreme Court, and same-sex marriage became legal in the Golden State in June 2013.
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