Political Notebook: LGBTQ federal judges still lacking, says report

  • by Matthew S. Bajko, Assistant Editor
  • Wednesday November 15, 2023
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Federal Judges Daniel Calabretta, left, and P. Casey Pitts, who both serve in California, are among the nine lesbian and gay people nominated by President Joe Biden who were confirmed by the U.S. Senate. Photos: Calabretta, courtesy U.S. District Court; Pitts, courtesy Altshuler Berzon LLP<br>
Federal Judges Daniel Calabretta, left, and P. Casey Pitts, who both serve in California, are among the nine lesbian and gay people nominated by President Joe Biden who were confirmed by the U.S. Senate. Photos: Calabretta, courtesy U.S. District Court; Pitts, courtesy Altshuler Berzon LLP

This month President Joe Biden celebrated the confirmation of his 150th federal judicial appointee since he took office three years ago. In marking the milestone, the White House noted that two-thirds of the new judges are women and nearly two-thirds are people of color.

"All of these men and women are highly qualified, faithful to the rule of law, and dedicated to the Constitution," stated Biden. "They come from professional backgrounds that have for far too long been underrepresented on the bench — from labor and immigration attorneys to public defenders and civil rights lawyers."

Yet a recent report is once again highlighting the ongoing underrepresentation of the LGBTQ community among the federal judiciary. Since Biden took office in 2021, the U.S. Senate has confirmed only nine out judicial nominees, noted The Leadership Conference on Civil and Human Rights in a review of LGBTQ federal judges it released this fall.

"It is one of those issues that needs more attention," Lena Zwarensteyn, senior director of the conference's fair courts program, told the Bay Area Reporter in a recent phone interview.

In its five-page report with data as of October 24, the legal advocacy organization noted that just three of the country's 13 federal circuit courts have ever had an out LGBTQ person serving on it as a lifetime judge. The statistic "is appalling," Zwarensteyn said.

The document also highlighted that an openly LGBTQ person has never served as a lifetime judge on 78 of the 94 federal district courts, which amounts to more than 80%. The country has yet to see an out LGBTQ person nominated for the U.S. Supreme Court.

To date, there has also never been an openly transgender or nonbinary person nominated or confirmed to serve as a lifetime federal judge, according to the report. Of the out judges appointed to lifetime tenures as district court judges, they have served in just 10 states — California, Colorado, Florida, Illinois, Michigan, New York, Oregon, Pennsylvania, Texas, and Virginia — in addition to D.C. and Puerto Rico.

"It is critically important to highlight the role judges have in determining our rights and who those judges are," said Zwarensteyn, a straight ally who worked with several of her LGBTQ colleagues on compiling the judicial report.

The conference released it last month to coincide with the annual LGBTQ History Month observance. It also wanted to bring more attention to who is serving as federal judges at a time when numerous lawsuits are being filed to block a host of anti-LGBTQ laws adopted by state lawmakers.

"We are seeing so many state legislatures and federal elected officials unfairly attack the LGBTQ community," noted Zwarensteyn. "It is really important to contextualize who is really deciding some of these critical issues that are really coming through all of our state legislatures, state courts, federal courts, and Congress and so on."

This isn't the first time focus has been brought to bear on the slow pace of LGBTQ judicial nominations by the Biden administration. In February last year the LGBTQ law group Lambda Legal Defense and Education Fund issued a report decrying that in his first year in office Biden "fell short on LGBTQ+ representation" with his appointments for the federal judiciary.

It had reported there being only 14 active federal judges who openly identify as gay or lesbian, which was a mere 1.6% of the 870 Article III judgeships in the federal judiciary. It also noted only 20 openly gay or lesbian people, at the time of the report's issuance, had ever been nominated to the federal judiciary since the ratification of the Constitution.

As of October there are now 21 out judges, according to the conference's report. It noted that 7% of adults in the U.S. are estimated to be LGBTQ but only 2.4% of federal judgeships are held by openly queer people.

Biden has made progress compared to his predecessors, noted the report. President Bill Clinton appointed one out judge, and President Donald Trump named two, while President Barack Obama named 11 out judges during his two terms.

"President Biden is poised to surpass that record," noted the conference in its report.

On Wednesday, Biden announced his 10th LGBTQ judicial nominee by naming lesbian lawyer Nicole Berner to be the first out judge on the 4th Circuit U.S. Court of Appeals. Currently general counsel to the Service Employees International Union, Berner has strong Bay Area ties, having attended UC Berkeley as an undergraduate, masters, and law school student. She also clerked in the late 1990s for judges on the U.S. District Court for the Northern District of California and the 9th U.S. Circuit Court of Appeals. In a statement Maya Wiley, president and CEO of The Leadership Conference, called Berner "a brilliant lawyer whose critical professional and lived experience is sorely needed and will be a tremendous benefit to the Fourth Circuit."

To date, Biden has nominated 203 people for the federal bench. Among his judicial picks have been two gay men who were the first out nominees to their federal courts in California. In February, former Sacramento County Superior Court judge Daniel Calabretta was confirmed to a seat on the U.S. District Court for the Eastern District of California.

In June, the U.S. Senate confirmed P. Casey Pitts, an attorney from San Francisco, to the United States District Court for the Northern District of California. Two gay men have previously served on the court, Vaughn Walker and Martin Jenkins, but came out publicly after leaving the federal bench. Walker is now retired, while Jenkins sits on the California Supreme Court.

"I think a lot of progress has been made during this administration," said Zwarensteyn. "Nine openly LGBTQ lifetime judges have been confirmed and that is in less than three years compared to Obama's eight years when he only had 11. Our hope is that President Biden can certainly surpass where the Obama administration was."

A hurdle

The limited number of LGBTQ judges serves as its own kind of hurdle, noted Zwarensteyn, because LGBTQ nominees may question if they will feel welcome on the court to which they are nominated. It may also lead them to wonder if it is worth putting themselves and their families through the public scrutiny they will face by agreeing to be a nominee.

"The confirmation process nominees have to go through can be, sometimes, quite brutal," she said. "The treatment of people of color and of LGBTQ people and so on, quite frankly, is unacceptable."

As for seeing a trans or nonbinary judicial nominee, Zwarensteyn told the B.A.R. she believes Biden should nominate such an individual.

"I would love to see a trans or nonbinary judge not only be nominated but get confirmed," she said, adding that "there are so many qualified, fantastic lawyers out there who are trans or nonbinary" who could be considered for a nomination. "Anyone put forward would probably regret personally what they would have to go through."

At the same time, added Zwarensteyn, various groups would work to find "ways we can help champion that nominee and really create a community of support to make that happen."

Biden has benefitted from Democrats controlling the Senate during his first term, meaning it has been easier for him and his party's members on the Senate Judiciary Committee to push through his judicial nominees. The prolonged absence of the late California senator Dianne Feinstein due to illness had delayed the committee's work earlier this year.

After Feinstein died in September at the age of 90, lesbian Black Senator Laphonza Butler (D) was sworn into the vacant Senate seat. She is now a member of the judiciary committee, making her the first LGBTQ person to serve on it and able to give voice to personal experiences when LGBTQ equality issues are discussed.

"I, for one, am incredibly excited to have her personal expertise on the judiciary committee," said Zwarensteyn, adding that in particular on LGBTQ matters, Butler can "be an authority on those issues having lived it, worked it, and so much more."

Even though Biden now faces a rough reelection battle in 2024, he should not shy away from nominating LGBTQ judges, said Zwarensteyn. Who is being named to the federal bench should be top of mind for voters not just about Biden but also for who they are electing to be their state's U.S. senator.

"With the White House race and senators up for reelection, it is something important for people to reflect upon. Every senator votes on every single lifetime judge," Zwarensteyn said.

Although Biden's November 7 statement marking his 150th judicial confirmation milestone did not explicitly mention LGBTQ judicial nominees, it did acknowledge more needs to be done to diversify the federal bench.

"We have more work to do, and I am committed to filling every judicial vacancy with appointees whose credentials, ability, and impartiality are beyond question," pledged Biden.

Saltzman endorses a BART successor

Monday saw the official launch of Barnali Ghosh's campaign to succeed lesbian BART board member Rebecca Saltzman. As last week's Political Notebook reported, Saltzman has ruled out seeking a fourth term in 2024.

She is backing Ghosh's bid to succeed her in the District 3 seat on the oversight body for the regional transit system. A mayoral appointee on Berkeley's transportation commission, Ghosh and her husband lead walking tours of their East Bay city that include LGBTQ stories and are planning to launch one soon of San Francisco's Mission district, as the B.A.R. also reported last week.

"I think what we need at this time at BART, which has a lot of challenges ahead, is we need someone who can really represent the riders and take on the challenges BART has," Saltzman told the B.A.R. as for why she is endorsing Ghosh.

The District 3 seat includes Berkeley, Albany, El Cerrito, Richmond, San Pablo, Pinole, Hercules, Kensington, El Sobrante, North Richmond, Rodeo, Crockett, and Port Costa. Ghosh is currently vice chair of Berkeley's Planning Commission and serves on the board of TransForm, which advocates for smart transportation and housing policies.

"For my first 15 years in the Bay Area, I didn't have a driver's license. BART connected me to my community, my job, and I even rode it to my wedding. I can't imagine my life or the Bay Area without BART," stated Ghosh, a landscape architect who emigrated from Bangalore, India. "I'm running for BART board because the system is facing a post-pandemic fiscal emergency. We need a seasoned transportation policy activist representing District 3 capable of navigating the complex challenges ahead."

Web Extra: For more queer political news, be sure to check http://www.ebar.com Monday mornings for Political Notes, the notebook's online companion. This week's column previewed the Asia-Pacific Economic Cooperation, or APEC, conference San Francisco is hosting this week.

Keep abreast of the latest LGBTQ political news by following the Political Notebook on Threads @ https://www.threads.net/@matthewbajko

Got a tip on LGBTQ politics? Call Matthew S. Bajko at (415) 829-8836 or e-mail [email protected]

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