Senator Sam Brownback, the anti-gay Republican from Kansas who is a possible presidential candidate in 2008, wised up this week and withdrew his hold on a federal court nominee. Brownback's hold on Michigan state Judge Janet Neff, who has been nominated to a federal district court seat, effectively blocked her nomination – a move considered unprecedented – simply because she was a guest at a same-sex commitment ceremony four years ago. Furthermore, Brownback had requested that Neff agree to recuse herself from all cases involving same-sex unions (he said this week that he would no longer push for that idea either).
The switch shows just how little respect or understanding Brownback has for the judicial branch of our government in the first place. In fact, several legal scholars noted that his hold on Neff's nomination and his so-called solution that required her to recuse herself from deciding an entire category of cases raised serious constitutional questions regarding the separation of powers principle: can a senator demand that a judge commit to behavior on the bench in exchange for an appointment vote?
Neff, to her credit, responded to Brownback's ludicrous suggestions by stating that she would decide cases according to the law and the Constitution, reported the New York Times, which pointed out that is exactly the same answer that several conservative Republican judicial nominees made when asked whether their statements opposing abortion rights and same-sex marriage would affect their performance on the bench.
After he said he was releasing his hold on the nomination, Brownback said he wants the judiciary committee to requestion Neff about her attendance at the ceremony. The committee has already approved her nomination.
This is just another example of the double standard used by conservatives, and akin to their partisan cries of "activist judges" when a court hands down a decision with which they disagree. And it shows how ill prepared Brownback is to serve as this country's leader. But make no mistake: we'll be hearing more of his hogwash about same-sex marriage and other LGBT issues as he attempts to break out of a crowded pack of GOP presidential hopefuls by wooing the anti-gay constituency. The question this time around, however, is whether voters have had enough of the gay bashing now that more pressing issues face the country.
On the flip side, here in California, Governor Arnold Schwarzenegger has a chance to make history if he appoints openly gay Latino attorney Michael Nava to an opening on the bench of the First District Court of Appeal, which is based in San Francisco. As we report this week, Nava, currently a research attorney for state Supreme Court Associate Justice Carlos Moreno, is being vetted by the state panel that assists the governor in the judicial appointment process. While there are several gay and lesbian judges at the trial court level, there is no out gay judge at the appellate level or on the state Supreme Court.
Nava said that he applied for the position because there isn't an openly gay or lesbian jurist on the state appeal court bench. He has wide support in the LGBT legal community, with several attorneys pointing out that the state's judges should reflect the population they serve.
Should Nava successfully complete the selection process – and we see no reason why he shouldn't – Schwarzenegger should appoint him to the bench. And while Nava is certain that he will be asked about his sexual orientation, he is right when he says that it shouldn't matter. Married judges, for example, don't recuse themselves from divorce cases. Judges don't recuse themselves simply because they are a member of a class (ethnic, religious, etc.) similar to those who may be appearing before them. There must be a compelling conflict for a judge to recuse himself/herself, and one's sexual orientation does not fall into that category.