Openly gay man nominated to fed appeals court
Edward DuMont
In an historic move, President Obama this month nominated an openly gay person, Edward DuMont, to a federal appeals court judgeship—the first such openly gay nomination at that level. He also becomes the first openly gay man to be nominated to a federal judgeship.
DuMont was nominated April 14 to the U.S. Court of Appeals for the Federal District, the only federal appeals court with national jurisdiction. Located in Washington, D.C., the court has 16 judges and hears cases involving government contracts, patents, trademarks, customs issues, and veterans’ benefits.
In his responses to the Senate Judiciary Committee questionnaire, DuMont had something to please senators on both sides of the aisle, and he was very forthcoming about his involvement in and support for gay legal groups. He indicated that he is a member of the Gay, Lesbian, Bisexual and Transgender Attorneys of Washington (GAYLAW) and a former member of the National LGBT Bar Association. While at the Department of Justice, he was a member of DOJ Pride, the GLBT employee organization and served as its vice president between 1994 and 1996. He is also a member of Yale GALA.
According to biographical sheet provided by his law firm, DuMont’s partner of the past 13 years is Newton Kendig, a doctor and commissioned officer in the U.S. Public Health Service in charge of health services for the Federal Bureau of Prisons.
His Senate Judiciary Committee questionnaire responses also make note that he has given contributions to a large number of groups concerned with civil rights, the environment, and health issues. Among the many gay-related organizations, he has contributed to the lesbian funding group Astraea, the Empire State Pride Agenda, Equality California, Equality Colorado, Federal GLOBE, Food and Friends, Freedom to Marry, Gay & Lesbian Victory Fund, Gay & Lesbian Alliance Against Defamation, Gay Men’s Health Crisis, the Human Rights Campaign, Lambda Legal Defense and Education Fund, the National Gay & Lesbian Task Force, Servicemembers Legal Defense Network, and Vermonters for Civil Unions. He has also contributed to a variety of women’s and minority civil rights groups, the Democratic Party, and a number of environmental, animal rights, and health causes.
Despite his wide and deep connections to so many progressive groups, he will probably find support among at least some Republicans for having signed a letter in 2002 to support the nomination of Miguel Estrada, President Bush’s controversial nominee to the U.S. Court of Appeals for the D.C. Circuit. DuMont also clerked for Reagan appointee Richard Posner, a judge on the 7th Circuit. He worked four years for a major Wall Street law firm, Sullivan & Cromwell, as an attorney to large corporations on a range of tax matters. His name was on a brief in support of a religious group in its successful petition to the U.S. Supreme Court to exercise a First Amendment right to use public school facilities to host a family values series. A unanimous Supreme Court ruled for the religious group, in Lamb’s Chapel v. Center Moriches School District, in 1993.
A native of Oakland, California, DuMont’s Judiciary Committee questionnaire indicates he was born in 1961 and graduated from Yale University and Stanford Law School. He served as Assistant Solicitor General and as Associate Deputy Attorney General during the last term of President Clinton. He currently works at the Washington, D.C. law firm of Wilmer Cutler Pickering Hale and Dorr.
Through an associate, DuMont declined a request for an interview, as typically all nominees do.
DuMont earned the highest rating from the American Bar Association—unanimously well qualified. He has argued 18 cases before the U.S. Supreme Court, and he has had experience in cases involving computer crime and privacy, international treaties, and foreign corporations.
No hearing date has yet been set for his confirmation hearing by the Senate Judiciary Committee.
Ty Cobb, the Human Rights Campaign’s legislative counsel focusing on judicial nominations, said DuMont is “unbelievably well-qualified.”
Two other openly gay people currently serve positions in the federal courts, both appointed by President Clinton. At the U.S. District Court level, Deborah Batts became the first openly gay person appointed to a federal judgeship, appointed in 1994 to the Southern District of New York, which includes 41 judges. Emily Hewitt became the second when she was appointed to the U.S. Court of Federal Claims in 1998. President Obama elevated her to Chief Judge of that court in 2009. The court, based in Washington, D.C., hears cases involving such matters as government contract claims, intellectual property, Indian tribes, and complicated tax refund litigation.
A hearty congratulations to Edward DuMont. His background seems to assure he’s qualified to adjudicate cases involving government contract claims, intellectual property, Indian tribes, and complicated tax refund litigation. Of course this very limited and narrowly circumscribed legal specialization also assures that (aside from cutting checks to failed activist groups like Equality California) he will be doing nothing to preserve LGBT rights from the bench. In this case his being openly gay is utterly irrelevant. Why should anyone care? Obama needs to be making LGBT appointments where they matter, where they can make a different to the community, instead of making token appointments that effectively muzzle dissent. When it comes to being a ‘sword and shield’ to protect our rights, Edward DuMont is now, for all practical purposes, taken out of circulation.
However he is young and this may be a good proving ground for better things to come. In that light his professional representation in support of a religious group that successfully petitioned the U.S. Supreme Court for the right to use public school facilities to host a family values series is rather troubling. In Lamb’s Chapel v. Center Moriches School District, the Lamb’s Chapel evangelical church sought to show a series of family lectures by James Dobson on school property after school hours. The U.S. Supreme Court unanimously overturned the lower court’s decision to deny the church’s access to state (tax-funded) property claiming such use was permissible use because the films were not “church related.’ How any lecture on family values by the infamous James Dobson could not be church related escapes me, but the law is never that simple and the traditional “Lemon Test” itself provides a First Amendment loophole big enough to drive a truck through. “Mr. Jefferson! Build up this wall!” Moreover, all legal professionals understand that an attorney’s first ethical duty is ‘zealous advocacy’ for his client and not his personal agenda. During our careers most attorneys employed by law firms are often called upon to defend issues they find repugnant.
Two things seem sure: by appointing Edward DuMont to narrowly circumscribed legal specialization, Obama stuck a token feather in his own cap and, more importantly, he cleverly decommissioned DuMont from any possibility of an advocacy role protecting the rights of his Community. He is effectively a ‘token’ gay safely appointed to a job where most certainly his being gay can not be of any relevance to us. Thanks anyway.