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Congratulations to Michael Fitzgerald
Posted by: Claude J. Summers on 03/15/12
Last updated on: 03/17/12
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Congratulations to Michael Fitzgerald on his confirmation by the U.S. Senate as a judge on the U.S. District Court for the Central District of California. The approval, on March 15, 2012, by a 91-6 vote, makes Fitzgerald the fourth openly gay judge on the permanent federal bench.

As Chris Geidner reports in MetroWeekly, Fitzgerald joins Clinton appointee Deborah Batts and two other Obama appointees Paul Oetken and Allison Nathan as openly gay "Article 3" judges--referring to judges appointed with consent of the Senate for lifetime tenure under Article 3 of the Constitution.

Fitzgerald, who received a B.A. from Harvard in 1981 and a law degree from the University of California, Berkeley in 1985, was rated "unanimously well qualified" by the American Bar Association. A former U.S. Assistant Attorney, he is currently a member of the Los Angeles law firm Corbin, Fitzgerald, and Athey.

Senator Barbara Boxer of California, who had strongly supported the nominee throughout the long process of consideration, issued the following statement following Fitzgerald's confirmation: "The federal bench in California will gain an extremely talented new judge as a result of today's historic vote to confirm Michael Fitzgerald. His sharp intellect and broad legal experience will make him a tremendous asset to the people of the Central District."

Perhaps the case associated with Fitzgerald that attracted the most attention at his confirmation hearing was Buttino v. Federal Bureau of Investigation, a 1993 case in which Fitzgerald represented a gay FBI agent who was outed to his superiors and who subsequently lost his security clearance and then his job.

Fitzgerald and his law firm at the time represented Buttino at trial on a pro bono basis. "I obtained class certification and then represented Mr. Buttino and the class [of all gay and lesbian FBI employees] at trial," Fitzgerald testified.

After several days of trial, the FBI agreed to settle the case out of court. In doing so, the FBI "renounced its prior policy of viewing homosexuality as a 'negative factor' in regard to security clearance," agreed to hire an openly gay agent, and restored Buttino's pension, Fitzgerald reported.

The Buttino case, which occurred four years before President Clinton issued an executive order removing homosexuality as a cause for the denial of security clearances, is a very important case. It helped establish the principle that the inability to gain security clearances because of homosexuality could not be used as a pretext to fire gay and lesbian employees, and it proved pivotal in the long quest to remove the McCarthy-era regulations that branded homosexuals as unfit and untrustworthy and therefore ineligible to serve in sensitive government positions.

Fitzgerald participated in the 2008 campaign against Proposition 8 as a door-knocker and is a member of the Harvard-Radcliffe Gay & Lesbian Caucus. From 2007 to 2008, he served on the leadership task force for the L.A. Gay & Lesbian Center. In the 1990s, he was a member of the Stonewall Democratic Club.

Fitzgerald's participation in the Buttino case caused Republican Senator Mike Lee of Utah to characterize him as an activist.

In the confirmation vote on March 15, Lee was one of six Republicans who voted against Fitzgerald's confirmation. The others were Roy Blunt of Missouri, Jim DeMint of South Carolina, James Inhofe of Oklahoma, Rand Paul of Kentucky, and David Vitter of Louisiana.

Fitzgerald's nomination was also opposed by a such designated hate groups as the Traditional Values Coalition and the Family Research Council. But their opposition seems to have had little effect except on the extreme right-wing Senators who voted against confirmation.

Following the vote on March 15, Fitzgerald issued a statement expressing gratitude for his nomination and confirmation: "I am honored by the Senate's confirmation vote today," he said. "I am grateful to the President for my nomination. I am grateful to Senator Boxer for her recommendation of me to the President. I am grateful to Senator Feinstein for her support in the Senate Judiciary Committee. I look forward to serving the people of the Central District of California."

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