commentary
Beyond the Briefs
Ted Weathers for first openly gay federal judge
Published Thursday, 02-Apr-2009 in issue 1110
U.S. Sen. Barbara Boxer has appointed a committee, which includes San Diego District Attorney Bonnie Dumanis, to recommend appointments for the federal bench, specifically for the Southern District of California.
The committee will influence President Obama’s nominations for federal judges and for U.S. District Attorney for the southern district, and the GLBT community has an interest in two specific appointments: San Diego Superior Court Judge Ted Weathers for federal judge and University of San Diego Professor Robert Fellmeth for U.S. Attorney General.
Who are these two candidates and why should we recommend that the committee encourage President Obama to nominate them?
Five years ago, then Gov. Gray Davis appointed Weathers, who had served previously as a Superior Court commissioner, as the first openly gay Superior Court judge in San Diego. In the 10 years that Weathers accumulated in these positions, he earned accolades from other judges and attorneys.
Based on this record, it’s now time that he become the first openly gay judge in the entire federal judiciary.
After all, President Obama has indicated that he is interested in adding diversity to the federal bench. No one fills that role better than Weathers, who is married to his long-term partner and who, 13 years ago, legally adopted a child, who happens to be black.
Judge Weathers is a role model for us all – one who would serve as an exemplar of diversity for the rest of his lifetime, as federal judges have tenure. (They’re granted this privilege to insulate them from voter reprisals for making unpopular rulings, although they can face impeachment by Congress for misbehavior.) It’s Weathers’ visibility as a symbol of diversity that, along with his legal experience, makes him an obvious choice for the GLBT community’s support, not his sexual orientation per se: Having a gay judge on the federal bench wouldn’t affect GLBT issues much. This is because even though federal judges routinely review legislation against constitutional challenges, federal cases are assigned on a random basis. Therefore, it’s not especially likely that Weathers would receive GLBT cases, any more than he would any other type of case.
But having a gay federal judge would show GLBT youth what they can do and show the country that gay and lesbian judges can decide matters involving equal rights for everyone, even if they themselves don’t have the same rights as heterosexual judges.
As for our new U.S. Attorney General, in this position, we need someone we can go to for help on GLBT issues. The GLBT community shouldn’t have to litigate with the Obama administration over claims for equal rights in federal court.
For example, rather than march in the streets of Hillcrest, it would be nice to meet with a U.S. Attorney who would say, “We will enter into an accord stating that the federal Defense of Marriage Act and corollary state DOMAs (like Proposition 8) violate the Federal Constitution.”
Sen. Boxer’s choice for U.S. Attorney should be Professor Robert Fellmeth, one of the country’s most respected ethicists. Fellmeth has championed the rights of GLBT kids as co-director of the Child Advocacy Project at the University of San Diego, and we could count on him to make ethics in government a priority.
Fellmeth would be fair, even-handed and non-partisan – much needed qualities in federal and state governments, as the last eight years of the Bush administration and corrupt officials in San Diego have made painfully clear. While there are many who would like to see President Obama nominate an attorney general to focus on prosecuting aliens and drug smugglers, we can’t afford to make this our only priority.
Given the widespread corruption in business and politics, we have no other choice than to give federal prosecutors the power to jail officials who engage in unethical conduct, such as taking bribes (masquerading as campaign money) to vote in certain ways. Like former U.S. Attorney General Carol Lam, who made “public integrity” and “white collar crime” her priorities by requiring assistant U.S. attorneys to bring “honest service charges” (which prevent public officials from using their influence for their own interests), Fellmeth would utilize the position to uphold transparency in government.
Robert DeKoven is a professor at California Western School of Law.
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