Ed DuMont’s “Controversial” Federal Circuit Nomination Continues to Languish after One Year

In a recent blog post, Bill Vobach noted that Edward C. DuMont’s original nomination as a judge for the Court of Appeals for the Federal Circuit has now been awaiting Senatorial action for more than one year.

This hold-up is a shame. DuMont is eminently well qualified. He has spent years as a top litigator at WilmerHale, Sullivan & Cromwell, and the Solicitor General’s Office within the Department of Justice. He graduated from Yale, Phi Beta Kappa and Summa Cum Laude with the highest standing of any humanities student. At Stanford Law School, DuMont graduated with distinction and was honored with membership to the Order of the Coif. After law school, he clerked for conservative thought leader Richard Posner on the Court of Appeals for the Seventh Circuit. DuMont’s litigation experience has focused primarily on appellate practice and he has argued 18 Supreme Court cases. He has also done trial work and handled at least one patent lawsuit through trial. Even though he has not focused on any particular areas of law, DuMont has worked on a number of intellectual property focused lawsuits, including the Lemelson case, Mattel v. MCA (trademark), Eldred (copyright term extension), Gen-Probe v. Vysis (precursor to MedImmune), Merck v. Teva, Princo v. Philips, AFT v. Cardinal, and Tivo v. Echostar. The ABA has rated DuMont as “unanimously well qualified” and he has also been awarded numerous “leading lawyer” awards throughout his 25-year legal career.

While DuMont has been awaiting Senate confirmation, both Jimmie Reyna and Kathleen O’Malley have been given approval and are now Federal Circuit Judges.

Why the Delay: The hold-up for DuMont’s nomination is the fact that he is openly gay. If approved by the Senate, DuMont would be the only openly gay federal appellate judge and one of only three openly gay federal judges. To-date, no federal judicial appointment for an openly gay man has been approved by the Senate. The delay has been entirely behind the scenes and no Senator has been bold enough to publicly announce the ridiculous position that homosexual men should not be allowed to judge patent appeals.

To be fair, the issue of homosexuality does arise occasionally in the federal employment cases heard by the court. Earlier this year, for instance, in Todd M. Jack v. Department of Commerce, the Federal Circuit was asked to consider whether Jack had been properly suspended for 120 days after he accused his USPTO co-workers of being homosexuals, claimed that his co-workers had “hired Chinese homosexuals to stalk and harass him”; and “lunged” at a superior. The Federal Circuit affirmed the Merit Systems Protection Board’s decision that the suspension was not a violation of Jack’s rights. It is hard to see how this case could have been decided any differently even if the judge himself were gay. The cases involving homosexual issues are much less common than those involving other forms of harassment – such as (hetero)sexual and racial harassment.

The bottom line in DuMont’s situation: The subject matter jurisdiction of the Court of Appeals for the Federal Circuit is severely limited in scope, and DuMont’s sexual orientation is highly unlikely to impact his judicial performance in any way. At this point, Senators Leahy (D-Vt) and Grassley (R-Iowa) and the other members of the Judiciary Committee are the ones responsible for holding back. The Federal Circuit Bar Association, AIPLA, and IPO have all given lip service to supporting DuMont’s nomination, but it is time that they begin to push a bit harder.

89 thoughts on “Ed DuMont’s “Controversial” Federal Circuit Nomination Continues to Languish after One Year

  1. Hey captain MOONBAT. I’m not a member of any partee you would know about.

    That’s nice. I never claimed that you were.

  2. Hey captain MOONBAT. I’m not a member of any partee you would know about. So, carry on with your delusional mission, limp dyck. And enjoy your one vote for Obama. It’s all you got.

  3. These rantings brought to you as introductions to the soon-to-be-spun-off sister page of Patently-O, to be fondly called Politically-O.

  4. WE ALL KNOW THE REAL REASON THIS NOMINEE WAS BLOCKED IS BECAUSE HE IS ASIAN.

    This commenter, like many water-carriers for the Republik.k.kan party, probably thinks he/she is being funny.

    No doubt (< -irony) this commenter is also aware of Republican Senator Grassley's dog whistle to his xenophobic, racist constituents:

    GRASSLEY: Does [Liu] think we’re the communist-run China? That the government runs everything? That it’s a better place when they put online every week a coal-fired plant to pollute the air, put more carbon dioxide into the air then we do in the United States, and where children are dying because food is poisoned, and consumers aren’t protected, and where every miner in the China coal mines is in jeopardy of losing their lives? That’s how out of place this guy is when he talks about “free enterprise,” “private ownership of property,” and “limited government” being something somehow bad, but if you get government more involved, like they do in China, it’s somehow a better place.

    Judge Liu has never indicated that “free enterprise,” “private ownership” or “limitations on government” are “somehow bad,” nor has Judge Liu ever said anything to remotely suggest that he believes that China is a “better place” than the United States (although many Republicans have certain pointed to China’s growth as a positive example of what can happen if you allow corporations to operate without “onerous” restrictions on their ability to oppress their workers or pollute the environment).

    So why bring up China, Senator Grassley? It couldn’t have anything to do with the fact that Liu was born in Taiwan. Or that a substantial fraction of Grassley’s constituents are ignorant, xenophobic white stooges who could easily be led to believe that Judge Liu represents some sort of “fifth column” who came here to “destroy the country” from within on behalf of his “fellow communists”? Nah. Senator Grassley would never stoop so low to foment such prejudices.

    LOL.

  5. “Goodwin Liu, whose first nomination to the post by President Obama had been blocked by Senate Republicans late last year, was re-nominated by the president in January. His backers fell eight votes short yesterday of the necessary 60 votes to overcome a filibuster by conservatives and pro-lifers. The vote was 52-43.”

    “Liu, an associate dean and professor of law at the University of California Boalt Hall School of Law in Berkeley, had been nominated to be a judge on the Ninth U.S. Circuit Court of Appeals in San Francisco, widely considered the most liberal federal appeals bench in the country. Its decisions are also the most overturned by the U.S. Supreme Court.”

    LIES ! WE ALL KNOW THE REAL REASON THIS NOMINEE WAS BLOCKED IS BECAUSE HE IS ASIAN.

  6. link to washingtonmonthly.com

    The Republicans who said they’d never filibuster a judicial nominee? They filibustered a judicial nominee. The Republican “moderates” who said they found these tactics distasteful? They filibustered Liu, too. When the dust cleared, how many GOP senators were willing to give this nominee an up-or-down vote? Just one: Alaska’s Lisa Murkowski.

    The issue isn’t qualifications. Liu is a respected constitutional law scholar who teaches at Berkley, a graduate of Yale law school, and was a Rhodes Scholar. He’s also the son of Taiwanese immigrants, who would have brought some much-needed diversity to the bench.

    …Liu also enjoys the backing of the American Bar Association and many prominent conservatives. Richard Painter, White House ethics lawyer under Bush who worked on Roberts and Alito’s nomination, not only called for Liu to receive a vote but also urged the Senate to confirm him. Even Ken Starr — yes, that Ken Starr — sang Liu’s praises.

    If brought to the floor, Liu would have been confirmed. So Republicans refused to allow a vote.

    Republicans = world’s most shameless hypocrites.

  7. lolz – nice ta see my “distraction” here gets the attention of the President of the United States and prompts him to come forward.

    Yeah, I gots that kind O pull.

    mmmmmm, fluffy.

  8. Dennis – Despite your seemingly open minded conclusion and good intentions, your reasoning is seriously old school in its perspective on homosexuality.

    We appoint straight men all the time to the bench who must rule on sexual harassment claims concerning straight men. No one questions their fitness to adjudicate these claims simply because they are straight or male. So DuMont’s homosexuality alone – without other factors of which I am not aware – should not have anything to do with his fitness for the Fed Circuit, even if that circuit’s jurisdiction were not limited in scope.

    NotfromNevada – You are simply medieval, not old school. Have you spoken to anyone under the age of 70 in the last decade? Homosexuals have both “relationships” and “dalliances,” as have most human beings who have walked the planet since the dawn of time.

  9. THIS PUBLIC SERVICE MESSAGE WAS BROUGHT TO YOU BY
    ALL THE GOOD LIBS IN THE CAREER PLACEMENT OFFICE

  10. 6 Republicans are the worst thing the world has ever seen

    I never said that. I did mention some facts which you seem to annoy you, however.

    Why not, oh I don’t know, ask the lawlmaker that proposed it?

    I’d expect even less satisfying answers than those I got from you, 6.

  11. “Please explain how this law, if enacted (and it never will be because most of the planet recognizes a mouthbreathing Repuke lizard when it sees one) would save the state any money?”

    I don’t know, I’m not making this my personal project. You can take your venemous nonsensical blatherings about how republicans are the worst thing the world has ever seen to someone who cares.

    “Can you tell me what the point of the law is?”

    Why not, oh I don’t know, ask the lawlmaker that proposed it? The intention was probably just to make another lawl so that I would have something to sit and laugh about.

  12. Here Dim, let me help you: *click*

    Sunshine dont get that there be more than one kind O “egregious conduct” – Must be mud in his eye.

  13. You will have to

    Lolz – Um, no i will not “have to”.

    Whats the matta, Nevada, you afraid that you are going to use yet another word wrongly? Are you that addled that you cant figure out the words that you see? There’s another word ya might want to look up: prejudice (hint: look at the not-so-good meanings O that word).

  14. New Light I think the point being made here is that singling out the behavior of one party is rather pointless because there has been plenty of egregious conduct from both parties.

    I admitted that upthread and many times previously. We’re talking about discrimination against gay people. Republicans have made such discrimination a part of their platform, and they continue to demagogue the issue non-stop. The Democratic Party base is not anti-gay. The Republican party base surely is. Where else but in the Republican party would ever find an individual as confused as Ken Mehlman?

    Yes, it’s just another one of those “liberal” facts that you have to deal with it. The Republican party is an ugly political mouthpiece for old white conservative men, who are obsessed with thumping their Bibles, trying to get rich off the backs of poor people or both. Don’t like it? Find another political party.

  15. 6 I sure as f wasn’t getting a whole lot of “new” clothes other than the odd low cost T-shirt and low ost jeans until I could pay for them my own dam self.

    Same here, except in my case it didn’t lead to my becoming an insufferable prxck when it comes to helping out the needy.

    Please explain how this law, if enacted (and it never will be because most of the planet recognizes a mouthbreathing Repuke lizard when it sees one) would save the state any money?

    I doubt if that lawl would stop them from spending their own money on new clothes

    Can you tell me what the point of the law is? Is the new Repuke theory that state subsidies for foster children is why the economy sucks? Funny, I thought it had something to do with the absence of jobs.

  16. That’s the way the Fondling Fathers wrote the Constitution. Advice and consent doesn’t mean “rubber stamp.”

    Move on or move out.

    LOL. I think I’ll stay, BB. I’ve no doubt that bigots like you will be around forever but your kind is slowly dying out. Good riddance.

  17. “Where in hxll do they dig up these axxholes?”

    Maybe the same place they came up with teacher’s salaries? My dad was a teacher and I sure as f wasn’t getting a whole lot of “new” clothes other than the odd low cost T-shirt and low ost jeans until I could pay for them my own dam self.

    The world, as it turns out, is not made of money MM. I also note that as a matter of fact, some of the foster and orphaned/ward of the state kids I knew (including one really hot one) started working at the same place I did around the same age 14. And so far as I’m aware they were allowed to spend their money just as I did. And I doubt if that lawl would stop them from spending their own money on new clothes.

  18. Agreed. In fact this post has no value. If the Judiciary Committee wants to hold up the nomination — hey, that’s politics. Ask Bill Clinton about getting nominations held up.

    That’s the way the Fondling Fathers wrote the Constitution. Advice and consent doesn’t mean “rubber stamp.”

    Move on or move out.

  19. I agree with Algo.

    Tim, I think, you’re comment implicitly accepts that gay people (or “openly gay” people) can be legitimately opposed for a judicial position if their docket involves questions of sexual orientation. That same concern has been raised, disproved, and overcome, with regard to race, religion and sex.

    It proceeds from the historical presumption that straight protestant white men are neutral, and everyone else is suspect when “their” issues are involved. As if questions of religious, racial, sexual, or sexual orientation discrimination don’t usually involve parties from different backgrounds. Somehow, a straight man can judge whether a gay man harassed a straight man (or a gay man harassed a straight man) more objectively than a gay man.

  20. Malcolm,

    I think the point being made here is that singling out the behavior of one party is rather pointless because there has been plenty of egregious conduct from both parties.

    Your efforts, being as singly minded and aimed as they are, amount to nothing more than partisan mudslinging. To borrow from you, when I see such a rant, I simply go *click* and turn off what you say.

    Such comments are of no value. I am sorry, but that is the way I see it.

  21. Roswell analogy doesn’t work. Usually when a nomination is held this long, there’s an explanation for it. Goodwin Liu has taken some controversial positions in his writing, some have argued that he deserves all the political pushback he gets because he participated in the mudslinging against Alito’s nomination, and some Republicans think that Liu is a potential Supreme Court nominee in the future. You may agree or disagree with those reasons, but an explanation has been given.

    I agree with the general point that silence/inaction is useless as evidence in a lot of contexts, but in this case it seems there’s something to it. Why do you think the nomination has sat for so long without a vote?

  22. The point is that just because one Republican senator is biased against gay judicial nominees, assuming without evidence that this is the case, you shouldn’t smear the whole Republican Party.

    I’ve got so many other reasons to smear the whole Republican party it would take all day to list them. Please don’t get me started.

    How about this dxxchebag from Michigan?

    link to michiganmessenger.com

    Under a new budget proposal from State Sen. Bruce Casswell, children in the state’s foster care system would be allowed to purchase clothing only in used clothing stores.

    Casswell, a Republican representing Branch, Hillsdale, Lenawee and St. Joseph counties, made the proposal this week, reports Michigan Public Radio.

    Where in hxll do they dig up these axxholes?

  23. Nice discussion, only comment, I think this could have been left out: “To be fair, the issue of homosexuality does arise occasionally in the federal employment cases heard by the court.” “To be fair” to bigots? (imagine people of heritage X not serving on a jury b/c a plaintiff or defendant is too?) People with sexual orientation biases are, and will increasingly be, viewed as bigots. While homosexual may not be the predominant orientation, it is nevertheless a natural one. How can someone trained in “science” and “law” hold otherwise?

  24. Because even if there is a republican senator blocking the nomination, something we have no evidence of, it is still most likely the action of only one republican senator and is not a general position of the party. I am a very conservative member of the “religious right” and I don’t see the connection between the guy’s sexuality his nomination. And even if it was the view of the part itself, which it isn’t, it is only one issue out of many. How silly would it be to boycott a party based one issue? Did I really have to tell you that?

  25. What are you talking about? Are you talking about not wanting to redefine marriage to include same sex couples? Oh the horror!!!! You know gay people are free to get married all day long every day. The marriage just won’t be recognized by the state. (now make your silly comparisons to racial discrimination of the past).

    And you use the word discrimination like it is bad. Should we treat all people the same? If so, I look forward to paying no income tax (even though I make six figures), getting the earned income tax credit (even though I make six figures and have no dependents), getting child tax credit (even though I have no kids), getting a minority scholarship (even though I am a WASP), etc, etc, etc. The question is whether the discrimination is justified. And in the case of state sanctioned marriage, I think it is.

    Do you also have problems with the anti-religious bigots in the democrat party? Or the class envy card that is always played by wealthy democrats to encourage bias against high earners?

    Sad to see you are throwing your vote away on gay issues without considering all the other more important issues…

  26. I don’t have any evidence of why the nomination is being held up, and I don’t think you do either. The point is that just because one Republican senator is biased against gay judicial nominees, assuming without evidence that this is the case, you shouldn’t smear the whole Republican Party. Guilt by association is a logical fallacy.

  27. I thought

    Error located – same as it always is.

    Try reading next time. I know ya don’t do it for case law (until I make ya), so maybe if I do the same with actual mere blog comments I can achieve teh same action.

    Yeah its gonna be tough breaking you from your handwaivey thingie habits where ya just spout off, so Iza cant guarantee any results.

  28. Andrew Dhuey. It is no more a reasonable inference than to infer it is because of his age, sex, religion, race or any other factor. Maybe his being gay has nothing to do with it. I would say this however, in reply to all those flame throwers on this thread. You are all projecting bigots.

  29. Politicians from both parties also breathe air, pingaling. For some bizarre reason, I thought your comment was relevant to the subject of blocking nominees on the basis of sexual orientation or some other type of bigotry.

    But I guess you were just making some banal “observation” in your usual incoherent way.

  30. O sures, I hope it aint so too – but these be politicians we be talking about.

    Adjust expectations accordingly.

  31. Ned,

    However, in this day and age, I sincerely doubt that it is because of his status.

    Have you read some of the a_$$-backward comments on this thread from some serious homophobic peeps? Yep, right here in this day and age.

    Open your eyes.

  32. Lolz – there be wtvlfdt once again takin one O my lines.

    No intelligence, no creativity, just an obsession with deviant behavior.

    Ya be fittin right in with the posse there Chowder boy.

  33. I’m not aware of any Democratic politicians going out of their way to discriminate against gays

    Nice goal post moving there Sunshine – Did I say that Dems discriminate against gays? Um, no.

    I said “blocking nominations” – try a little history before ya spout off and make yourself llok foo_lish.

    O wait – this be Sunshine – SOP.

  34. withholds full disclosure on roswell without any suggestion of a legitimate reason for the holdup

    non sequitur of the day.

    Sentators will be senators and we have no say do we?

    Absolutely clueless. Here’s a hint – four letters, begins with “vo” and ends with “te”. It’s why the balance O powers in government be spread around incertain ways so that a certain amount of ACCOUNTABILITY be measured out.

    You would learntha tin law school. O Wait, this is 6 – SOP.

  35. You used the word wrong.

    Any other bright comments? Or are you saying that anyone that has sex shouldn’t be nominated as judges? Or are you saying that your homopohbic tendencies rob you of any intellect?

  36. I used dalliance as a euphemism for having sex. I read on this blog that he is “openly” gay–which I assumed meant he was talking about having sex with other men.

  37. the longer the US gov. withholds full disclosure on roswell without any suggestion of a legitimate reason for the holdup, the more plausible UFO enthusaist theories become too

    WOW. Maybe after 1000 more years of this, “UFO enthusiasts” will have a detectable amount of credibility.

  38. Other than his status, has DuMont publicly advocated any highly controversial positions?

    Just for example, gay marriage is a hot button issue. Regardless of his “status,” taking a public position on this issue is going to get him it a lot of hot water preventing some Senators from supporting him regardless of his obvious qualification.

    Since I do not know much about what is going on here, I do not know why his nomination is being held up. However, in this day and age, I sincerely doubt that it is because of his status.

  39. Is an inference that aliens have visited this planet reasonable after this much time with no full disclosure of all documents related to roswell? Especially considering all the other supposed sightings?

    “so the only potential problem would relate to moral character. ”

    I think that is a species of “character” I mentioned above.

    Besides, there is just as much evidence that the guys in the Senate are in fact hoping to put me on the court as there is to support this conspiracy theory.

  40. “but the longer this goes without any suggestion of a legitimate reason for the holdup, the more plausible the bias theory becomes.”

    Yeah, kind of like how the longer the US gov. withholds full disclosure on roswell without any suggestion of a legitimate reason for the holdup, the more plausible UFO enthusaist theories become too :(

    Besides, I don’t think I quite understand, if some senator is blocking him because he is gay, then what are we going to do about it? Sentators will be senators and we have no say do we? What are you going to do, rat on him to his voters? What will you do when they send him back yet again?

  41. Hey ya’ll I have a way for the USA to have Their own Poker site on line. It’s Genius. It will work. And it will truly make the Game , a game of skill. I will give it to the USA if they are serious about using the buy in fees to bring down the Deficit. No fudging allowed. It must be used for the USA Deficit only.
    But you must call it the LILABC POKER.

  42. Iowa House Republicans drew an immediate negative reaction late Thursday when they filed four articles of impeachment, one for each remaining member of the Iowa Supreme Court that participated in an April 2009 decision that struck down a legislative ban on same-sex marriage as a violation of the state’s equal protection clause.

    Probably just a coincidence, right?

  43. I’m just genuinely curious as to why groups of IP lawyers should be the ones leading the charge.

    DC never said that the AIPLA, FCBA and IPO should be “leading the charge.” He should they should “begin to push a bit harder.”

    I agree. And if these organizations don’t begin to push a bit harder, they won’t be seeing another dime from me.

  44. the Dems be no better than the Pubs for blocking nominations

    I’m not aware of any Democratic politicians going out of their way to discriminate against gays. On the other hand, there are some Republicans who can’t help themselves.

    So I’ll vote for the Democratic politician.

    I agree that there are aspects of both parties that are shared which are troubling.

    But if you think that the Republican and Democratic parties are identical when it comes to anti-gay discrimination, you are a m0r0n, pingagling. Or maybe more accurately, you’re DAAFR.

  45. The Federal Circuit Bar Association, AIPLA, and IPO have all given lip service to supporting DuMont’s nomination, but it is time that they begin to push a bit harder.

    I’m curious about this part of the post. DuMont’s obviously qualified, and without any plausible explanation for delaying his nomination, it appears that he’s being mistreated.

    Other than the idea that every group of lawyers that harbors any pretense of public-spiritedness should fight discrimination, why should these organizations in particular “push harder”? It may be that they’re not excited about an undeniably qualified, but generalist, lawyer being appointed to the CAFC. If DuMont was one of their members, or if he fit the profile of what those organizations have pushed for (i.e., another former district judge). Or it may be that organizations dedicated to IP issues see potential sexual orientation discrimination as outside the scope of their mission. There are tons of groups out there like Lambda Legal that could handle this.

    If it’s correct that sexual orientation is the holdup, I think that’s shameful, and whoever is behind it should stand up and be held accountable. I’m just genuinely curious as to why groups of IP lawyers should be the ones leading the charge.

  46. ooohh the 2D man faces another circle.

    Just an observation (based on what else has been posted here) – the Dems be no better than the Pubs for blocking nominations – So who ya gonna vote for if ya boycott the pubs for this reason?

    Um, ya do vote, do ya not?

  47. And the idea that you would boycott one of the two political parties because a republican senator is blocking a nomination based on a bias against homosexuals is equally silly.

    Why?

  48. If I were cy nical, I would say that Cy and I see this so closely that we mights as well be the same person…

  49. scxmball upthread Another example of Obama trying to be stealthy about his far left, pro-gay agenda. Does not sit well with most of America

    LOL. “Most of America” knows that Obama must be “far left” because he’s openly black.

  50. BB I’ve come to the conclusion that if you dig down deep enough you’ll find that all taboo and all morality have a biological basis and an evolutionary purpose.

    I don’t recall BB bringing up his expertise in evolutionary biology before. Maybe it’s just a hobby?

    You should give Fred Phelps a call, BB. He might have some patent work for you.

  51. If you actually read And the Band Played On and can still refer to AIDS as “their disease” then you didn’t read it carefully enough.

    … the gays are going retro.

    “the gays”? Like they are all the same? Now that’s appalling …

  52. Is the issue about leaning or practice? Nevada is losing a Senator because of infidelity. Open discussions of your sexual dalliances with others (men or women) should raise the issue of judgment and character and thus qualification.

  53. You raise an obvious and reasonable point. But you are misrepresenting the points already made. No one is claiming gays have a monopoly on disease.

    The scary response to your universal STD argument is found throughout the CDC website. All of the diseases I mentioned occur at a much higher rate in gay men, and at a rate that is growing faster than in straights, at least in the US.

    Before calling others ignorant, try to educate yourself enough that you’ll know whether they are or not. You should also go back to the late 1980′s CDC work on gay practices. Appalling — few straights have thousands of partners per year. Tiger, maybe, but he’s exceptional. Read The Band Played On, and Before I Sleep while you’re at it. Yes, a lot has changed since the late 1980′s, but unfortunately, according to recent CDC stats, the gays are going retro.

    Your implicit point is also well taken: the bisexual libido-heads are the real problem, at least for non-monogamous heterosexuals. Monogamy turns out to be not such a bad idea after all.

    I’ve come to the conclusion that if you dig down deep enough you’ll find that all taboo and all morality have a biological basis and an evolutionary purpose.

  54. Babbs,

    You have it in high chuckle gear today.

    they keep their diseases to themselves

    Wow – that be one heck O ignorant statement. Like there are no heterosexual STD’s????

    I think ya be infected with at least one other disease – bigotry. Only ya dont know it.

  55. Openly gay people are pushing a sexual agenda — that’s what “openly” means. Heterosexuals who are pushing a sexual agenda are labelled “bigots.”

    Wow, and I thought “openly” simply meant “not hidden.” I’m openly straight – I’ve even been known (horrors) to kiss my openly female wife in public. So that means I’m pushing a sexual agenda and I’m a bigot?

    Most folks don’t really care what gays do in private, as long as it doesn’t involve children and they keep their diseases to themselves.

    I think we now know who the bigot is.

  56. Let’s assume, arguendo, that the nomination is being held up because the guy is “openly gay” and ask why any senators would care.

    The issue is not the “gay” it’s the “openly.” Openly gay people are pushing a sexual agenda — that’s what “openly” means. Heterosexuals who are pushing a sexual agenda are labelled “bigots.” Most straights aren’t bigots and most gays aren’t “openly.”

    Someone mentioned Kagen. Is Kagen gay? I don’t know, but I know she’s not openly gay and that’s why I’m not uncomfortable with her on the Court.

    Most folks don’t really care what gays do in private, as long as it doesn’t involve children and they keep their diseases to themselves. But when, by being “openly,” they start pushing their agenda on the public — particularly from a public, non-elected position of power — there is room for concern. And legitimate dissent.

    I hope the Senate addresses those concerns before casting their vote one way or the other. That’s what they’re getting paid to do.

    I would say, if you want to be a federal judge, keep your sexuality out of it — gay or straight. If you want to be openly gay, Southwest is always looking for good flight attendants.

  57. Good. A lot of us hope they hold him up. Another example of Obama trying to be stealthy about his far left, pro-gay agenda. Does not sit well with most of America

  58. Dennis – You write “Why the Delay: The hold-up for DuMont’s nomination is the fact that he is openly gay.” This is a bold assertion without the benefit of any evidence. The absence of evidence is not persuasive and this is a most unfortunate misuse of your blogging power.

  59. Elena Kagan was voted to the Supreme Court, isn’t she gay?

    A) As far as I know, Justice Kagan is not “openly gay.” I seem to recall that there were a lot of rumors that her friends and colleagues refuted.

    B) Even if Justice Kagan were known to be homosexual, it would be impossible to hold up her appointment for that reason “behind the scenes.” The battle would have to be in public, which means that fewer people would join it.

    Conclusion: the Kagan confirmation isn’t relevant counter-evidence at all.

  60. I agree with Dennis on this one, that the circumstantial evidence suggests that the issue is DuMont’s sexual orientation. Nothing in his Senate disclosure suggests anything particularly overly liberal or political about him.

    There is some hope, generally, that the issue of sexual orientation will go away. The Senate Judiciary Committee did hold a hearing for Paul Oetken, an openly gay nominee to the Southern District of NY. He is the first openly gay judicial candidate to go through a Senate confirmation hearing. Details are available:
    link to legaltimes.typepad.com

    Oetken has not been confirmed yet. That being said, there could be (unfounded) concern over an openly gay appellate judge that is different than a district court judge. I find the suggestion that a gay judge could not be objective offensive, personally. That argument would mean that no women could hear gender-based sex discrimination cases or an African-American could never hear a race discrimination case. To the extent judges bring biases to the bench, they all do regardless of their race, gender, sexual orientation, religion, etc.

    Dennis is correct that AIPLA, FCBA, IPO, and other groups should be pushing for his confirmation, regardless of the reason for the hold. If it is truly his sexual orientation, pressure from these groups could bring the truth to light. If not, then confirm a clearly qualified candidate already!

  61. Given DuMont’s work for the government, there could be a political angle on this instead of a gay angle… but what would it be?

  62. Brutus, if you have evidence that Fred Phelps has the ear of Democrat senators, and is using his influence and persuasion to hold up DuMont’s nomination, I hope you’ll share, because that would be really fascinating and informative.

  63. 6, there are a few reasons this conspiracy theory has traction. Mostly, they relate to the fact that his nomination has been held up for over a year, Reyna has leapfrogged him in the queue (nominated later, confirmed sooner), and no legitimate explanation for the delay has been offered.

    1. No one (to my knowledge at least) has raised any questions about DuMont’s character or his qualifications. If there were questions about these things, it would be easy for a senator to stand up and say so. (“I respect the President’s nomination, but I hope he will give the Senate adequate time to review Mr. DuMont’s qualifications. I am concerned in particular that he has been appointed to serve on the court with the greatest influence and responsibility as to patent law, yet it seems he does not have a lot of experience with patents.”). Same thing if there was a legitimate character issue. (“Mr. DuMont has been seen riding the D.C. Metro with what looks to be cruise missiles and grenade launchers poking out of his briefcase. I hope that he is not wandering around DC with WMDs, and I would hope that the President would allow us time to get to the bottom of this before appointing him to a lifetime position on one of the most powerful courts in the land.”). No one has offered a legitimate explanation, and no legitimate explanation seems to suggest itself from what is known about Mr. DuMont. It’s not as if, for example, he has an abnormally large paper trail the Senate needs to process and no one has made an announcement because no one thinks that’s noteworthy.

    2. As I noted, Reyna leapfrogged him in the queue. There’s no rule that requires the Senate to process nominations on a FIFO basis, but the fact that Reyna was nominated later and confirmed earlier suggests that DuMont’s delay isn’t just the result of the Senate having a lot on its plate and taking its time w/r/t Federal Circuit nominations.

    3. DuMont is openly gay (apparently — I didn’t know this before he was nominated, and I don’t think the announcement mentioned this), and the idea that Senators want his nomination to fail but feel that they can’t say so publicly is very plausible. It’s conceivable that there’s a legitimate reason for the holdup–perhaps some senators really wanted another former district judge or something–but the longer this goes without any suggestion of a legitimate reason for the holdup, the more plausible the bias theory becomes.

  64. Goldwater Supporter,

    Funny that you assume that if the holdup is related to his sexual orientation that it must be republicans causing the delay. An assertion without evidence to support it. Because we all know that only republicans can be biased against homosexuals, right? And the idea that you would boycott one of the two political parties because a republican senator is blocking a nomination based on a bias against homosexuals is equally silly. Fred Phelps, that nutter leading Westboro Baptist Church is a democrat (that’s right, look it up), so I guess you can’t vote for democrats either.

  65. Of all the appellate judges (and justices) appointed by Obama, only Goodwin Liu has waited for confirmation longer than DuMont.

    link to en.wikipedia.org (see RNs 3-7 for original nomination dates)

    Of course, Liu is probably the Obama nominee that has drawn the most political criticism for his decided liberal leanings and appointment to the wacky ninth circuit. DuMont suffers from neither of these problems. As to your inquiry regarding homosexuality, it being one of those statuses that isn’t readily apparent in public (aside from Larry Craig’s situation), I can’t say how many of the other pending nominees are gay.

    All that aside, I agree that DC presents insufficient evidence for his claim. I tend to doubt a Federal Circuit appointment is being held up solely because of the nominee’s open sexual orientation. (If I’m wrong, then I am never voting R again.) However, the political/nomination process being so completely FUBAR, perhaps the best way to actually get evidence that this is not the case is for AIPLA, IPO, Lambda groups, and perhaps bloggers to start pushing for answers and action.

  66. Elena Kagan, Supreme Court Justice… Appointed to the big court! Clearly our Congress is not so obtuse.

    If Donald Trump were president, we would not be discussing this issue. :)

  67. Elena Kagan was voted to the Supreme Court, isn’t she gay?

    Sorry D, I love you man but this one assumes too much without any support. You can do better.

  68. Are there any other openly gay nominees whose appointments are presently pending? If so, for how long? Are there any federal judiciary nominees whose appointments have been pending longer and who aren’t openly gay? Show us something to indicate that this *isn’t* politics as usual.

  69. Clearly, you have bigotry issues too. There’s only one possible explanation given the overwhelmingly nonexistent evidence.

    I kid. The baseless accusations are a little hot on this post for my tastes too. I tend to like my conclusions with a little evidence.

  70. Isn’t an anti-gay bias a reasonable inference after this much time, especially considering how two other nominees have been sworn in during that time? DuMont clearly has the qualifications, so the only potential problem would relate to moral character. But no one is publicly accusing him of any character flaws.

    What do you make of all that? His nomination papers got lost in the mail between the White House and the Senate?

  71. Could this also be a more traditional holdup based on political disposition or judicial philosophy? The court handles at least a few politically charged issues, for example takings and claims against the government, and appeals from administrative bodies that call into the question the balance of power between agencies and the courts, or between Congress and the President. Could it be that there is reason to believe DuMont would be particularly “liberal” on these issues?

    Don’t forget that Judge Dyk’s nomination was held up for two years, and as far as anyone can tell, that had everything to do with plain old politics, and nothing more nefarious than that. He was pretty plugged into the democratic party. His wife was director of OMB under Clinton. Maybe DuMont has issues like that.

    Then again, maybe it is just the gay thing, which would indeed be a shame.

  72. Dennis. You make a serious claim. What evidence do you have that Mr. DuMont’s being an open homosexual is the sole or chief reason for the hold up of his nomination? Are you serious? How can you say such an intolerant thing without providing any factual basis. You actually indict everyone involved with the nomination based on a single scurrilous point for which you provide absolutely zero evidence? I think that’s absolutely shameful and unethical.

  73. I would like to know — not making any plagiarism accusations, mind you — why this post is word-for-word identical with a post on inventions.asia , also dated Apr21.2011.

    link to invention.asia

    Are them pesky Asian homosexuals pushin’ for a gay CAFC judge, too, and stealin’ Dennis’ copy?

  74. From my understanding of Senate procedure, even one Senator can put any legislation on “hold.” So it only takes one, but there might be more.

    I don’t know why this nomination is being held up, but few appointees I have ever seen seem as qualified as Mr. DuMont. Perhaps President Obama could do something here. I think he should.

  75. This is quite a conspiracy theory you have on your mind D.

    What inside sources do you have to cite, or is this all just idle speculation?

    Maybe they are simply concerned about his character, ability to lead in the very important field of patent lawl, or a possible pro-patent bias. Or maybe they just lost his application.

  76. Notwithstanding any fun to be had by poking at Sunshine, the holding back od someone seemingly so qualified cause O the man’s se_xual leanings are a travesty.

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