A Tale of Two Nominees

This guest post was written by Jeremy Bressman, a second year student at Harvard Law School.  Jeremy’s interests include civil procedure, sentencing law, and federal courts.

A few weeks ago, President Obama nominated Paul Oetken for a seat on the Southern District of New York. Oetken is eminently qualified for the position:  After graduating from Yale Law (’91), he clerked on three courts, including the Supreme Court for Justice Blackmun, spent time at two major law firms, and worked in both the Office of Legal Counsel and the White House Counsel’s Office. Perhaps most importantly, if appointed, Oetken would become the first openly gay man to sit on the federal bench. (A nominee to the Federal Circuit, Edward Dumont, is also openly gay; a judge on the Southern District, Deborah Batts, is currently the only openly gay female on the federal bench.)

A few days later, the President nominated Arvo Mikkanen to a seat on the Northern District of Oklahoma. Like Oetken, Mikkanen certainly has the qualifications to be a federal judge: a Dartmouth College and Yale Law (’86) grad, Mikkanen himself clerked for two judges, has worked in both private practice and as an Assistant US Attorney, and is a former judge on numerous American Indian courts. If appointed, Mikkanen would become only the third Native American to ever sit on the federal bench. One of those judges, Frank Howell Seay of the Eastern District of Oklahoma, didn’t even learn of his Native American heritage until he was in his 50s.

These groundbreaking nominations have received very different reactions.  While Oetken’s nomination has caused little stir (and rightly so), Mikkanen’s nomination has been pummeled with criticism. Senator Coburn (R-OK) immediately denounced the nomination, saying that he believed Mikkanen was “unacceptable for the position and another example of how politics in Washington neglect to take into account what is best for the people of Oklahoma.” (Never mind that Mikkanen is being appointed to the federal bench.) As The Atlantic’s Andrew Cohen details in this interesting piece on the nomination, of all of the Congressional leaders from the state who have come out against the nomination (including Oklahoma’s lone Democrat!), none have provided a sense of why Mikkanen is “unacceptable.” And while they continue to gripe about the “process,” a hint of race politics seems to pervade the entire issue.

What do these two nominations say about the landscape of American politics and the federal judiciary? In our supposedly post-racial society in which issues of LGBT rights are constantly litigated before federal and state courts (e.g. DOMA, Prop 8, “Don’t Ask, Don’t Tell”), it is telling that the nomination of an openly gay man has caused no backlash, while the nomination of a member of a minority that makes up 8 percent of a state’s population can’t be shot down quickly enough. Certainly geography has something to do with these disparate reactions, with New York City being a much stronger bastion of liberalism than Oklahoma. But is that it? It would seem that the significance of Oetken’s nomination would provoke at least some backlash from more conservative circles.

Whatever this may mean, the Obama administration should at least be commended for its attempt to further diversify the federal judiciary. Let’s hope that this vision actually comes to pass.