The U.S. Senate this month confirmed a gay man to a federal district court seat in San Francisco –marking the first time an openly gay nominee has been appointed to the district court for what is often considered the world’s gayest city.
The U.S. Senate confirmed Patrick Casey Pitts by a vote of 53 to 46 on June 14, with only two Republicans –Susan Collins and Lindsey Graham— voting yes. The no votes included both senators from Texas and Florida. The only Republican presidential candidate in the Senate, Tim Scott of South Carolina, did not vote.
Pitts is a labor-side attorney and partner in the public interest law firm of Altshuler Berzon in San Francisco. He will now join the district court for the Northern District of California, covering San Francisco, Oakland, San Jose, and Eureka.
Pitts’ confirmation makes him the seventh openly LGBT federal district court appointee nominated by President Biden. President Obama had named only three openly LGBT to federal district court seats by his second year; but he eventually named 10 in all.
In February, the Senate confirmed three other openly LGBT judges nominated by Biden to a federal district bench: Daniel Calabretta, to the Eastern District of California (in Sacramento); Ana C. Reyes, to the District of D.C.; and Gina R. Mendez-Miro, to the District of Puerto Rico. President Biden has also appointed two lesbians to the Second. Circuit U.S. Court of Appeals (Beth Robinson and Alison Nathan). The Senate approved Calabretta on a vote of 51 to 45 (4 not voting); it approved Reyes on 51 to 47; and approved Mendez-Miro 54 to 45.
And in March, the Senate confirmed Jamar K. Walker on a 52 to 41 vote (7 not voting) to a district court seat for the Eastern District of Virginia, in Norfolk.
Biden nominated most of these district court judges last fall, and some court watchers posting comments on various websites predicted the nominations would fail. Many polls in fall of 2022 were suggesting Republicans would regain control of the Senate and reject President Biden’s nominees. But Democrats held onto the Senate last November, and the nominations were resubmitted with the start of the new Congressional session.
Six Republican senators posed 187 questions to Pitts through written queries, asking about various judicial issues and cases. Senator Ted Cruz of Texas asked Pitts to explain his understanding of several gay-related opinions at the Supreme Court, including Masterpiece Cakeshop v. Colorado and Fulton v. Philadelphia. Each time, Pitts simply relayed the basic points of the majority opinion. Cruz also pressed him repeatedly on decisions involving religious views, such as on the Supreme Court’s approval of post-game prayer on a public high school football field. Pitts again simply restated each opinion’s basic points.
Senator Mike Lee of Utah made note of a paper Pitts had co-authored. Entitled “Applying Bostock to Bargaining, Benefits, and Litigation,” the paper discussed the landmark decision written by Justice Neil Gorsuch that held “An employer who fires an individual merely for being gay or transgender defies” Title VII of the federal Civil Rights Act. Lee quoted a line from the article which stated that the opinion was based on Gorsuch’s “belief that the meaning of ‘sex’ had to be determined by reference to its ‘original public meaning . . . at the time of [Title VII’s] enactment’ in 1964.”
“Do you agree with Justice Gorsuch’s ‘belief’ that words should be defined according to original public meaning? Or should meaning change as social norms and linguistic conventions evolve?” asked Lee.
Pitts replied that the Supreme Court’s 2020 decision in Bostock v. Clayton County held that courts “normally interpret a statute in accord with the ordinary public meaning of its terms at the time of its enactment.”
“If confirmed, I will faithfully apply binding Supreme Court and Ninth Circuit precedents regarding statutory interpretation, including Bostock.”
Pitts graduated from Yale University and Yale University Law School. He clerked for Ninth Circuit U.S. Court of Appeals Judge Stephen Reinhardt, then joined the Altshuler Berzon law firm. Pitts participated in activities of Bay Area Lawyers for Individual Freedom and helped the National Center for Lesbian Rights represent a trans-man in Louisiana whose employer ordered they present as female at work. Pitts was also lead author of a brief in the Sixth Circuit, opposing a law banning same-sex marriage. And he has been a member of San Francisco’s gay running group, the Frontrunners, since 2013. The American Bar Association rated Pitts “qualified” for the job.
President Biden has now appointed a total of nine LGBT judges to the federal bench (two appeals court and seven district court). President Obama appointed 11 (one appeals court and 10 district court); President Trump appointed two (one appeals, one district).
While Pitts is the first openly gay nominee to be confirmed to the federal district court in San Francisco, Judge Vaughn Walker came out as gay after retiring from his seat on the San Francisco federal district court. Walker presided over and ruled in the case challenging the constitutionality of Proposition 8, a voter-approved initiative to ban same-sex marriage. He ruled the initiative to be unconstitutional.