Senate Okays Gay Judge, but Native Americans Still Need Not Apply

In the nation's history, only two Native Americans have ever been confirmed by the Senate for a job on the federal bench

The United States Senate was quick to congratulate itself and accept the congratulations of others Monday evening before, during, and after it confirmed by an 80-13 vote the judicial nomination of a man named J. Paul Oetken, a corporate attorney from Iowa. Oetken is gay and, unlike his many gay predecessors in the federal judiciary, evidently went through the confirmation process with the issue of his sexuality very much on the table.

"As the first openly gay man to be confirmed as a federal judge," Sen. Chuck Schumer (D-N.Y.) crowed from a Senate microphone, Oetken "will be a symbol of how much we have achieved as a country in just the last few decades. And importantly, he will give hope to the many talented young lawyers who until now thought their paths might be limited because of their sexual orientention."

So "openly" gay men after "decades" in the wilderness now may have a modicum of "hope" that they one day can become a federal judge. That's good. Perhaps now that the Senate has overcome one longstanding prejudice it can focus upon another. Now that an openly gay person can be judged by what he does, and not by who he is, the august body can begin to do right by another minority group that has been persecuted for centuries in America.

In the nation's history, only two Native Americans have ever been confirmed by the Senate for a job on the federal bench. Two. And of those two only one was "openly" Native American at the time of his confirmation (that judge, Frank Howell Seay, found out about his Indian heritage long after he was on the bench). Those numbers are particularly appalling when you consider that (only) 170 or so black judges have been appointed over the same span.

Today, the Senate has before it the nomination of a man named Arvo Mikkanen, who is partially of Native American descent. Mikkanen went to Dartmouth College and Yale Law School, clerked for two federal judges, and has been a federal prosector for nearly two decades. He received a "unanimously qualified" rating from the American Bar Association. President Barack Obama nominated him to fill a seat on the federal trial bench in Oklahoma.

Yet there have been no speeches in the well of the Senate on behalf of Mikkanen. No senators have patted themselves on the back for breaking through another barrier of bias and bigotry. Instead, the Mikkanen nomination languishes in silence, six months after the President first put it into play. No hearing date has been set for his nomination even though other candidates nominated before him already have been approved out of Committee.  

Oklahoma's Congressional delegation was quick to denounce Mikkanen's candidacy as "unacceptable" but to this day has never (publically, anyway) explained why. Meanwhile, the White House appears to have expended no political capital in pushing Mikkanen's nomination to the forefront of the battle between the branches over judicial nominees. Like so many of his predecessors, Mikkanen has been left twisting in the wind by the U.S. government.

The Senate unburdened itself Monday from one of its many shameful legacies. But it still bears the white man's burden, and the nation's past due responsibility, of bringing Native American lawyers to the federal bench. It is no justification -- merely a convenient excuse, maybe for both parties -- that the White House didn't properly consult with Oklahoma's delegation before placing Mikkanen's name in nomination.

Mikkanen has done enough in his professional life to merit a hearing and a vote on the merits of his candidacy. He went to Yale, just like Oetken. He clerked for a smart judge, just like Oetken. He's worked for the executive branch -- just like Oetken. At last count, there were 91 vacancies throughout the federal court system. Do you think maybe the Senate would owe the American people at least an explanation for sitting on the Mikkanen nomination? 

Sen. Schumer proudly told the world Monday: "When Paul becomes Judge Oetken, he will be living proof to all those young lawyers that it really does get better." Very true. Also true is the sad fact that the Senate's shoddy treatment of Mikkanen reminds young Native American lawyers that, for them, it really doesn't "get better." Or at least it hasn't yet.


Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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