Perry et al v. Schwarzenegger et al
Filing
780
Declaration of Enrique A. Monagas in Support of #779 Opposition/Response to Motion filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I)(Related document(s) #779 ) (Olson, Theodore) (Filed on 5/13/2011)
Exhibit A
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Edward DuMont, praised by colleagues as ''brilliant,'' would be the first
openly gay federal appellate judge in the country
by Chris Geidner
Published on April 16, 2010, 9:27am | 3 Comments, 31 Tweets
''If you screwed your eyes shut and imagined a judge for the Federal Circuit, you would
have a hard time imagining anyone better than Ed DuMont.''
President Obama rendered that exercise – suggested by former Clinton administration U.S.
Solicitor General Seth Waxman – unnecessary when he nominated Edward C. DuMont,
who is openly gay, for a seat on the U.S. Court of Appeals for the Federal Circuit.
DuMont's nomination was announced on Wednesday, April 14, and requires Senate
approval.
Although DuMont would be the first openly gay
appellate judge in the United States, perhaps
more noteworthy in the current political climate
is the broad praise being given to the nominee –
from Obama and Seth Waxman, DuMont's
colleague at the WilmerHale law firm, to more
conservative legal thinkers such as appellate
judge Richard Posner and libertarian-leaning law
professor Eugene Volokh.
Waxman, who served as the top appellate
litigator in the Justice Department during
Clinton's second term, called DuMont ''brilliant''
and ''thoroughly professional'' when talking on
Thursday afternoon about his longtime coworker. Saying that he looked ''wistfully'' toward
DuMont's departure should the Senate approve
the nomination, Waxman said, ''I will miss him as
a colleague desperately.''
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As is customary for presidential judicial nominees, DuMont declined to comment for this
story.
A nominee to the Federal Circuit, DuMont would sit on a unique appellate court that has
its cases determined by the subject of the litigation and not geography – as is the situation
with other federal appellate courts. Among the cases the court hears are those dealing with
patent law and certain types of lawsuits against the government.
As a federal appellate judge, only the U.S. Supreme Court could reverse DuMont's
decisions – which would be made as one of three judges on a panel hearing appeals. Like
other federal judges, he would hold his position for a lifetime tenure.
In a statement announcing DuMont's nomination, Obama said, ''Ed DuMont has
distinguished himself throughout his legal career in both the public and private sectors. He
possesses a keen intellect and a commitment to fairness and integrity that will serve him
well as a judge on the Federal Circuit.''
The announcement did not mention DuMont's sexual orientation, and the White House did
not provide comment for this story. DuMont would only be the third known LGBT judge
serving in the federal judiciary, which consists of more than 850 judgeships. The others are
U.S. District Court Judge Deborah Batts, who was nominated for her judgeship in 1994
and sits in Manhattan, and U.S. District Court Judge Vaughn Walker, who sits in San
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Francisco and was not publicly known to be gay when nominated in 1989.
Because of the subjects heard by the court, some observers have suggested that DuMont's
nomination could be seen as less contentious than those to other appellate courts. As
Volokh, who teaches at the UCLA School of Law, wrote at The Volokh Conspiracy, ''It is
thus an unusually apolitical appellate court, which I hope means that Ed won't run into the
usual buzzsaw.''
Volokh – who describes DuMont as a friend – echoed Waxman's comments on Thursday
afternoon, referring to DuMont as the type of person you expect to be a judge – right out of
''central casting,'' Volokh said. He added, ''He smiles more than central casting judges
would do.''
Asked if sexual orientation would become an issue in DuMont's confirmation hearings,
Volokh said, ''I very much hope not,'' adding that he believed people would be ''especially
impressed by the apolitical, quality factors that Ed has going for him.''
When told of Volokh's comments, Waxman said, ''I have the same hopes. Ed DuMont is
such an obvious choice . . . it would be very dismaying to see anything get in the way of
it.''
Because of the court's jurisdiction, Volokh said he hoped it would be ''less likely that
people are going to focus on this as a culture war'' issue.
Referring to ''those who would focus on h is sexual orientation,'' Volokh – noting that most
who do so use ''sexual orientation as a proxy for political ideology'' – said his hope for
DuMont was that ''even for those who would care about that on the Supreme Court, let's
not care about that for the Federal Circuit.'']]>
A graduate of Stanford Law School, DuMont clerked for Judge Richard Posner of the
Seventh Circuit Court of Appeals before going into private practice.
In response to an inquiry from Metro Weekly about DuMont's nomination, Judge Posner
wrote, ''DuMont was an excellent law clerk and has had a distinguished career since. He
seems eminently qualified to be a member of the Federal Circuit.''
Posner added, in response to mention in the inquiry that DuMont would be the first openly
gay appellate judge in the country, that he is ''not interested in people's sexual orientation.''
After working for Posner, DuMont entered private practice before spending more than
seven years in the Department of Justice as an assistant to the solicitor general, where
DuMont first worked with Waxman.
DuMont has argued 18 cases before the Supreme Court, and Waxman described how
DuMont's facility with the ''astonishing, technical complexities'' of modern inventions and
the ''doctrinal issues'' present in patent law make him ''such an obvious choice'' for the
Federal Circuit.
The Senate Judiciary Committee has not yet scheduled a confirmation hearing on
DuMont's nomination. Of Obama's 18 other appellate nominees, seven have been approved
by the Senate and have taken their judgeships. Five of the remaining 11 have been reported
out of committee and await action by the full Senate. The remaining six – all nominated in
February or March – await committee action.
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