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Historic LGBT Confirmation Gives Biden Second Circuit Flip (2)

Nov. 1, 2021, 10:30 PMUpdated: Nov. 1, 2021, 11:47 PM

The Senate confirmed Beth Robinson to the New York-based federal appeals court, marking an LGBT first and giving the court a majority of Democratic appointees.

The Democratic-led Senate voted 51-45 to confirm Robinson to a lifetime appointment on the U.S. Court of Appeals for the Second Circuit on Monday.

That makes her the first openly LGBT woman to serve as a federal appellate judge, according to the White House. Robinson already made history as the first openly LGBT Vermont Supreme Court justice, where she served since 2011.

The vote also “flips” the circuit back to a Democratic-appointee lean, which is an important step for President Joe Biden in making an impact on the federal courts. During his administration, Donald Trump flipped the Second Circuit to a majority of Republican appointees.

The Second Circuit—which encompasses New York, Connecticut and Vermont—is a chief venue for cases involving corporations and Wall Street. While the party of appointing presidents isn’t an exact measure of a judge’s judicial philosophy, it’s often used as an indication of how a circuit court leans. The composition of a court can be important in en banc cases before the full court.

While the court technically has more Democratic than Republican appointees, Biden has an opportunity to give the court a true liberal-leaning edge when he replaces Judge José Cabranes, a Bill Clinton appointee who often votes with the court’s conservatives. Cabranes and fellow Clinton appointee Rosemary Pooler both announced they’d take a form of semi-retirement known as senior status in October.

Robinson received Republican support from Sens. Lisa Murkowski of Alaska and Susan Collins of Maine. She joins two Biden appointees already on the Second Circuit: Eunice Lee and Myrna Pérez.

The Senate also confirmed former Virginia Solicitor General Toby Heytens to the Fourth Circuit in a 53-43 vote. In addition to Democratic votes, Heytens received support from Republican Sens. Lindsey Graham of South Carolina, Chuck Grassley of Iowa, Collins, and Murkowski.

The pair of confirmation votes come a week after the Senate confirmed most of Biden’s judicial nominees awaiting action by the full chamber. In the week-long sprint, the Senate confirmed six district nominees, one circuit nominee, and teed Robinson and Heytens up for confirmation.

Biden has so far seen 28 of his judicial nominees confirmed. He’s prioritized demographic and professional diversity.

(Updates with Robinson vote detail in the seventh paragraph and Heytens' confirmation in the eighth paragraph.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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