Biden makes history with 12th Senate-confirmed LGBTQ judge

President Joe Biden secured the record for the highest number of openly LGBTQ judges appointed to the bench by any president when the Senate on Tuesday voted in favor of a military veteran who spent years working as a prosecutor becoming a life-tenured judge in Philadelphia.

The Democratic-led Senate voted 52-41 to confirm Mary Kay Costello to serve as a district court judge in the Eastern District of Pennsylvania, becoming the 12th openly LGBTQ judicial nominee under Biden to win confirmation.

That surpassed the record of Democratic former President Barack Obama, who had secured the confirmation of 11 openly LGBTQ judges during his eight years in office.

Lena Zwarensteyn, senior director of the fair courts program at the progressive Leadership Conference on Civil and Human Rights, applauded Biden for his push to diversify the bench.

“As LGBTQ rights are being subject to litigation across the country, it is increasingly clear that we need judges at all levels of the judiciary who understand what’s at stake,” Zwarensteyn said in a statement.

Costello, who is married to a woman, served in the U.S. Air Force from 1986 to 1994. She went on to earn her law degree from Temple University and worked from 2000 to 2008 in private practice as a lawyer at the law firms Saul Ewing and Akin Gump Strauss Hauer & Feld.

She has spent the bulk of her career at the U.S. Attorney’s Office for the Eastern District of Pennsylvania, which she joined in 2008, and where she has prosecuted bribery, health care fraud and other criminal matters.

Costello recently left the office while her nomination was pending and was sworn in last month as a federal magistrate judge.

Only in the last three decades have presidents nominated openly gay people to the federal bench.

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Former U.S. District Judge Vaughn Walker in San Francisco, who was nominated in 1989 by Republican former President George H.W. Bush, told the press in April 2011 that he was gay, but only after he retired. He had two months earlier struck down California’s gay marriage ban.

The first openly gay judicial nominee was Deborah Batts, who Democratic former President Bill Clinton nominated to become a federal judge in Manhattan. She was sworn in during Gay Pride Week in New York City in June 1994 and died in 2020.

She remained the only openly gay judicial nominee until 2011, when now-U.S. Circuit Judge Alison Nathan joined the bench as a trial judge in Manhattan following her nomination by Obama.

Nathan was later nominated by Biden to the 2nd U.S. Circuit Court of Appeals. Biden’s other LGBTQ appellate appointees are U.S. Circuit Judges Beth Robinson of the 2nd Circuit and Nicole Berner of the 4th U.S. Circuit Court of Appeals.

The bulk of openly LGBTQ nominees have come from Democratic presidents, though Republican former President Donald Trump appointed two openly gay judges.

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