Oklahoma judge on 10th U.S. Circuit Court of Appeals defies expectations in same-sex marriage case

WASHINGTON — Eight years ago, some of the leading Democrats in the U.S. Senate didn’t want to make Jerome A. Holmes the first black judge on the 10th U.S. Circuit Court of Appeals.

They were concerned that Holmes, then an Oklahoma City attorney in private practice, wouldn’t be open-minded when it came to civil rights and protecting people from discrimination.

Holmes had written opinion pieces, some for The Oklahoman, blasting affirmative action. Some of the nation’s oldest civil rights organizations lined up against his nomination to the federal appeals court.

“I have voted for the confirmation of dozens of judges with whom I have ideological differences,” the late Sen. Edward Kennedy said the day of the Senate vote for Holmes’ confirmation. “However, the nomination of Jerome Holmes is different. I do not believe that he will serve on the federal bench with a fair and open mind.”

Oklahoma Sens. Tom Coburn and Jim Inhofe — both Republicans — vigorously defended Holmes against the Democratic attacks, vouching for his ability to follow the law with an open mind.

Coburn and Inhofe were apparently right — much to their chagrin — as Holmes recently became the latest example of how hard it is to predict the way a judicial nominee will rule from the bench.

In June, Holmes, 52, sided with another judge on the appeals court to strike down Utah’s ban on same-sex marriage for violating the 14th Amendment guarantees of due process and equal protection. Last month, he joined that same judge — a Democratic presidential nominee — in striking down the same ban in Oklahoma, his adopted home state.

Both of the decisions were appealed last week to the U.S. Supreme Court.

Coburn told The Oklahoman that Holmes’ ruling was “pretty disappointing to me. It surprised me that he saw it that way ... That’s one of the things that goes along with lifetime appointments to the federal bench.”

Inhofe said, “While I disagree with Judge Holmes on this one decision, he has a strong history of ruling in line with conservative values. This includes supporting the death penalty, opposing affirmative action and allowing construction of the southern leg of the Keystone pipeline to continue despite pending legal challenges.

“As the nation saw with Chief Justice (John) Roberts and his vote on the Obamacare ruling, no party will agree 100 percent of the time with judges they’ve voted for or their President has nominated.”

Holmes’ columns

Holmes was nominated in 2006 by then-President George W. Bush.

He had been in Oklahoma for most of the previous 15 years, as a law clerk, a federal prosecutor and an attorney for the prestigous firm Crowe & Dunlevy. The son of a U.S. diplomat, Holmes received his undergraduate degree at Wake Forest University; his law degree from Georgetown University; and a master’s degree in public administration from the Kennedy School of Government at Harvard University.

In 2003, when the U.S. Supreme Court ruled the University of Michigan law school could use race as a factor in admissions, Holmes wrote a column in The Oklahoman saying that the court “missed an important opportunity to drive the final nail in the coffin of affirmative action.”

In 2002, he wrote a column for the paper saying black civil rights leaders such as Jesse Jackson and the Rev. Al Sharpton “peddle a misguided and dangerous message of victimization” to blacks.

Those sentiments were discussed frequently after Holmes’ nomination to a court just below the U.S. Supreme Court.

U.S. Sen. Patrick Leahy, a Vermont Democrat and chairman of the Senate Judiciary Committee, even suggested that Holmes’ columns got him the nomination.

“The fact that Mr. Holmes took part in hard-edged debate on public issues should not be disqualifying,” Leahy said on the Senate floor at the time. “It appears, however, that those opinions are what earned him this elevated nomination and what his proponents expect he will deliver from the bench.”

Jim Roth’s support

Holmes had some strong bipartisan support from back home. Among those writing letters on his behalf were then-Gov. Brad Henry, a Democrat, and then-Oklahoma County Commissioner Jim Roth, another Democrat.

Roth wrote in his letter that he considered Holmes “a principled leader who demonstrates mutual respect for all people. In particular, he is respectful of views that differ from his own and he enjoys tremendous bipartisan support and respect.”

Roth told The Oklahoman last week in an email, “I have known Judge Holmes for more than 12 years through legal circles, the Downtown Rotary Club and civic events.

“I actually had the chance to get to know him better and become friends as we both attended an annual ‘Oklahoma Symposium’ at Quartz Mountain every April hosted by Judge Robert Henry and others to share ideas and contemplations for building a better Oklahoma. In that regard I grew to know Jerome as a very smart, fair thinking, principled person.

“Because I know Judge Holmes to be a conservative thinker, bound by the highest principles of jurisprudence and law, I was not surprised that he voted in the majority recognizing the federal Constitution’s inclusion of all people, equally.”

And Roth, who is gay, said, “What’s more, because I knew Jerome before he was appointed to the appellate bench, I also personally knew that every time my partner and I had the occasion to cross paths with him at civic affairs, he was always kind and polite, evidencing to me that he did not harbor bias or bigotry in his heart. And on the bench he has proven his allegiance to America’s highest ideals of equal treatment under the law.”

Interracial marriage case

At oral arguments in the Utah and Oklahoma same-sex marriage cases, Holmes asked about their relation to the landmark U.S. Supreme Court case from 1967 that struck down Virginia’s law against interracial marriage.

“Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State,” the Supreme Court said in that case.

Holmes’ interest in the 1967 case signaled that he was at least thinking about applying a legal standard that would make it tough for states to defend bans on same-sex marriage.

Indeed, the 2-1 rulings in the Utah and Oklahoma cases applied that high standard.

And, in citing the case about interracial marriage in the Utah decision, Holmes and Judge Carlos Lucero agreed that the 1967 case was about the “freedom of choice to marry.”

Holmes wrote separately in the Oklahoma case to absolve his state of passing the 2004 ban on same-sex marriage out of hostility to gays and lesbians.

State voters, he wrote, had only “formalized” a definition of marriage that every state had used “for almost all of American history.”

Holmes is now a big part of Oklahoma’s and the nation’s brief legal history of same-sex marriage litigation. It is not known whether the Supreme Court will agree to review the Oklahoma or Utah cases — or any same-sex marriage case — in the term that begins in October.

If the court declines to review either of them, same-sex marriages may begin in Oklahoma sometime later this year.