Washington Blade - September 23, 2005
Lou Chibbaro Jr., lchibbaro@washblade.com.

Spagnoletti, 42, a prosecutor for 13 years before Mayor Anthony Williams appointed him attorney general, was a candidate for Superior Court judge in 2000 but was passed over for the appointment by President Clinton, who selected another candidate.

The decision on Sept. 13 by the District of Columbia Judicial Nomination Commission to name Spagnoletti as one of the three candidates for the judgeship post gives Bush an opportunity to appoint the District's first openly gay judge.

The nomination commission sent Spagnoletti's name to the White House two weeks after the Bush administration's last remaining high level appointee who self identified as gay - AIDS adviser Dr. Joseph O'Neill - left the government. It also comes at a time when some gay Republican activists have speculated that the president has bowed to pressure from conservative religious groups to refrain from appointing any more open gays to important positions.

Bush's gay appointees

In his first term in office, Bush appointed a gay foreign service officer to be U.S. ambassador to Romania and named two successive gay men -GOP activist Scott Evertz and O'Neill - as director of the White House Office of National AIDS Policy. Bush later named O'Neill as the deputy coordinator and chief medical officer of the State Department's global AIDS office, which runs the administration's multi-billion dollar international AIDS relief program.

Bush named a New York gay businessman to the National Commission on Fine Arts, which makes recommendations on historic government buildings and monuments.

Several conservative religious groups, including the Family Research Council and Focus on the Family, denounced the gay appointments, saying they would hurt Bush's chances for winning support from evangelical Christian voters in the 2004 election.

White House spokesperson Maria Tamburri said the White House never comments on individuals under consideration for presidential appointments until a decision is made and the appointment is announced.

She declined to comment on speculation that Bush was under pressure from conservative groups not to make gay appointments.

"The president believes the most qualified people should be chosen for important positions such as judgeships," she said.

Under the city's home rule charter, the Judicial Nomination Commission interviews candidates and selects three finalists for judgeship appointments and sends their names to the president. The president has 60 days to select a nominee from the three finalists and submit that person's name to the U.S. Senate for confirmation.

The president has the option of rejecting the three finalists. In that case, the commission would send the names of another three candidates to the White House for the president's consideration.

The other two candidates the nomination commission selected as finalists for the Superior Court judgeship post, in addition to Spagnoletti, are Carol A. Dalton, 55, a magistrate judge in the Superior Court's family court division; and Andrew Foise, 47, an assistant attorney general during the Clinton administration who currently works as a consultant and attorney in private practice.

Channing Philips, a spokesperson for the U.S. Attorney's office for the District of Columbia, said Spagnoletti has been praised as a highly skilled prosecutor and supervisor during his 13-year tenure as an Assistant U.S. Attorney.

Spagnoletti served from 1998 to 2003 as chief of the office's Sex Offense & Domestic Violence Section. From 1995 to 1998, he served as the first chief of the office's Domestic Violence Unit, which he helped create, according to Philips. Spagnoletti also serves as an Adjunct Professor of Law at Georgetown University Law Center.

He worked as an attorney in private practice between 1987 and 1990, when he joined the U.S. Attorney' office. He received his law degree from Georgetown University Law Center.

"He was a fantastic and very well respected trial attorney," Philips said.

Eldie Hutcheson, a former assistant U.S. Attorney General during the Clinton administration and a current official with the National Gay & Lesbian Task Force, said Spagnoletti was considered "highly qualified" for the judgeship position when his name was submitted to Clinton for consideration in 2000.

She said she does not know why Clinton chose another person for the judgeship nomination, but she is certain that the decision had nothing to do with Spagnoletti's sexual orientation.

"I hope Bob makes it," Hutcheson said.

"D.C. has an elaborate process spelled out to guarantee the very best people are put forward for judgeships in terms of qualifications," Hutcheson said. "The process is to let merit be the driving force behind this."

There are currently about 50 openly gay judges throughout the United States, with all of them believed to be on the state or local level, said Dave DeCicco, a spokesperson for the Gay & Lesbian Victory Fund, which monitors gay elected and appointed officials. DeCicco said nearly all of the 50 gay or lesbian judges were elected.

An exception to this trend were two openly gay judges appointed by Florida Gov. Jeb Bush to the Florida State Circle Court for the Miami-Dade County area, DeCicco said.

Backed gay couples' rights

Spagnoletti created a stir earlier this year when he issued an advisory opinion saying same-sex couples married in Massachusetts could file a joint D.C. tax return "if they hold a good-faith belief that they are a validly married couple under the laws of Massachusetts."

He said his opinion was subject to review by the city's Office of Tax & Revenue, which has the final say over tax filing issues. The tax office issued its own ruling less than a month later declaring that same-sex married couples could not file a joint D.C. tax return because the city's tax law requires local tax policies to conform with the federal Internal Revenue Service policy.

Federal law prohibits the recognition of same-sex marriages under the 1996 Defense of Marriage Act.

Last year, Spagnoletti prepared a private legal opinion for Mayor Williams that reportedly states that existing D.C. law would allow the city to recognize same-sex marriages performed in Massachusetts, according to District government sources. The sources requested anonymity because they are not authorized to speak to the media.

Williams initially said he would release the opinion but later changed his mind, saying he was concerned that Congress would step in to overturn any proposal by D.C. to legalize or recognize gay marriage. Williams said he has no plans to release the opinion or take action on gay marriage any time soon.

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