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

Considered by many Democrats to be closed-minded on matters of civil rights, Jerome A. Holmes, of Oklahoma City, was the swing vote in striking down Oklahoma ban on same-sex marriage on the 10th U.S. Circuit Court of Appeals.
by Chris Casteel Modified: August 10, 2014 at 10:00 pm •  Published: August 10, 2014

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.

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by Chris Casteel
Washington Bureau
Chris Casteel began working for The Oklahoman's Norman bureau in 1982 while a student at the University of Oklahoma. After covering the police beat, federal courts and the state Legislature in Oklahoma City, he moved to Washington in 1990, where...
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