Eugene Nickerson - Federal Judicial Service

Federal Judicial Service

On August 16, 1977, President Jimmy Carter nominated Judge Nickerson to the United States District Court for the Eastern District of New York. He was confirmed by the U.S. Senate on October 20, 1977. According to legal scholars, he showed law-and-order sternness when handling criminal cases while often exhibiting a liberal impulse in civil cases.

In 24 years on the federal bench at the United States District Court for the Eastern District of New York in Brooklyn, Judge Nickerson presided over a 1987 trial in which John Gotti, head of the Gambino Mafia family, was acquitted. In 1986 he dismissed claims by another Mafiaso, Vincent Gigante, that he was not mentally competent – a ruling that led eventually to Mr. Gigante’s conviction. In a 1983 ruling he abandoned Supreme Court precedent and barred prosecutors from using their peremptory challenges to oust jurors solely on the basis of race. His reasoning ultimately helped persuade the Supreme Court to stop allowing jurors to be removed on the basis of race.

In 1990, he castigated New York public school officials when he learned that they had dragged their feet for years in establishing an adequate education program for the city's 116,000 handicapped schoolchildren. In a hotly contested case, in 1995 he struck down the Pentagon's don't ask, don't tell policy. Calling the policy a violation of free speech, Judge Nickerson wrote, Hitler taught the world what could happen when the government began to target people not for what they had done but because of their status. A year later, a three-judge federal appeals panel in New York sent the case back to him, directing him to assess the constitutionality of the Pentagon's ban on homosexual activity.

In 1997, he again struck down the Pentagon's policy, but this time on the ground of equal protection. Rejecting the military's argument that prohibiting homosexual conduct was needed to maintain unit cohesion, he wrote, It is hard to imagine why the mere holding of hands off base and in private is dangerous to the mission of the armed forces if done by a homosexual but not if done by a heterosexual. Showing his civil libertarian bent, he added, It is not within our constitutional tradition for our government to designate members of one societal group as pariahs. But the following year a three-judge appeals court overruled Judge Nickerson and upheld the military's ban on homosexual activity and don't ask, don't tell policy. Saying that courts are ill suited to second-guess military judgments, the appellate panel ruled that the Pentagon's policy did not violate constitutional rights because of the special circumstances of the military.