Bench Memos

Law & the Courts

What Ever Happened to Those Ninth Circuit Nominees?

Last week the White House announced the re-nomination of 51 judicial nominees, including a dozen circuit court nominees. Conspicuously absent from this list were the three judges that President Trump had nominated to the Ninth Circuit from California in October:  Patrick Bumatay, Daniel Collins, and Ken Lee.

All three are outstanding, experienced, and have demonstrated a commitment to the rule of law. Bumatay and Lee have longstanding ties to the Federalist Society.  Collins is a former law clerk to the late Justice Antonin Scalia.

During the first two years of his administration, President Trump gradually filled nearly all of the circuit court vacancies that he inherited, along with additional vacancies that arose those first two years. But for 21 long months, the three California seats remained vacant as the White House attempted to work with Democratic Senators Dianne Feinstein and Kamala Harris to identify nominees.  And for 21 months, the two California senators dragged their feet.

In a letter to former Senate Judiciary Committee Chairman Chuck Grassley, then-White House Counsel Don McGahn wrote, “We have spent nearly two years attempting to engage constructively with the Senators regarding the growing number of judicial vacancies tied to California.” McGahn continued, “In fact, we have made more attempts to consult and devoted more time to that state than any other in the country.”

It was at this time that Senator Feinstein made known that—contrary to press reports—she would be willing to agree to a judges deal that included Lucy Koh (a current district judge in California and one of President Obama’s nominees to the Ninth Circuit), James Rogan (a current California Superior Court judge), and a third nominee of the White House’s choosing.  This is very similar to the deal that the White House reportedly is considering currently, which would include one nominee chosen by the senators, one by the White House, and a third “consensus” nominee.

This begs the question: why in the world would the White House agree to such a deal?

There are currently six vacancies on the Ninth Circuit (three in California, one in Oregon, one in Washington state, and one in Arizona).  Confirming judges to these six seats would bring the balance of active judges to 13-Republican-appointed and 16-Democrat-appointed—within just two seats of a flip.  This, on the “Ninth Circus”—the most notoriously-liberal appellate court in the land.

Reports are that the California senators are particularly focused on dropping Bumatay from the deal.  Bumatay, 40, is a federal prosecutor from San Diego, presently on detail to Main Justice.  Bumatay, a Filipino, would be the first openly-gay judge to serve on the Ninth Circuit.

Of course, it makes perfect sense that Feinstein and Harris would want to ditch Bumatay: the last thing they want is an originalist minority on the bench.

Moreover, agreeing to Senator Feinstein’s deal would just reward her bad behavior.  It would show other senators from blue states that you just need to keep biding your time and dragging out the process.  Such is a winning formula for keeping the president from fulfilling his constitutional duty to nominate judges.  As the Wall Street Journal Editorial Board put it today:

A concession to them now on nominees would rightly be seen as political weakness. It would concede influence that neither Senator has earned and set a precedent for other Democrats who would demand similar consideration. The result would be nominees who aren’t nearly as qualified, or as originalist in their thinking, as Mr. Trump’s nominees have been.

Lastly, letting Senators Feinstein and Harris get away with dropping Bumatay from the deal would deprive the country of a highly-qualified jurist with impeccable credentials. Bumatay is a Yale College and Harvard Law School graduate.  He clerked for the distinguished Tim Tymkovich of the Tenth Circuit, and he has had an impressive career serving as a federal prosecutor and as counselor to senior Department of Justice leaders in the George W. Bush and Trump administrations.  His prosecutorial background would bring sorely needed balance to a circuit known for liberal abuses and lawless decision-making.

And at age 40, Bumatay could serve for decades to come, which is part of the reason why the Democrat senators are desperate to convince the White House to pick someone less impressive.  Let’s hope the White House doesn’t fall for this ploy.


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