The uncertainty over three Ninth Circuit court openings was settled Wednesday evening when the Trump White House announced its intended nominees for the appeals court.
But the announcement, naming lawyers Kenneth Lee, Daniel Collins and Daniel Bress to the U.S. Court of Appeals for the Ninth Circuit, also laid bare the continued beef over judicial nominations between the Trump administration and Sens. Dianne Feinstein and Kamala Harris, the home state senators for the vacancies.
The announcement came after discussions appeared to collapse between the two Democratic senators and the White House over the six openings for California judicial seats. The White House often consults home state senators for circuit and district court nominations, including working with Democratic lawmakers to find agreeable candidates.
Feinstein and Harris had opposed the White House’s previous batch of nominees, which included Lee, Collins and assistant U.S. attorney Patrick Bumatay. The lawmakers were optimistic about negotiations over picks after the White House noticeably left several names off its list of re-nominations in early January.
Feinstein had urged a compromise package on nominations, which would include nominating one of the White House’s preferred picks, one of their preferred picks, and a compromise pick, in October and November letters to White House counsel Pat Cipollone.
That appeared to be largely for naught Wednesday when Feinstein and Harris denounced the circuit nominations and said they were “deeply disappointed” by the result. The White House’s move came as conservatives mounted a pressure campaign on the Trump administration to avoid concessions to Democrats. A Wall Street Journal editorial said any concession to the Democrats would be “political weakness.”
The picks themselves weren’t aware of their fate. The White House only notified lawyers of their nominations yesterday, according to a source familiar with the situation.
Wednesday’s list moved Bumatay, a Filipino-American and an out gay male, to a district court nomination in the Southern District of California. The all-male nominations list also renominated Stanley Blumenfeld, Jeremy Rosen and Mark Scarsi to seats in the Central District of California.
It’s not clear whether Feinstein and Harris will return a blue slip for Bumatay. Sen. Lindsey Graham has previously said he would honor the blue slip tradition for district court picks, but not circuit court picks. Bumatay did not return a request for comment.
Both senators had staunchly opposed his nomination to the Ninth Circuit, but Wednesday’s joint statement only acknowledged that the senators have had “productive conversations” with the White House on district court nominations.
Bress’ nomination did not come out of left field. The Kirkland & Ellis partner has previously interviewed with Feinstein’s judicial selection committees, according to a release. An August 2017 Above the Law article identified Bress as interviewing for a Ninth Circuit seat with the White House.
On Wednesday, Feinstein and Harris in a joint statement said they raised “concerns” about Bress, noting that he is based in Washington, D.C., is young and lacks judicial experience.
His nomination also means two former clerks for Justice Antonin Scalia could soon join the Ninth Circuit. Both Bress and Collins clerked for the late justice.
Collins is a Los Angeles-based partner at Munger, Tolles & Olson. He previously served as an associate deputy attorney general and held stints as an assistant U.S. attorney in the Central District of California and as an attorney adviser at the DOJ’s Office of Legal Counsel. Feinstein and Harris said Thursday that concerns about “his temperament and rigidity were raised during his vetting,” relating to litigation positions he’s taken in the past.
Lee, a Los Angeles-based partner at Jenner & Block, was previously an associate counsel under the George W. Bush White House. Feinstein and Harris said Thursday they opposed his nomination in part because he did not disclose “controversial writings” to their staff. The senators said the writings “outlined extreme views on a number of important issues like affirmative action and voting rights.”
Graham, who chairs the judiciary committee, said in a statement Thursday he was “very supportive” of the Ninth Circuit nominees. “These are highly qualified nominees and I am hopeful they will receive wide bipartisan support.”