Daniel Bress, a Kirkland & Ellis litigation partner and former clerk to Justice Antonin Scalia, defended his ties to California on Wednesday, as a hearing on his federal appeals court nomination almost entirely devolved into a debate over geographic roots.
The Trump administration nominated Bress in January to a California-based seat on the U.S. Court of Appeals for the Ninth Circuit, selecting him to fill the vacancy left by Judge Alex Kozinski. Kozinski, who faced allegations of sexual misconduct, retired in late 2017.
But Bress faces deep opposition from Democrats, including his home-state Sens. Dianne Feinstein and Kamala Harris, who say Bress is an East Coast lawyer with little claim to a California seat. Republicans have dismissed those concerns, countering the nominee was born and raised in rural California and still occasionally lives and litigates there.
Bress, testifying before the Senate Judiciary Committee, spoke to his Golden State roots. While he acknowledged moving to the East Coast roughly a decade ago, he said he’d dedicated himself to maintaining a “significant and lifelong professional connection” to California.
“When my wife’s career brought us from San Francisco to Washington, I chose to continue making California central to my practice. I’ve been involved in cases at all levels of the California court system, federal and state and worked on more litigation in California than any other state by far,” he said. “It has been my great privilege to be a practicing lawyer in those courts; I could not be more excited about the possibility of returning home and serving our legal system in a part of our country that means so much to me.”
The nominee described growing up in Gilroy, California, as the “most formative experience” of his life. “Those who know me well know that I’m never happier than when I’m back home in Gilroy writing briefs, working in the family orchard, or visiting with old friends,” he said.
The hearing highlighted divisions over the White House’s nomination process for the Ninth Circuit, a federal appeals court that the Trump administration has aggressively looked to shape. Six Trump appointees have been confirmed to the San Francisco-based court, including most recently Jenner & Block partner Kenneth Lee and Munger, Tolles & Olson partner Daniel Collins.
Feinstein, a Democrat, warned Wednesday that proceeding with Bress’ nomination would set a dangerous precedent. She said she feared the Senate would no longer consider nominees’ ties to states, likening it to the committee’s abandonment of the so-called blue-slip process for circuit court nominees.
“Once this door is open, all of our states are subject to having out-of-state nominees confirmed,” Feinstein said. “Today it’s a Virginia lawyer in California; next it could be a California lawyer in Texas or South Carolina.”
Senate Judiciary chairman Sen. Lindsey Graham, R-South Carolina, said Wednesday he paused Bress’ nomination to search for a suitable replacement, but fell short.
“I had pulled this nominee to see if we could find an adequate substitute with absolutely no avail,” he said, before suggesting that Harris, as a California senator, would never find any Trump nominee acceptable. “We could not find somebody that had a more California connection than Mr. Bress. I’ve waited months to try to find somebody,” Graham said.
Harris disputed Graham’s claim and said she told the White House during negotiations that she would have green-lit the ascension of Stanley Blumenfeld, a Los Angeles county judge, to the Ninth Circuit. “It was the White House who refused to agree to that proposal,” she said, noting the White House nominated Blumenfeld to a federal district court.
Harris did not question Bress on Wednesday because, she explained, she did not want to “legitimize” a hearing being held over the objections of home-state senators.
Democrats on the committee did press Bress for his views on the Supreme Court’s landmark 1954 desegregation ruling Brown v. Board of Education and other abortion rights cases. Such questions have become a standard feature in hearings for Trump’s court picks, roiling conservatives who say the questions are designed to trap nominees.
“The core holding of Brown is unique. It’s monumental. It’s a decision that is monumental not only in American law but in American life. And that core holding of Brown is not being contested. So in light of that what I can say with respect to Brown is that Brown’s core holding is correct. And I think that everyone here is probably very grateful for that,” Bress said in an exchange with Sen. Richard Blumenthal, D-Connecticut.
Blumenthal later asked Bress about other Supreme Court precedents, including the 1965 ruling in Griswold v. Connecticut, establishing the right to privacy in a case around access to contraception, and the 1973 decision in Roe v. Wade, establishing a women’s right to abortion.
Bress described Griswold as a “seminal landmark decision of the Supreme Court, and what I can tell you is if a case were to involve that decision, I would faithfully implement it.”
Of Roe, he said, “Senator, I would give the same answer. That’s another landmark decision of the Supreme Court, it’s been reaffirmed by the Supreme Court on various occasions. It’s not for me to grade that decision; it’s for me to faithfully implement that decision which I would do.”
The Trump administration first nominated Bress in January. The White House initially put forth Justice Department lawyer Patrick Bumatay for the seat, before replacing him with Bress. Bumatay was nominated to a Los Angeles-based federal district court instead.
Bress clerked for Scalia from 2006 to 2007, the same term as Sen. Mike Lee, R-Utah, and another Trump appeals court pick, Judge Eric Murphy of the Sixth Circuit. Bress and Murphy together clerked for Judge Harvie Wilkinson III of the Fourth Circuit the year before, from 2005 to 2006.
According to the financial disclosure form Bress filed with the Senate Judiciary, the Kirkland partner made $1,763,556 in income from the firm in 2017, $1,881,855 in 2018, and $18,000 in 2019 at the time of the form’s filing on Feb. 8. Kirkland had profits per equity partner of $5,037,000 in 2018 and average compensation—all partners of $2,510,000, according to the latest figures from The American Lawyer. Bress also holds stock in IBM Corp., Pepsico Inc., Procter & Gamble, SYSCO Corp., and Exxon Mobile Corp., according to the Senate filings.
He mostly represents corporate clients in state and federal courts, including representing chemical company BASF. Bress said Wednesday he also maintains a substantial pro bono practice, including representing clients in two death-penalty cases.
Senators also heard from a handful of federal trial court nominees on Wednesday, including Plunkett Cooney attorney Michael Bogren, a nominee to the federal trial court in the Western District of Michigan. He faced a grilling from Sen. Josh Hawley, R-Missouri, who accused Bogren of writing an incendiary brief about a Catholic family’s religious views on homosexuality.
They also heard from federal magistrate Judge Stephanie Davis, nominated to the Eastern District of Michigan; Prichard Young of counsel Jason Pulliam, nominated to the Western District of Texas; and U.S. Bankruptcy Chief Judge Frank Volk of the the Southern District of West Virginia, nominated to the federal district court there. The committee also heard from Kentucky state judge David Tapp, who has been tapped to a seat on the U.S. Court of Federal Claims.