Yesterday, I wrote about the three conservatives President Trump nominated for the Ninth Circuit last year, but did not renominate this year. The unwillingness to renominate the three came about after a request by California Senators Dianne Feinstein and Kamala Harris. They asked that the White House “work with us to reach an agreement on a consensus package” of appeals court nominees from California. The package they desired would have consisted of a liberal, a moderate, and a conservative from Trump’s original list.
There’s no harm in asking, but Feinstein and Harris may have been surprised that the White House entertained the request. I know I was. Instead of a polite no thanks, the administration declined to renominate the three original selectees when it sent a list of 51 renominees to the Senate earlier this month.
Today, the story has a happy ending — mostly. The White House has announced its intention to nominate two of the three original nominees — Daniel Collins and Kenneth Lee — plus a new nominee — Daniel Bress.
From all I can tell, Bress is a solid conservative. He clerked for two conservative jurists — J. Harve Wilkinson of the Fourth Circuit and Justice Scalia. Bress is also well qualified for the federal appellate bench. He’s considered one of the top appellate lawyers in Washington, D.C.
President Trump did not renominate Patrick Bumatay, another strong conservative, to the Ninth Circuit. Had he been confirmed, Bumatay would have been the first openly gay judge on the Ninth Circuit and the first Filipino American to serve as an Article III federal appellate judge.
Bumatay didn’t come away empty, though. Trump has nominated him to be federal district court judge (Southern District of California).
What happened here? I’m not sure. My guess is that Feinstein and Harris realized all along that the White House wouldn’t go for a mixed slate of Ninth Circuit judges, with some selected by the two libs. Their more realistic goal, I believe, was to derail Bumatay.
Why? Because down the road, Bumatay might have been a candidate for the Supreme Court. And the last thing the left wants is a conservative, originalist Supreme Court nominee who is both gay and Asian.
There’s precedent for this sort of play. The left went all out to keep the outstanding Miguel Estrada off the D.C Circuit because it feared the eventual nomination to the Supreme Court of a stellar Hispanic conservative originalist.
Based on my incomplete knowledge of the two candidates, I’m at least as happy with Bress as I would have been with Bumatay. The ethnicity and sexual preference of a jurist mean nothing to me.
Moreover, Bumatay, though taken off the fast track, hasn’t exactly been derailed. There’s no reason to assume he won’t move up if he does well as a district court judge.
The cynicism of Feinstein and Harris leaves a bad taste in my mouth, and I would have loved it if Trump had stiffed Feinstein and Harris completely. But this may be a case of all’s well that ends well.