Why is the White House working with Feinstein and Harris on selecting judges?

In this post, I listed nine federal appeals court nominees resubmitted to the Senate for confirmation this year, including two nominees for the Ninth Circuit. Unfortunately, Trump did not renominate three other Ninth Circuit nominees he submitted to Senate last year.

One of these nominees is Patrick Bumatay. A graduate of Yale and of Harvard Law School, Bumatay clerked for a district court judge and for a Tenth Circuit judge. He then served in various important positions at the Justice Department, including as Counselor to the Attorney General and as a federal prosecutor in the criminal enterprises and narcotics sections of the U.S. Attorney’s Office in San Diego. In the latter capacity, he argued cases before the Ninth Circuit.

Bumatay is thus well qualified for the Ninth Circuit. Oh, and if confirmed, Bumatay would become the first openly gay judge on the Ninth Circuit and the first Filipino American to serve as an Article III federal appellate judge.

Clearly, President Trump should have renominated him.

But the scandal here isn’t that Trump didn’t renominate a well qualified gay Filipino conservative. The scandal is the administration’s reason for not doing so. Trump withheld the renomination out of deference to California Senators Dianne Feinstein and Kamala Harris.

Last November, Feinstein and Harris requested of the new White House counsel, Pat Cipollone, “that the White House work with us to reach an agreement on a consensus package” of appeals court nominees from California. The Democrats want to pick one name from the White House list, one from their own, and a third consensus nominee.

It’s hardly surprising that Feinstein and Harris want this. What’s shocking is that the White House didn’t dismiss the request out of hand. Instead, it took the request seriously — so seriously that it chose not to resubmit Bumatay’s nomination plus the nomination of two other highly qualified conservative nominees from California, Daniel Collins (a former Scalia clerk) and Kenneth Lee.

What on earth is the administration thinking? Feinstein and Harris have no power to prevent the confirmation of Bumatay, Collins, and Lee. And the Ninth Circuit needs all three. Remember, this is hands down the most left-wing appeals court in America. It has been instrumental in blocking key Trump administration initiatives.

The Ninth Circuit needs to be transformed. It won’t be transformed by adding one conservative, one moderate and one leftist handpicked by Feinstein and Harris.

The editors of the Wall Street Journal suggest that the administration’s motive is to produce less resistance to future Trump nominees including, perhaps, a nominee to succeed Justice Ginsburg.

No better explanation comes to mind, but this rationale is ridiculous. As the Journal notes, Harris is running for President and would go all-out to oppose any Trump nominee to the Supreme Court. Feinstein cannot be considered an honest broker after her disgraceful conduct during the Kavanaugh confirmation ordeal.

The arguments against dealing with Feinstein and Harris are overwhelming. In addition to those I’ve already presented there’s the obvious reality that, in the Journal’s words, “a concession to [Feinstein and Harris] 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,” resulting in “nominees who aren’t nearly as qualified, or as originalist in their thinking, as Mr. Trump’s nominees have been.”

The Journal concludes:

Consulting Senators on judicial nominees from their home state is a courtesy, not a right. It hails from a day when most Senators operated in good faith, unlike today. Democrats are trying to cajole White House concessions now because they know it will be harder to defeat nominees with 53 GOP Senators.

Remaking the federal judiciary may be the only thing a Republican Senate can accomplish in divided government. The White House shouldn’t water down the quality of its nominees to please Democrats who won’t be helpful when their votes are really needed.


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