Sens. Dianne Feinstein and Kamala Harris complained Thursday that they did not sign off on three White House nominees for open California seats on the 9th Circuit Court of Appeals and said they would oppose their confirmation in the Senate.
President Trump announced Wednesday evening he had nominated Assistant U.S. Atty. for the Southern District of California Patrick J. Bumatay, Los Angeles appellate attorney Daniel P. Collins and Los Angeles litigator Kenneth Kiyul Lee for California-based vacancies.
Feinstein, the ranking Democrat on the Senate Judiciary Committee, said she and the administration were still trying to reach a consensus on nominees when the White House abruptly announced them.
“I repeatedly told the White House I wanted to reach an agreement on a package of 9th Circuit nominees, but last night the White House moved forward without consulting me, picking controversial candidates from its initial list and another individual with no judicial experience who had not previously been suggested," Feinstein said in a statement.
Bumatay works as a counselor to the U.S. attorney general’s office on various criminal issues, including opioid abuse and transnational organized crime. Feinstein’s office said his name was never among those proposed by the White House.
Collins is an appellate attorney and partner with the Los Angeles office of Munger, Tolles & Olson. He was previously an associate deputy attorney general.
Lee is an appellate attorney and a partner in the Los Angeles office of Jenner & Block LLP. He was previously an associate White House counsel for President George W. Bush.
“Instead of working with our office to identify consensus nominees for the 9th Circuit, the White House continues to try to pack the courts with partisan judges who will blindly support the president’s agenda, instead of acting as an independent check on this administration,” Harris spokeswoman Lily Adams said.
The lingering California vacancies had been a striking exception to the push by Trump and Senate Republicans to rapidly fill empty judgeships across the country with young, conservative nominees. Trump has filled 29 circuit vacancies nationwide in less than two years, but the California vacancies remained empty.
In a letter sent to Judiciary Committee Chairman Charles E. Grassley (R-Iowa) on Wednesday, White House Counsel Donald McGahn said the White House made a good faith effort to work with California’s senators, both Democrats.
“We have made more attempts to consult, and devoted more time to that state than any other in the country,” McGahn said in the letter.
He detailed dozens of meetings with Feinstein or her staff regarding the White House’s list of potential 9th Circuit judges since Trump took office and the lack of “constructive” feedback he says he received. He said that Harris refused to “engage with the White House at any level, whatsoever on the issue.”
“At a certain point, we just have to nominate people,” White House spokesman Raj Shah told The Times.
Both Harris’ and Feinstein’s staffs took issue with McGahn’s description, saying their judicial selection review committees, made up of legal experts, law professors and attorneys, looked at but did not recommend any of Trump’s picks. Together the senators proposed their own nominees in May.
“I met with Don McGahn on June 27 to discuss the vacancies and explained that Sen. Harris and I strongly opposed Daniel Collins,” Feinstein said. “I also told him Kenneth Lee had problems because he failed to disclose to our judicial selection committees controversial writings on voting rights and affirmative action.”
In a letter sent to McGahn last week, Feinstein said the White House had rejected the three nominees she and Harris had proposed in May, District Judges Lucy H. Koh and Andrew J. Guilford and appellate attorney Boris Feldman, but she asked that negotiations continue.
“While the White House rejected my initial offer, I remain hopeful that we can work together to come to consensus on a package of three nominees,” Feinstein said in the letter dated Oct. 5.
Compromises on circuit nominees were once common when the president and the home-state senators came from different parties, especially when there were multiple vacancies. And in the past, disapproval by home-state senators, shown through refusal to return so-called blue slips, would have in effect killed a nomination. But this year, for the first time, Grassley has brushed off home senators’ views and moved forward without their approval.
Though legal experts once predicted that Grassley might defer to the preferences of the ranking Democrat on his committee, Grassley and Feinstein’s relationship was strained during the contentious confirmation hearings for new Supreme Court Justice Brett Kavanaugh.
“The decision to move forward with these nominees, without consultation or responding to my acceptance of the White House offer, reflects President Trump’s desire to remake the court. I expect my blue slips to be honored as I was acting in good faith,” Feinstein said.
It’s unclear whether the Senate will have time to consider the California nominees this year.
Although three California nominees wouldn’t flip the political lean of the largest circuit district in the country, they would increase the conservative presence on a court that has delivered some of Trump’s biggest policy setbacks, including rulings against his travel ban and immigration programs.
If Trump filled all of the current openings in the nine Western states that make up the 9th Circuit, its balance would be 16 Democratic appointees to 13 Republican appointees.
The Senate on Thursday night approved Idaho attorney Ryan Nelson to join the 9th Circuit, bringing the total number of Republican appointees on the circuit to 10.