5 things to know about the 9th Circuit
California’s senators are hoping for a fresh start with the White House in 2019 on the 9th Circuit Court of Appeals.
But the tug of war over nominees that stalled the nominations and infuriated the state’s senators shows no sign of easing.
President Trump’s three picks to fill 9th Circuit Court vacancies in California didn’t get confirmed — or even get a hearing — in 2018, which means he will have to renominate candidates next year. The state’s two Democratic senators, Dianne Feinstein and Kamala Harris, have appealed to the White House to reconsider its choices and resume negotiations over three nominees both sides accept.
The White House declined to comment on whether it plans to renominate the same three. But the president could face blowback from the right if he swapped one of the conservative judges for a more moderate, Democrat-backed pick.
“I think ... everyone’s going to be renominated from the previous batch,” predicted Carrie Severino, chief counsel and policy director at the conservative Judicial Crisis Network,
That would set up what’s likely to be another round of ugly confirmation fights.
Feinstein and Harris sent a letter to incoming White House Counsel Pat Cipollone in November asking “that the White House work with us to reach an agreement on a consensus package of nominees for vacancies to the 9th Circuit and to the district court vacancies in the Central and Southern Districts of California.” They have still not received an answer.
That could be due to the tumult at the White House counsel’s office, which saw a rash of staff departures over the last several months. Cipollone’s start was delayed by a longer than normal security clearance review. His first official day at the White House was Dec. 10, nearly two months after his predecessor, Don McGahn, left the administration.
McGahn oversaw the selection of Daniel Collins, Kenneth Lee and Patrick Bumatay to the 9th Circuit in California, which were announced on Oct. 10, a week before he stepped down. He did not alert Feinstein or Harris’ offices of the picks, after months of negotiations on judicial nominations faltered.
None of the three were on the list of possible nominees Feinstein and Harris had proposed in May, 2018, although Feinstein offered to consider Collins and another conservative judge, James Rogan, if the White House also nominated Lucy Koh, whom President Obama nominated for the 9th Circuit in 2016. Senate Republicans refused to hold a vote on Koh’s nomination.
Feinstein made that offer in an Oct. 5 letter, a day before Judge Brett Kavanaugh was confirmed to the Supreme Court.
The bitter confirmation fight over Kavanaugh’s nomination inflamed partisan tensions in the Senate and between Democrats and the White House. Feinstein played a particularly prominent role in that battle as the go-between for Dr. Christine Blasey Ford, a California professor who accused Kavanaugh of sexually assaulting her when the two were teenagers. Republicans accused the veteran Democrat of trying to sabotage his nomination.
“I can’t imagine it improved relationships when you have someone who so blatantly abused the Senate processes,” said Severino, whose organization supported Kavanaugh’s nomination. “However, it’s my understanding that there were issues with actually being able to work with the White House that predated that.”
Feinstein’s staff has maintained it has been open and willing to work with the president on nominations, as it has with past Republican administrations. But the senators were blindsided by the White House picks, particularly Bumatay, who was not on the list of names the McGahn had told the senators the White House were considering.
Traditionally, presidents have worked with home state senators when nominating federal judges, negotiating to find consensus picks. And the majority party in the Senate typically has not moved forward with hearings with judicial nominees unless the home state senators returned what is known as a “blue slip,” signaling their acceptance.
The Trump White House has reached agreements with some Democratic senators on appeals court picks in Illinois and Hawaii. But the administration and Senate Republicans have also angered Democrats by pushing controversial nominees for appeals court vacancies in Ohio, Minnesota and Wisconsin over the objections of the local senators.
“We’ve seen examples of the White House working with Democratic senators on the Judiciary Committee to choose consensus nominees who were able to garner broad, bipartisan support,” Feinstein said in a statement to the Bee. “We are hopeful we can do the same in California.”
As the leading Democrat on the Judiciary Committee, Feinstein has more clout than most Senate Democrats, and the White House and Senate Republicans were initially careful to engage her.
Last year, the White House sent Feinstein and Harris’ offices a list of possible nominees to fill vacancies left by the retirements of two 9th Circuit judges and the death of a third. That list included Lee and Collins, but not Bumatay.
The question now is whether Cipollone is willing to re-open the discussions that fell apart under McGahn. In their November letter, Feinstein and Harris wrote that they “continue to oppose the slate of nominees the White House put forward on October 10” but “remain hopeful that you will work with us to reach a bipartisan agreement in a timely manner.”
Thursday, Feinstein said, “Senator Harris and I made clear to the new White House Counsel Pat Cipollone that we continue to oppose the package of Ninth Circuit nominees put forward by the White House in October, and that the nominees were submitted without our agreement.”
She added, “We have also made clear that we are eager to work together to come to agreement on a package of nominees we could accept.”