After months of negotiations and delays, the White House is moving to fill California’s three vacancies on the influential 9th U.S. Circuit Court of Appeals — over the strenuous objections of the state’s two Democratic senators.
White House officials had been negotiating with Sens. Dianne Feinstein and Kamala Harris, both of whom sit on the Senate Judiciary Committee, earlier in the year about filling these and other federal court vacancies in the state. But that dialogue collapsed this past summer, Senate aides said.
On Wednesday night, the Trump administration announced it was nominating three attorneys to the 9th Circuit, the largest and busiest federal appeals court in the country. Among the thorny issues the court has tackled or could decide on are the legality of the Deferred Action for Childhood Arrivals, or DACA, program for undocumented young people brought to the country as children, the president’s travel ban on people from several Muslim-majority countries, and a lawsuit challenging the White House’s attempts to withhold federal funds from sanctuary cities.
The White House also announced nominees for three district court vacancies in California on Wednesday.
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President Trump’s nominees for the appeals court — litigators Daniel Collins and Kenneth Lee and Assistant United States Attorney Patrick Bumatay — are all based in Southern California, are prominent members of the conservative Federalist Society, and have worked for Republican administrations. None of the three were approved by Feinstein or Harris via a process known as a “blue slip,” the senators’ offices confirmed Thursday.
“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.
“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,” Lily Adams, Harris’ communications director, said in a statement.
Traditionally, presidents have worked with home state senators when nominating federal judges, agreeing not to nominate people unless those senators returned their blue slip in support of the prospective judge.
President Trump and Senate Republicans, however, have done away with that custom, angering Democrats as they pushed forward controversial nominees for appeals court posts in Ohio, Minnesota and Wisconsin.
As the leading Democrat on the Judiciary Committee, Feinstein has more clout than the average Senate Democrat. 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 reportedly included Lee and Collins.
According to legal experts McClatchy spoke to at the time, the two men and other names on the list were all respected attorneys. “By and large, (the White House’s candidates) have the kind of conventional legal credentials that you would be looking for,”said judiciary expert Russell Wheeler, a visiting fellow at the Brookings Institution, a centrist D.C. think tank.
But in her statement, Feinstein said she and Harris have significant concerns about both Lee and Collins. “I met with (White House Counsel) Don McGahn on June 27 to discuss the vacancies and explained that Senator Harris and I strongly opposed Daniel Collins,” the senator 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.”
Another issue for Democrats: the nominees’ age. The judgeships are lifetime appointments. Bumatay, Collins and Lee are all in their 40s and 50s– which means they could potentially remain on the 9th Circuit Court for decades. Democrats preferred older nominees.
In May, the senators sent the White House their own proposed picks: U.S. District Court Judge Lucy Koh, whom President Obama nominated for the 9th Circuit in 2016; U.S. District Court Judge Andrew Guilford; and Boris Feldman, a partner at Wilson Sonsini Goodrich Rosati in Palo Alto. Guilford and Feldman have GOP credentials, and both are in their 60’s.
On October 5th, Sen. Feinstein’s office sent a letter to White House Counsel Don McGahn acknowledging the White House had rejected the senator’s three proposed picks, and offered a compromise: Koh from the Democrats’ list, Judge James Rogan, a former Republican congressman and state legislator, from the White House list, and one other. Feinstein raised the possibility of “Daniel Collins or another nominee from one of our two lists” for the third vacancy.
“I hope to work with you to resolve this matter as soon as possible,” California’s senior senator wrote.
The White House did not take her up on that offer.
Update: This story was updated to clarify that the White House list of possible nominees was sent in 2017 not 2018.