Ending years of negotiations and speculation, President Trump has announced three nominees for the Ninth Circuit Court of Appeals this week. Leading Democrats have already voiced their displeasure over his choices, but there appears to be little substance to their objections.
Setting up the first fight over the judiciary for the 116th Congress, Trump nominated Daniel A. Bress, Daniel P. Collins, and Kenneth Kiyul Lee. Newly minted Senate Judiciary Committee Chairman Lindsey Graham (R-SC) said, “I’m very supportive of the nominees submitted by President Trump to serve on the Ninth Circuit Court of Appeals. These are highly qualified nominees and I am hopeful they will receive wide bipartisan support.”
Graham’s wish for bipartisan support is a triumph of hope over experience, given how Democratic senators and staff tried to derail the Brett Kavanaugh Supreme Court confirmation hearings – from physically disrupting the hearings themselves, through leaking the identity of anti-Kavanaugh witness Christine Blasey Ford.
Dem Complaints
Ranking committee member Dianne Feinstein (D-CA), who President Trump believes was behind the Ford disclosure, was quick to disparage the nominees and the president. She said in a joint statement with Democratic presidential candidate and fellow California Senator Kamala Harris:
“Unfortunately, the White House is moving forward with three nominees to a circuit court who have no judicial experience. The White House’s decision to push these nominees fails to secure consensus on the circuit court.”
It’s true that none of these three nominees have been judges before. What’s unclear is how this is an important objection. Since it wouldn’t make sense to appoint a judge from another Circuit Court of Appeals, that means Feinstein objects that the nominees were never District Court judges.
A good District Court judge has many balls in the air, dealing with all sorts of legal filings and overseeing cases often over years from their initial filing until they reach settlement or ruling. A federal trial might last a week and have a dozen witnesses, often after the culmination of years of preparation overseen by that judge. A Circuit Court of Appeals judge’s work is quite different. Federal appellate cases are assigned to three-judge panels. They are often argued exclusively via written briefs, and in cases with oral arguments, they typically involve only a few lawyers speaking for a few minutes.
Perhaps that’s why a dearth of District Court experience did not stop Senator Feinstein from supporting the nominations of, for instance, Sonia Sotomayor, and Ruth Bader Ginsburg, who were both appointees to the Circuit Courts of Appeals before they joined the Supreme Court. In fact, no sitting Supreme Court justice has District Court experience, a deficiency in background heretofore unmentioned by either Harris or Feinstein.
Double Standard
All current Justices but one were on the Circuit Courts when they were nominated to the high court. That one exception had zero judicial experience and was nevertheless nominated to be on the Supreme Court. Here’s what Feinstein thought of nominee Elena Kagan:
"This is an inordinately qualified woman. [I]t's not easy to be summa cum laude from Yale, go to Oxford, be summa cum laude when you get your law degree from Harvard, be professor of law at the University of Chicago, dean of the Harvard School, adviser to the president, and the top lawyer for the government..."
Perhaps previous judicial experience is a new qualification the Senators from California can be expected to demand from all future Circuit Court nominees of either party? I wouldn’t hold my breath. The more likely scenario is that Harris and Feinstein find it inconvenient to list the true cause of their opposition to these nominees: They are likely to rule in ways the senators dislike. To that end, President Trump continues to do his very best work in office as the nomination and appointment of constitutional originalists continue apace.
Roll Up, Roll Up
Two of these nominees are former law clerks for Justice Scalia, a noted favorite of Trump. One of them, Daniel Bress, replaced Patrick Bumatay, a candidate that is particularly troubling for Democrats. Mr. Bumatay is an assistant U.S. Attorney and a conservative, who also happens to be gay, and Filipino-American. According to The Wall Street Journal, it’s the combination of his minority statuses along with a fidelity to the Constitution as written that makes him so dangerous to the Democrats:
“Democrats are apparently frightened that at his age and with his political identity, he might eventually be Supreme Court material.”
Is it bigotry if you do it for a good cause? Bumatay is a bit young for the Circuit Court at 40, but one suspects no objection about that would be rendered if he believed in a “living constitution.” We may see more of him yet, however, as he has been nominated to a District Court judgeship. I’m sure he can look forward to Feinstein’s support for future nominations once he has a few miles on his gavel.
Is it bigotry if you do it for a good cause?
About 20% of Americans live in the Ninth Judicial Circuit, our largest, which has a reputation as being on the left edge of legal opinion, and often extremely so. Derisively referred to as the “Ninth Circus,” it is a court to which conservatives are eager to add some of their own. There are six vacancies, and if these three nominees are confirmed, it will leave the court with ten judges appointed by Republicans and 16 by Democrats.
The Senate can vote to approve these nominees with a simple majority, which Republicans have (53-47). When Democrats had a majority in the Senate, they stripped the minority Republicans of most their power in the nomination process. Republicans have kept those rules in place, so Democrats have little power to stop the nominations now that the shoe is on the other foot.
