Pres­i­dent de­fies Cal­i­for­nia se­na­tors with three 9th Cir­cuit judge nom­i­na­tions

Lodi News-Sentinel - - NATION - By Emily Cadei and Kate Irby

WASH­ING­TON — 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.

Pres­i­dent Don­ald 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 de­ferred to 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.

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 spring, 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 Sen. 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.

The se­na­tors re­sponded in May with their own pro­posed picks: U.S. Dis­trict Court Judge Lucy Koh, whom Pres­i­dent Barack 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 60s.

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