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Ninth Circuit Nominee’s California Ties Questioned (2)

May 22, 2019, 4:55 PMUpdated: May 22, 2019, 8:08 PM

Daniel Bress has insufficient ties to California to fill a top federal judicial vacancy there, Democrats said Wednesday in warning that confirmation “opens the door” to circuit court nominees elsewhere with weak or no local connections.

“Today it’s a Virginia lawyer in California. Next it could be a California lawyer confirmed in Texas,” Sen. Dianne Feinstein, the Judiciary Committee’s top Democrat, told the panel ahead of testimony by Bress at his confirmation hearing.

Democrats view the appointment to the San Francisco-based U.S. Court of Appeals for the Ninth Circuit without their consent as another bid by Republicans to dilute their influence in the selection of circuit court judges. They sit regionally in lifetime appointments one rung below the Supreme Court.

President Donald Trump is fulfilling his campaign promise to appoint conservative judges, so far filling more than 40 appeals court vacancies since taking office. Democrats have opposed virtually all of them.

Judiciary Chairman Lindsey Graham said that he sidelined the Bress nomination to see if another candidate could be identified to satisfy the geographic concern. Bress was born and raised in California, but hasn’t lived there in years and works as a private attorney in Washington for Kirkland & Ellis.

“We could not find somebody who had a more California connection that Mr. Bress. I’ve waited months to try to find somebody,” Graham said, adding that “it’s been impossible to find consensus” on Trump circuit court nominees.

He said “we’re at an impasse” on California appointments due to “politics at the moment.”

Bress testified that he was a member of the California bar and had done more work in that state than any other, including involvement at all levels of the California court system.

Sen. Mike Lee, a Utah Republican, said that appellate attorneys often choose to work in Washington because it’s a hub for that type of work.

That doesn’t make Bress any less of a Californian, Lee said of the former clerk to late conservative Supreme Court Justice Antonin Scalia and a forner intern in Feinstein’s office.

Mike Davis, president of the newly launched Article III Project, a group formed to support Trump judicial nominees, said Bress’s ties to California are substantial.

Bress owns property in the state and “splits his time between the D.C. and San Francisco offices of his law firm,” Davis said.

Progressives suggest that Bress’s lack of ties to California shed light on how he will rule as a judge.

The selection suggests he was nominated because “Trump knows Bress will be a reliable ideologue on a court Trump has been fixated on, has vilified, and has sought to reshape,” according to the Alliance for Justice.

Alliance for Justice is a progressive organization that has advocated against many of Trump’s judicial nominees.

Republicans decided to allow votes on nominees even without “blue-slip” approval from home-state senators in a departure from Senate practice under the Obama administration.

California’s other senator, Democratic presidential hopeful Kamala Harris, protested Bress’s nomination by declining to ask him any questions.

Farmer’s Market Fireworks

A handful of district court judges also appeared before the committee.

Western District of Michigan nominee Michael Bogren faced heated questioning from Republican Sen. Josh Hawley of Missouri, over a brief Bogren wrote in an ongoing LGBT discrimination case in that district, Country Mill Farms, LLC et al v. East Lansing.

The case involves a Catholic family banned from participating in a farmer’s market because of their religious-based opposition to hosting weddings for same-sex couples.

Hawley said Bogren had compared the Catholic family’s religious beliefs to those of the Ku Klux Klan.

Bogren said he was simply arguing that if one can justify anti-LGBT discrimination stemming from religious beliefs, that would be problematic because one could similarly justify racial discrimination.

The committee also heard testimony from Eastern District of Michigan nominee Stephanie Dawkins Davis and Western District of Texas nominee Jason Pulliam, both of whom are black. Davis is Trump’s first black female judicial nominee.

Southern District of West Virginia nominee Frank William Volk also appeared at the hearing.

(Updates with comment from advocates on Bress California ties, Trump appointment, paragraphs 11 through 15.)

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com