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Trump’s Openly Gay Ninth Circuit Nominee Poised for Confirmation (1)

Dec. 10, 2019, 9:50 AMUpdated: Dec. 10, 2019, 2:42 PM

One of two Trump nominees likely to be confirmed to the nation’s largest appeals court this week is an openly gay prosecutor who aided efforts to appoint Neil Gorsuch to the Supreme Court and consulted on the Trump administration’s zero tolerance Southern border.

A confirmation vote is planned Dec. 10 on Patrick Bumatay’s selection to the U.S. Court of Appeals for the Ninth Circuit after the Senate voted to invoke cloture, or end debate on his nomination.

The Republican-led Senate is in an all-out push to confirm more judges. It cleared eight district judges last week, bringing the total of Trump appointments to district and circuit courts to 170. That total includes Gorsuch and Brett Kavanaugh to the high court. Trump previously said he aims to have 183 federal judges appointed by the end of the year.

As an openly gay man and Filipino-American, Bumatay brings diversity to Trump’s mostly straight, white judicial nominees. Bumatay’s nomination, though largely overshadowed by controversy surrounding his would-be colleague on the Ninth Circuit, Lawrence VanDyke, has been a long time coming for the White House.

Trump nominated Bumatay to judicial posts on two other occasions: First to the Ninth Circuit and later to a federal district court in California. The Senate didn’t act on either. He was officially renominated to the California-based appeals court in October after Judge Carlos Bea announced he was retiring.

Bumatay is an assistant U.S. attorney in Southern California. His primary experience is in the Justice Department, but he previously worked in private practice at Morvillo Abramowitz Grand, Iason & Anello and clerked for federal judges on the Eastern District of New York and the Tenth Circuit. Bumatay also volunteered for President George W. Bush’s 2000 campaign for president, and was later a staff assistant and paralegal in the Bush White House.

Experience in Question

Those opposed to Bumatay’s nomination say his lack of judicial experience and involvement in the Trump administration’s controversial immigration policies, make him unqualified for the lifetime appointment. His supporters say criticisms by Democrats are unfair and hypocritical.

In his responses to questions posed by members of the Senate Judiciary Committee after his Oct. 30 confirmation hearing, Bumatay said his Justice Department work included assisting in the nomination of Gorsuch to the Supreme Court and consulting on a memorandum that launched the administration’s “zero tolerance” policy along the Mexican border.

Dan Goldberg, legal director at the liberal-leaning judicial advocacy group Alliance for Justice, said Bumatay’s political work is cause for concern. It gives pause as to whether he’s being picked to be an unbiased jurist or if he’s being nominated by the White House as a reliable vote for its policies, Goldberg said.

“There has to be in the state of California, given its population, thousands of conservative Republican lawyers, and it’s noteworthy that instead of choosing a lawyer with more experience, they chose someone young with such deep partisan ties,” Goldberg said.

Bumatay’s supporters, however, see that same experience as qualifying.

Mike Davis, the president and founder of the conservative Article III Project who knows Bumatay personally, said his former colleague’s experience comes from decades of trying cases in federal courts, private practice and in the Justice Department.

Davis, whose group is dedicated to supporting Trump’s judicial nominees, also said opposition to Bumatay, who is Filipino-American, reflects a larger trend among Democrats.

“The Democrats and their left-wing allies have a long and well-documented history of unfairly attacking minority conservative judicial nominees,” Davis said, pointing to a tally his organization has been keeping. As an example, Davis’s organization points to Senate Democrats’ opposition to Bush appeals court nominee Miguel Estrada, who is Latino, in the early 2000s.

Some minority nominees, however, have gained overwhelming support from Democrats. Barbara Lagoa, a Hispanic and recent appointee to the Eleventh Circuit, was confirmed by an 80 to 15 vote last month.

No Home-State Support

Bumatay also lacks the support of both home-state Democratic senators, which in previous years would’ve been disqualifying.

At his confirmation hearing, California Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, said while she appreciated Bumatay’s service to California and the diversity he would bring to the court, she had concerns about his past experience. She said “his work in appellate courts is extremely limited.”

He also doesn’t have the support of Sen. Kamala Harris, a former California attorney general who’s also cited his lack of experience.

Bumatay defended himself in response to questions about his experience.

“I’ve argued two times in the Ninth Circuit, and I’ve authored about a half dozen federal appeals, and I’ve also clerked in the federal appellate courts, so I know what the job entails,” Bumatay said at his hearing.

Bumatay was also given a unanimous “Qualified” rating by the panel of the American Bar Association that reviews judicial nominees. Those ratings have been controversial of late as nine nominees, including fellow Ninth Circuit nominee VanDyke, received a rare “Not Qualified” assessment. The Senate will vote Dec. 10 on cloture for VanDyke.

In the Ninth

The two confirmations would add to eight Trump appointees to the Ninth Circuit, the most of any appeals court, though judges appointed by Democrats still outnumber their Republican-appointed counterparts on the court that has been considered liberal.

Trump has tangled with the Ninth Circuit during his presidency, and openly criticized it. One case involved a decision to uphold a block on two Trump rules that would expand exemptions to contraceptive services under Obamacare and another one that upheld a block on the administration’s plan to use military funds to build a wall on the Southern border.

But not all the Ninth Circuit rulings lately have gone against the administration. A three judge panel recently lifted a nationwide block on Trump’s rule denying visas to immigrants who would be likely to use U.S. public aid programs.

The Ninth Circuit covers California, Arizona, Alaska, Guam, Hawaii, Montana, Nevada, Idaho, the Northern Mariana Islands, Oregon, and Washington.

(Updates with more information about the demographics of Trump's nominees in the fourth paragraph.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

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

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