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Openly Gay Prosecutor Among Two Planned Ninth Circuit Nominees (2)

Sept. 20, 2019, 5:10 PMUpdated: Sept. 20, 2019, 10:37 PM

Patrick Bumatay, an openly gay prosecutor, is among two attorneys President Donald Trump said he plans to nominate to the appeals court where his administration has fought and will continue to fight some of its toughest legal battles, including on immigration.

The nominations of Bumatay and Lawrence VanDyke to the U.S. Court of Appeals for the Ninth Circuit prompted the usual heated reaction from both sides of the aisle that has defined contentious nomination fights, while a gay rights group that doesn’t oppose Bumatay called into question VanDyke’s selection. It pointed to an article he wrote putting homosexual “rights” in quotes.

Nominees’ past writings have led to grillings from Senate Judiciary Democrats, like in the recent hearing of Second Circuit pick Steven Menashi.

California Democratic Sens. Dianne Feinstein and Kamala Harris already opposed Bumatay’s nomination when Trump put him up for a Ninth Circuit seat previously. His nomination lapsed in the Senate, and he was nominated to a trial court seat before Trump announced on Sept. 20 that he wants to try to put him on the appeals court again.

The head of the Article III Project, a group established to fight for Trump judicial picks, cast Democratic opposition to Bumatay as hypocritical.

“Democrats claim that they want more diversity on the federal bench, but they don’t mean it. Their actions speak louder than their words,” said Mike Davis, the group’s founder and president who was chief counsel for nominations to former Senate Judiciary Chair Chuck Grassley.

But though Lambda Legal’s Sasha Buchert said they don’t oppose Bumatay, she said VanDyke looks like he is “par for the course” in terms of Trump judicial nominees, calling the 2004 article he wrote as a Harvard law student “deeply troubling.”

The progressive Demand Justice’s Chris Kang pointed to VanDyke’s championing of conservative legal causes, like advocating overturning Roe v. Wade, the landmark Supreme Court abortion decision that touched off a culture war that still echoes throughout the country and frequently arises as an issue in judicial nomination hearings.

The White House didn’t immediately respond to a request for comment.

But VanDyke has support, too. “As a group dedicated to defending religious freedom, we are thrilled President Trump continues to nominate men and women to our Courts who are committed to protecting our First Freedom,” said Kelly Shackelford, president, CEO, and chief counsel for First Liberty Institute.

Bumatay is an assistant U.S. attorney in Southern California. VanDyke is a deputy assistant attorney general at the Justice Department in the Environment and Natural Resources Division. Before that, he was Nevada and Montana solicitor general and worked in private practice for Gibson Dunn & Crutcher LLP.

Their formal nominations must still be sent to the Senate. The Republican-led chamber recently surpassed 150 federal judicial confirmations in the Trump era, one marked by a historic push to fill the judiciary with young conservatives.

Some of the most contentious legal disputes in recent years have gone through the Ninth Circuit, including litigation over Trump’s travel ban and, more recently, his asylum ban.

Bumatay has “been a career prosecutor on the frontlines of the immigration fight in California for a decade,” said Davis, adding that Democrats are “purely punishing him because he is a Republican and conservative who happens to be a gay Filipino.”

“As a federal prosecutor in the U.S. Attorney’s office for the Southern District of California, Bumatay has prosecuted the worst of the worst and also argued cases before the Ninth Circuit,” said Carrie Severino, chief counsel and policy director of Judicial Crisis Network.

Trump also plans to nominate the following to district court seats:

John Holcomb, a partner with Greenberg Gross in Costa Mesa, California, to the Central District of California.

Knut Johnson, a criminal defense attorney and law professor, and Michelle Pettit, an assistant U.S. attorney and Navy veteran, to the Southern District of California.

Steven Kim, a U.S. magistrate judge, to the Central District of California.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

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