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Openly Gay Prosecutor Could Again Be Trump Appeals Court Pick (1)

June 12, 2019, 4:19 PMUpdated: June 12, 2019, 6:50 PM

President Donald Trump could again get the chance to influence the nation’s largest federal appeals court with another lifetime appointment, possibly with an openly gay prosecutor.

Judge Carlos Bea of the U.S. Court of Appeals for the Ninth Circuit plans to take “senior status upon the nomination, confirmation and appointment of his successor,” a court spokesperson said.

Senior status is a type of semi-retirement which allows judges to keep working but relinquish their active seats.

Patrick J. Bumatay, an openly gay assistant U.S. attorney, could be a potential Trump pick to fill the opening, a source close to the nomination process said.

Bumatay was previously nominated to the Ninth Circuit by Trump, but the appointment lapsed without action by the Senate. He’s since been nominated to the U.S. District Court for the Southern District of California, which is pending.

Bumatay is a member of the National Filipino American Lawyers Association.

Conservatives including Mike Davis, who runs the Article III Project launched to support Trump judicial nominees, applauded the possibility of Bumatay’s nomination.

Bumatay worked tirelessly to confirm Justices Neil Gorsuch and Brett Kavanaugh to the U.S. Supreme Court and “would make a phenomenal addition to the Ninth Circuit,” Davis said in a tweet.

Davis also said Bumatay could be a logical choice from a vetting perspective. He’s a pending district-court nominee, White House lawyers have already consulted with the states two Democratic senators about his credentials, and the FBI background is complete.

He’s also received a rating of “Qualified” from the American Bar Association’s Standing Committee on the Federal Judiciary, which is lower than its highest rating of “Well Qualified.”

After graduating from Harvard Law School, he clerked for Tenth Circuit Judge Timothy Tymkovich and Judge Sandra Townes of the U.S. District Court for the Eastern District of New York.

Trump has appointed six judges to the appeals court, which currently has two vacancies. Kirkland & Ellis partner Daniel Bress has been selected to fill one of them.

Even with a new appointment, Trump, a Republican, still would be shy of “flipping” the Ninth Circuit from the current majority of Democratic appointees. Nevertheless, Republican appointees can provide dissenting voices that might moderate majority opinions. They can also write dissents that might encourage the U.S. Supreme Court to review a decision.

Trump has called out the Ninth Circuit for rulings against his administration’s policies and has tangled with California Sens. Dianne Feinstein and Kamala Harris over appointments.

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