Trump has opportunity to flip the 9th Circuit, so why isn’t he? (Update)

Trump has opportunity to flip the 9th Circuit, so why isn’t he? (Update)

Bringing the federal judiciary back to the center has been one of the great successes of Trump’s first two years in office.

As mentioned many times before, Trump was presented with an opportunity to realign the federal judiciary for a generation given the large number of Court of Appeals and District Court vacancies when he took office. Judicial nominations, particularly to the Supreme Court, were a core Trump campaign promise and a huge motivator for Republicans in 2016.

Despite unprecedented Democrat obstruction which has strung out not only judicial but other nominees, Trump has moved a substantial number of nominees through the pipeline to confirmation.

The obstruction included withholding blue slips, and insisting on 30 hours of floor “debate” time for each nominee, not for any other purpose than slowing down the process. Then Senate Judiciary Chair Chuck Grassley finally brought the blue slip policy back to where is was intended, and refused to delay the process indefinitely otherwise the refusal to return a blue slip would turn into a de facto filibuster (which the Democrats eliminated in 2013 for appeals and district court nominees). There has been noise about lowering the floor debate time period (since these nominees almost never are actually debated), and there’s an indication such a rule change may take place in the next month or two.

While Trump and Senate Republicans, have made progress, they have not kept up with the pace of vacancies:

However, Democrats have held up enough nominations that there are more judicial vacancies now than when Trump was inaugurated two years ago.

In January 2017, there were 17 open seats on federal circuit courts and 108 vacancies on federal district or specialty courts, according to the Judicial Crisis Network, a conservative political group that monitors judicial nominations. Today, it’s 15 circuit court vacancies and 149 open seats on district or specialty courts.

“There are now more vacancies than there were on Inauguration Day,” said Carrie Severino, chief counsel and policy director for the Judicial Crisis Network. “Time for Democrats to stop the bullying and obstruction, and confirm the judges.”

I lamented earlier this month that Trump was slow to renominate nominees Democrats refused to hold over from the last Congress, but since that post, Trump has announced 51 nominees to be sent to Congress.

That’s good.

But there’s a potential bad here.

Carrie Severino, chief counsel and policy director to the Judicial Crisis Network, writes in National Review that Trump appears to be playing footsie with Democrats when it comes to the 9th Circuit, What Ever Happened to Those Ninth Circuit Nominees?

Last week the White House announced the re-nomination of 51 judicial nominees, including a dozen circuit court nominees. Conspicuously absent from this list were the three judges that President Trump had nominated to the Ninth Circuit from California in October:  Patrick Bumatay, Daniel Collins, and Ken Lee.

All three are outstanding, experienced, and have demonstrated a commitment to the rule of law. Bumatay and Lee have longstanding ties to the Federalist Society.  Collins is a former law clerk to the late Justice Antonin Scalia.

During the first two years of his administration, President Trump gradually filled nearly all of the circuit court vacancies that he inherited, along with additional vacancies that arose those first two years. But for 21 long months, the three California seats remained vacant as the White House attempted to work with Democratic Senators Dianne Feinstein and Kamala Harris to identify nominees.  And for 21 months, the two California senators dragged their feet….

Severino indicates there might be a deal to be struck with California Senator Dianne Feinstein on nominees agreeable to her, but why play footsie with DiFi?

This begs the question: why in the world would the White House agree to such a deal?

There are currently six vacancies on the Ninth Circuit (three in California, one in Oregon, one in Washington state, and one in Arizona).  Confirming judges to these six seats would bring the balance of active judges to 13-Republican-appointed and 16-Democrat-appointed—within just two seats of a flip.  This, on the “Ninth Circus”—the most notoriously-liberal appellate court in the land.

Reports are that the California senators are particularly focused on dropping Bumatay from the deal.  Bumatay, 40, is a federal prosecutor from San Diego, presently on detail to Main Justice.  Bumatay, a Filipino, would be the first openly-gay judge to serve on the Ninth Circuit.

Of course, it makes perfect sense that Feinstein and Harris would want to ditch Bumatay: the last thing they want is an originalist minority on the bench.

Moreover, agreeing to Senator Feinstein’s deal would just reward her bad behavior.  It would show other senators from blue states that you just need to keep biding your time and dragging out the process.  Such is a winning formula for keeping the president from fulfilling his constitutional duty to nominate judges.

The Wall Street Journal editorial board calls it “a bad judges deal“:

Ms. Feinstein and the White House counsel’s office have been pen pals on this for some time. In a November letter to new White House counsel Pat Cipollone, Ms. Feinstein and Ms. Harris requested “that the White House work with us to reach an agreement on a consensus package of nominees.” The Democrats want to pick one name from the White House list, one from their own, and a third consensus nominee.

Why Mr. Cipollone or the President would agree to this or any other deal with these Senators is a mystery. The hope seems to be that a White House concession would somehow produce less resistance to Mr. Trump’s nominees. And this would be useful if the President gets the chance to replace, say, Justice Ruth Bader Ginsburg on the Supreme Court.

It’s hard to believe someone could think this is plausible. Ms. Harris is running for President and will oppose any Trump nominee to the High Court. Ms. Feinstein was once more reasonable, but she and Ms. Harris were two of the worst mudslingers on the Judiciary Committee that smeared Brett Kavanaugh.

A concession to them now on nominees would rightly be seen as political weakness. It would concede influence that neither Senator has earned and set a precedent for other Democrats who would demand similar consideration. The result would be nominees who aren’t nearly as qualified, or as originalist in their thinking, as Mr. Trump’s nominees have been.

Paul Mirengoff at Power LIne notes that a chance to transform the 9th Circuit is at stake:

What on earth is the administration thinking? Feinstein and Harris have no power to prevent the confirmation of Bumatay, Collins, and Lee. And the Ninth Circuit needs all three. Remember, this is hands down the most left-wing appeals court in America. It has been instrumental in blocking key Trump administration initiatives.

The Ninth Circuit needs to be transformed. It won’t be transformed by adding one conservative, one moderate and one leftist handpicked by Feinstein and Harris.

Trump has three qualified and quality nominees. That they are opposed by Feinstein and Harris is a feature, not a bug, of the merits of their confirmation. Renominate them now.

Don’t pass up this opportunity.

UPDATE 1-30-2019 10:30 p.m. Eastern

Trump heard the conservative media outcry, nominates three judges for 9th Circuit

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