Feinstein signals acceptance of possible 9th Circuit deal including Koh, Rogan

California Sen. Dianne Feinstein is willing to support a consensus slate of nominees to the 9th U.S. Circuit Court of Appeals, including U.S. District Judge Lucy H. Koh of San Jose and Orange County Superior Court Judge James E. Rogan, she wrote in a letter to the White House Friday.

Her letter also mentioned Daniel P. Collins of Munger, Tolles & Olson LLP as a possible third nominee.

In the letter to White House Counsel Donald F. McGahn, Feinstein said she would be willing to negotiate a compromise package for the three open seats on the court usually designated for California attorneys.

Koh was previously tapped by President Barack Obama to a seat on the 9th Circuit in 2016, but her nomination expired a year later when Senate Republicans refused to take a final vote on the nomination. Rogan, who has served as a superior court judge since 2006, was a Republican member Congress from 1997 to 2001.

Two sources familiar with internal negotiations, one briefed by a member of the Office of Legal Policy and by a member of the White House Counsel's Office, said the administration had made offers involving Koh at least twice in the last four months.

Feinstein's office denies such offers were made.

One of the sources, who was not authorized to speak about the negotiations publicly, said the offer had been made indirectly through intermediaries after former associate White House Counsel Robert Luther III floated the idea to private individuals lobbying for candidates.

McGahn had not approved such an offer, the source said.

Luther, who oversaw the selection of 9th Circuit nominees, has since left his post in the White House Counsel's office. He could not be reached for comment Friday.

Another source said the offer was made by McGahn to Jennifer Duck, Feinstein's chief of staff for judicial nominations, but acknowledged not having direct information of such a communication.

On Friday, Ashley Schapitl, press secretary to Feinstein, told the Daily Journal no such offers were presented to the senator's staff.

"[T]here have been no offers from the White House, officially or otherwise, involving Lucy Koh," she said in an email. "Your sources are pushing White House disinformation."

The White House did not respond to a request for comment by press time Friday.

Koh

But Feinstein's office, prompted by a Daily Journal media inquiry about what it had learned, wrote to McGahn saying that if the Koh-Rogan offer was true, she would be willing to negotiate.

"I remain hopeful that we can work together to come to consensus on a package of three nominees," Feinstein wrote. "As such, I am happy to agree to Lucy Koh from my list, and James Rogan from the White House list and work with you on the third nominee -- whether it be Daniel Collins or another nominee from one of our two lists."

Collins, a Los Angeles partner at Munger Tolles, has long been a White House favorite for nomination.

The development comes as the latest saga in a negotiation process over the 9th Circuit seats lasting more than a year.

When President Donald J. Trump took office last January, only one seat -- formerly held by the late Judge Harry Pregerson -- was open for him to fill.

In July 2017, the White House sent a list of five suitable names for filling the seat, including Collins and Rogan.

Also on the list were Washington, D.C.-based Kirkland & Ellis LLP partner Daniel A. Bress, Los Angeles-based Jenner & Block partner Kenneth K. Lee and Burbank-based Horvitz & Levy partner Jeremy B. Rosen.

Bipartisan vetting committees for Feinstein and Sen. Kamala Harris, the other California Democrat who, along with Feinstein, sits on the Senate Judiciary Committee, interviewed the candidates in the following months, as well as other attorneys and judges the senators thought the White House might find palatable.

But by March 2018, Judge Alex Kozinski had resigned amid accusations of sexual harassment and Judge Stephen Reinhardt had died, increasing the number of open seats on the California 9th Circuit bench to three.

The development made the negotiations over the open seats all the more important.

Feinstein and Harris sent three names to the White House in May recommended by their committees: Koh, U.S. District Judge Andrew J. Guilford and Boris Feldman, a Palo Alto-based partner at Wilson Sonsini Goodrich & Rosati.

The White House rejected that proposal, Feinstein said in her Friday letter to McGahn.

What comes next remains to be seen.

McGahn is expected to leave the White House this fall. The successful confirmation of D.C. Circuit Judge Brett Kavanaugh to the U.S. Supreme Court was supposed to be his final achievement.