Feinstein says no to Trump’s 9th Circuit picks

California's senior Democratic senator has objected to the White House's picks for three open seats on the 9th U.S. Circuit Court of Appeals, setting up what will likely be a contentious confirmation battle for the proposed nominees.

On Thursday, Sen. Dianne Feinstein, who sits as the ranking member of the Senate Judiciary Committee responsible for reviewing federal bench nominees, said the White House moved forward announcing nominations to federal appeals court seats traditionally reserved for California nominees without consulting her.

The White House released a statement late Wednesday night announcing President Donald Trump's intent to nominate Patrick J. Bumatay, Daniel P. Collins and Kenneth K. Lee, apparently upending a more than year-long negotiation process over the open bench seats.

"I repeatedly told the White House I wanted to reach an agreement on a package of 9th Circuit nominees, but last night the White House moved forward without consulting me, picking controversial candidates from its initial list and another individual with no judicial experience who had not previously been suggested," Feinstein said in a statement.

The senator said she met with White House Counsel Donald F. McGahn II in late June, telling him both she and her junior colleague, Democratic Sen. Kamala Harris, also a member of the judiciary committee, were "strongly opposed" to nominating Collins, a partner at Munger, Tolles & Olson LLP in Los Angeles.

However, in a letter she sent to McGahn last Friday, she expressed a willingness to compromise on Collins, if he was included in a consensus package.

Feinstein also said she had "problems" with Lee, a partner at Jenner & Block in Los Angeles, because he did not disclose to her bipartisan judicial selection committee what Feinstein characterized as "controversial writings on voting rights and affirmative action."

Both Collins and Lee, neither of whom responded to requests for comment Thursday, were included on a list of possible picks for 9th Circuit seats the White House sent to California's senators last summer, but Bumatay, an assistant U.S. attorney in the Southern District of California, is a new name.

Feinstein noted Thursday Bumatay, who could not be reached for comment Thursday, had not previously been suggested to her office as a possible nominee.

A spokeswoman for Harris, Lily Adams, said in an email Thursday night, "Instead of working with our office to identify consensus nominees for the 9th Circuit, the White House continues to try to pack the courts with partisan judges who will blindly support the president's agenda, instead of acting as an independent check on this administration."

What this means for the three men and their chances of confirmation is unclear. The White House has not formally nominated them. It has simply announced an intent to, a somewhat unusual move.

"I'm really at a loss to understand why they'd do that, because it's kind of embarrassing for a potential nominee for their name to be released before an actual nomination," Russell Wheeler, a visiting fellow at the Brookings Institution in Washington D.C. who studies federal judicial nominations, said in a phone interview Thursday.

This isn't the first early announcement, Wheeler noted. And intent to nominate doesn't necessarily mean a nomination is locked down.

In July, the White House prematurely announced nomination plans for Eric D. Miller, a partner at Perkins Coie LLP in Seattle the administration had tapped for a seat on the 9th Circuit. In the same press release, the White House shared its intentions to nominate Seattle attorneys Tessa M. Gorman and Kathleen M. O'Sullivan to U.S. District Court seats in Western Washington.

A week passed with no formal action. But on July 19, minutes after the surprise failure of President Donald Trump's Oregon nominee to the 9th Circuit, Ryan W. Bounds, to secure confirmation forced the president to withdraw his embattled nominee, the White House filed formal nomination papers for Miller.

Nomination papers for Gorman and O'Sullivan, who was unsuccessfully nominated to the District Court in 2016 by President Barack Obama, have yet to be filed.

What the Senate Judiciary Committee does with formal nominations for Bumatay, Collins or Lee will be decided by the body's chairman, Iowa Republican Sen. Chuck Grassley.

Feinstein's relationship with Grassley has been the talk of many nomination watchers. Reportedly close with her, Grassley has expressed privately a willingness to defer to Feinstein on California seats.

"I expect my blue slips to be honored as I was acting in good faith," Feinstein said Thursday, suggesting she does not appear likely to return paperwork that traditionally signifies approval of a president's nominees.

Grassley refused to advance Ryan Bounds' nomination for months, citing unreturned blue slips. He only moved forward with a committee hearing and vote when he announced he no longer believed Oregon's two Democratic senators were negotiating in good faith with the White House.

The relationship between Feinstein and Grassley may not be what it once was, though. The recent contentious confirmation battle over U.S. Supreme Court Justice Brett Kavanaugh has pitted the two committee leaders against each other.

And Grassley, for his part, showed no signs of backing down on his marathon effort to confirm federal judges to the bench.

"It's getting pretty obvious now, they're going to plow through this and get as many people on the court of appeals as possible" before the new Senate starts, Wheeler said.

In a tweet Grassley's account posted Thursday morning, he touted that his committee sent eight more names to the Senate floor, adding the Senate should stay in session until all 49 pending judicial nominations are confirmed.

That may be an unrealistic goal according to the committee chairman himself. Grassley told a conservative radio host this summer that he only expected to confirm judicial nominees announced by the White House before the end of August. The three 9th Circuit nominees will come to his committee long after that deadline.

While making great strides in appointing federal judges across the country, the Trump administration has struggled to make its mark on the 9th Circuit.

Just Wednesday, one year and nine months into the Trump administration, did the Senate confirm the president's second nomination to the 9th Circuit, Idaho attorney Ryan Nelson, who was installed on a 51-44 vote.

Mark J. Bennett's confirmation this summer to a Hawaii seat on the 9th Circuit appears to not quite be the victory moment conservatives hoped for on the West Coast's liberal federal appeals court. Bennett, a Republican who previously served as the state's attorney general, was confirmed on a 72-25 vote, with all opposition coming from Republicans who thought his stances on the Second Amendment and campaign contribution regulations were too moderate.

The Nelson and Bennett confirmations do little, though, to tip the ideological balance of the 9th Circuit, a longstanding aspirational goal for Federalist Society members.

Remaining 9th Circuit picks, Miller in Seattle and Magistrate Judge Bridget Shelton Bade's nomination to an Arizona seat, are still waiting for judiciary committee hearings.

Munger Tolles & Olson LLP partner Daniel Collins

The California seats now open were formerly held by the late liberal jurists Harry Pregerson and Stephen Reinhardt as well as the libertarian Ronald Reagan appointee Alex Kozinski, who was less than a reliable lock-step judicial conservative.

Filling the seats with committed textualists could significantly impact the 9th Circuit's jurisprudence, a reality not lost on the Feinstein camp, which had, until Wednesday, engaged in active negotiation with the White House on the seats.

In May, Feinstein and Harris urged the White House to nominate U.S. District Judges Lucy Koh and Andrew J. Guilford, and Boris Feldman, a securities litigator at Wilson Sonsini Goodrich & Rosati.

Koh was previously tapped for a 9th Circuit seat by President Barack Obama in 2016, but Senate Republicans allowed her nomination to expire without having a full vote.

White House lawyers rejected the offer, apparently upset Feinstein's proposed nominees did not include any names the administration suggested to her last summer.

Two sources familiar with negotiations over the seats told the Daily Journal in recent weeks White House attorneys offered through intermediaries several compromise slates including Koh to Feinstein during the summer.

A spokeswoman for Feinstein told the Daily Journal last week no such offers were made, but wrote to McGahn Friday saying she would support a package deal including Koh, Collins and Orange County Superior Court James Rogan, who had been under consideration by the White House as a possible nominee.

On Thursday, Feinstein reiterated no offers including Koh had ever been made to her.

The Los Angeles Times reported Thursday McGahn denied in a letter sent to Grassley that such an offer was made.

"We have made more attempts to consult, and devoted more time to that state than any other in the country," McGahn said in the letter, the Times reported.