What's the Deal with Patrick Bumatay and the other California Nominees?

Last Wednesday, the White House announced the renomination of a batch of attorneys and judges to vacant judgeships on both California district courts and the Ninth Circuit Court of Appeals. Out of the 8 nominees in the bunch, 6 had previously been nominated to their positions in November 2018. They are:

Ninth Circuit:

1. Daniel P. Collins, a partner at Munger, Tolles & Olson
2. Kenneth K. Lee, a partner at Jenner & Block

Central District of California:

1. Stanley Blumenfeld, a Judge of the Los Angeles County Superior Court
2. Jeremy B. Rosen, a partner at Horvitz & Levy
3. Mark S. Scarsi, a partner at Milbank, Tweed, Hadley & McCloy

The history behind the other two nominees is... complicated, to say the least.

In the original fall announcement last year,  Assistant U.S. Attorney Patrick J. Bumatay was nominated to the Ninth Circuit along with Collins and Lee. But having been sent to the Senate so late in the lame duck, he didn’t receive a hearing (nor did any of the others) and his nomination expired in January.

The common wisdom would have expected Bumatay and the other California candidates to be sent to the Senate with the rest of the expired nominations soon after, but they and nominees from other blue states were absent from the large list submitted on January 23. Then, many conservative lawyers and politicos began to publicly communicate fears that new White House Counsel Pat Cipollone was negotiating with California’s senators, Dianne Feinstein and Kamala Harris, in order to produce a “compromise” batch of Ninth Circuit nominees. The original trio had vehement opposition from the senators, and some speculated that Cipollone wanted this to change.

A week later, the White House did renominate some candidates, alleviating conservatives’ fears of a deal to select more left-leaning jurists, but it slightly changed up the batch. Bumatay was given somewhat of a demotion, now being nominated to the Southern District of California, and in his stead at the court of appeals level, the administration tapped Kirkland & Ellis partner Daniel Bress.

Bress would ordinarily be a questionable choice, as while he is certainly qualified (he has clerkships with Judge J. Harvie Wilkinson and Justice Antonin Scalia to his name), he doesn’t practice in California, instead working in Washington, D.C. However, his not insubstantial connection to the state is that he was born and raised there in the town of Gilroy. This is similar to the selection of Allison Jones Rushing to fill a North Carolina vacancy on the Fourth Circuit despite her working in D.C.

Now, some, including The Wall Street Journal Editorial Board, are arguing that nominating Bress instead of Bumatay is a form of surrender to Sens. Feinstein and Harris, as he was reportedly the most opposed out of the original three. I would contest that assertion.

To begin with, blue slips when they come to circuit court nominees are, at this point, not worth the paper they are printed on. The Senate confirmed judges with opposition from home-state senators last year, and there is no going back to an era of blue slips. The proverbial Rubicon has been crossed, so why would the White House want to cede a judgeship on a court that is subject most to the president’s ire? The reality is that they don’t. 

Second, Bress is arguably more qualified than Bumatay, since he’s clerked for a Supreme Court justice and has substantial appellate experience, compared to Bumatay being a line federal prosecutor. (I’m not saying that he is unqualified, as Judge Jay Richardson of the Fourth Circuit has a similar profile to him, having worked as an Assistant U.S. Attorney in South Carolina before joining the bench.) In fact, Bress reminds me of another Californian by the name of Anthony Kennedy.

I’m not discounting Patrick Bumatay’s credentials and in fact strongly believe that he’s qualified for the appellate bench. But calling this move a surrender is just not intellectually honest.

So if the White House did not negotiate with the senators, why was Bumatay's nomination to the court of appeals pulled? Here are a few possible ideas:

1. Daniel Bress was originally intended to be nominated to the seat that Patrick Bumatay got, but issues with paperwork prevented that from happening late last year. Bress has been reported to be on the White House's Ninth Circuit list for some time now, so its plausible that issues with something such as a background check put a hitch in his immediate nomination. But that doesn't readily explain why Bumatay was nominated, only to see his nomination fall to the wayside. Perhaps this was the White House's manner of "debuting" his nomination and advertising his candidacy for future judgeships, which brings me to my second point.
2. The White House apparently did not provide the California senators with Patrick Bumatay's name before nominating him to the Ninth Circuit. While this might seem like a minor oversight in the age without blue slips, previous Judiciary Committee Chairman Chuck Grassley only moved forward with controversial nominations if the White House had some sort of "meaningful" consultation with home-state senators, regardless of whether or not those senators supported the nomination. In an October statement, Feinstein remarked that Bumatay "had not previously been suggested" to her, showing that there was no meaningful consultation on his particular nomination by any fair standard (I'm taking Feinstein at her word when she denies being presented with Bumatay as an option). I have serious doubts that new committee Chairman Graham will be any more likely to move forward with nominations who have no consultation whatsoever, if only to encourage the White House to go through the motions. So, Bumatay's nomination might have been dead even if the other two moved forward. Fortunately for him, if he does get renominated to the court later on the consultation track record would already have been established.
3. Bumatay fell out of favor with the White House after Attorney General Jeff Sessions was fired. Although his official title is "Assistant U.S. Attorney for the Southern District of California" (the area surrounding San Diego), Patrick Bumatay is currently detailed to the Office of the Attorney General, serving as a counselor for issues including drug trafficking and organized crime. I do not know how Bumatay got his nomination to the Ninth Circuit, but it's plausible that Jeff Sessions recommended his consideration to Don McGahn, especially as he did not appear on the initial public list. His announcement came right as Sessions was forced out at the Justice Department, and it's quite possible that other interests in the administration soured on putting a Sessions protégé on the Ninth Circuit.

At the end of the day, I expect Patrick Bumatay to be nominated to a future Ninth Circuit vacancy, if one occurs (3 George W. Bush appointees from California are currently eligible for senior status). It is just a matter of timing. Bumatay's credentials and diversity (he is of Filipino origin and is gay) would make him a formidable future Supreme Court candidate, and for those reasons it would be foolish for the administration to not eventually elevate him to the court of appeals.