Filipino American picked for 9th Circuit Court despite opposition by California senators, civil rights advocates

ANALYSIS

SCREEN CAPTURE / C-SPAN

Patrick Bumatay refused to answer questions about some of his work for the Trump administration during his testimony in front the Senate Judiciary Committee.

I should be celebrating today's appointment of a Filipino American to the Ninth Circuit Court of Appeals.  As an openly gay and a Filipino American, Patrick Bumatay brings more diversity to Donald Trump’s growing legacy of mostly straight, white judicial appointees. But, in Bumatay's case, instead of tossing confetti, I'm wringing my hands.

Bumatay, 41, was approved to the lifetime position by the Senate, 53-40, despite being opposed by both of California's senators, Dianne Feinstein and Kamala Harris.

Back in the good old days when the GOP didn't put party before country and the Congress operated in a bipartisan manner, a home-state Senator's opposition would kill any judicial appointment. But the Republican long-range strategy of taking over the judicial system takes precedence over qualifications.

Under Trump, however, the GOP-dominated Senate has employed a double standard and given a hearing to 17 circuit court nominees who were so extreme they could not earn the support of one or both home-state senatorsHarris made her opposition perfectly clear when Bumatay was first renominated after two earlier attempts failed.

“Once again, the president has put forth a highly flawed nominee to the Ninth Circuit, without the support of California’s senators. I first objected to Mr. Bumatay after his initial nomination to the Ninth Circuit a year ago and again raised concerns about his qualifications and fitness when he was nominated for the district court.

“In once again nominating Mr. Bumatay to the Ninth Circuit, it is clear the White House is doing so to advance a political agenda and remake the federal judiciary. Make no mistake, Senator Dianne Feinstein and I identified qualified, consensus Ninth Circuit nominees we could have supported – and whom the White House supported for the district court.

“A nominee for a lifetime appointment to the federal bench must demonstrate exceptional skill, professionalism, and respect for the principle of equal justice under law. Mr. Bumatay does not meet this standard. Mr. Bumatay has a troubling prosecutorial record, lacks the requisite experience, and has drawn criticism from members of California’s legal community, across party lines. It is clear that he lacks the judgment and qualifications to serve on the Ninth Circuit."

Sen. Feinstein also expressed strong objections to Bumatay's nomination because of his reluctance to answer her questions.

"Mr. Bumatay has only argued twice before any appellate court, state or federal. Furthermore, he identified only 10 appellate briefs, motions, or other filings that he has submitted in his legal career.

"Notably, three of these filings occurred after the White House had interviewed Mr. Bumatay in connection with his present nomination to the Ninth Circuit.

"Apart from gaps in his experience, I also have concerns about the matters that Mr. Bumatay worked on while detailed here in Washington, D.C. in the Justice Department.

"In response to written questions, Mr. Bumatay acknowledged working on the administration’s policy of separating families at the border.

"However, he refused to answer whether he worked on a number of other important matters. Simply refused to answer.

"Those include the addition of a citizenship question on the 2020 Census, the Justice Department’s reversal of a policy protecting transgender individuals from discrimination under Title VII and the appointment of a special counsel to investigate Russian interference in the 2016 election."

Bumatay is an assistant United States attorney in the U.S. Attorney’s Office for the Southern District of California and has been part of an effort to tackle organized crime and the opioid epidemic, according to the White House.

Prior to joining the Justice Department, Bumatay clerked for conservative Judge Timothy Tymkovich, a George W. Bush appointee to the 10th U.S. Circuit Court of Appeals.

Bumatay earned his bachelor's at Yale University and his law degree at Harvard University, according to the White House. He is a member of the National Filipino American Lawyers Association (NFALA), the National Asian Pacific American Bar Association, the Tom Homann LGBT Law Association and the Federal Bar Association.

"This nomination is part and parcel of a disgraceful effort by President Trump to pack the Ninth Circuit – which has ruled against him at least 29 times – with judges who he believes will rubberstamp his radical agenda," said Vanita Gupta, President and CEO of the Leadership Conference on Civil and Human Rights.

Bumatay received a unanimous “Qualified” rating by the panel of the American Bar Association that reviews judicial nominees.

Perhaps, it is not surprising that the Filipino American barrister has also received the unequivocal endorsement of the National Filipino American Lawyers, despite the organization's alleged advocacy for "justice, civil rights and equal opportunity ..."

The NFAL endorsement highlights the diversity of the AAPI community and the mistake of thinking the AAPI community as a single monolitic demographic. Bumatay's record raises serious questions about his qualifications and appears to run counter to those goals.

• Worked for two years as a political operative in the Trump Justice Department, advancing numerous right-wing policies and initiatives. 
• He was a core member of the nomination teams that worked to jam President Trump’s two arch-conservative Supreme Court nominees with anti-civil rights records, Brett Kavanaugh and Neil Gorsuch, through the confirmation process.
• Played a central role in one of the most troubling civil rights rollbacks of the Trump Justice Department – a policy that abandoned the DOJ’s “Smart on Crime” initiative and reinstated a discredited practice of draconian charging and sentencing. Bumatay’s efforts to reverse this vital policy will perpetuate mass incarceration of poor, Black, and Brown people.
• Bumatay also worked on a widely condemned “zero tolerance” policy that resulted in cruel and inhumane treatment of undocumented immigrants. This policy led to the inhumane separation of thousands of children from their families.
• As a student at Yale, he opposed the university's diversity programs. "How can minorities at Yale compete on an equal level with other Yalensians when they are from the beginning treated as inferior to everyone else?" wrote Bumatay in an oped, not seeing the problem was not with the program or its goals but with the people biased against the participants.

It is surprising Bumatay was able to get enough votes to win the nomination to the 9th Circuit. His past memberships in DOJ Pride and Log Cabin Republicans are troubling to the more conservative Republicans afraid of those groups' efforts to promote equal treatment and protections for the LGBTQ community. 

No conservative First Amendment advocacy group or conservative judicial advocacy group endorsed Bumatay. Yet, over 20 conservative groups and individuals have signed a letter to members of the US Senate urging them to vote “no” to Bumatay’s appointment.

But when the time came to vote, Republican senators' fear of Trump and desire to put in place conservative justices to guide this country's rulings for decades to come was stronger than their radical conservative moral principles.

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