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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Democratic senators will oppose Trump's Asian American judicial picks, and that's OK

ROLL CALL

California Senators Dianne Feinstein and Kamala Harris vow to oppose the nominations of Patrick Bumatay,
 lower left, and Kenneth Kiyul Lee, lower right, to the Ninth Circuit Court of Appeals

A POLITICAL HAND GRENADE was lobbed by Donald Trump at the Ninth Circuit Court of Appeals placing Senators Dianne Feinstein and Kamala Harris in tough spot.

Trump nominated five appeals court judicial nominees are Joseph F. Bianco and Michael H. Park for the 2nd Circuit Court of Appeals; Patrick J. Bumatay, Kenneth Kiyul Lee and Daniel P. Collins for the 9th Circuit Court of Appeals.

All five were all recommended by the ultra-conservative Federalist Society, which approves candidates based on their adherence to conservative values. The two Trump newest picks for the U.S. Supreme Court, Neil Gorsuch and Brett Kavanaugh were on the list of candidates approved by and are members of the Federalist Society.

So, even though Park, Bumatay and Lee are Asian Americans, their nominations are problematic and viewed as Trump's attempt an end-round against Feinstein's and Harris' expected opposition.

In nominating this latest wave of would-be jurists, Trump continues his mission to remake the federal judgeships to reflect his radical agenda.

The nominations for the 9th Circuit, in particular, were seen as a slap at Senators Diane Feinstein and Kamala Harris, both members of the Senate Judiciary Committee and outspoken to their opposition to the nomination of Kavanaugh.

Traditionally, the circuit court judges are approved by the home state senators prior to their nominations but negotiations between the senators and the White House couldn't come to an agreement. The California senators vowed to oppose Trump's nominees even though their opposition might appear to divide the Asian American and LGBTQ communities, which have largely thrown their support to the senators.

Bumatay, if appointed to the bench, would  become the second openly gay jurist on a circuit court of appeals but the first in the 9th circuit.

Bumatay, a Filipino American, is an Assistant United States Attorney in the U.S. Attorney’s Office for the Southern District of California, where he is a member of the Organized Crime and Drug Enforcement Task Forces Section. He is currently detailed to the Office of the Attorney General Jeff Sessions, where he serves as advisor to Sessions on the national opioid crisis and transnational organized crime.

Bumatay has also served in other positions in the DOJ and graduating fromfrom Yale University and his earning his J.D. from Harvard Law School, he clerked for several judges.

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. Bumatay is also a member of the Federalist Society.

Lee is a partner in the Los Angeles office of Jenner & Block LLP, where his practice focuses on appellate litigation and internal investigations, and where he serves on the firm’s Diversity & Inclusion Committee. Lee provides pro bono, or free, legal representation to indigent and incarcerated clients, according to his bio.

Lee also once served as Associate Counsel to President George W. Bush.

After law school, Lee clerked for Judge Emilio M. Garza of the U.S. Court of Appeals for the 5th Circuit. Lee earned his A.B. from Cornell University, summa cum laude,and his J.D., magna cum laude, from Harvard Law School. The Federalist Society likes him for his position on the Affordable Care Act.

Nominated for the 2nd Circuit Court of Appeals, Park is a partner in the New York City office of Consovoy McCarthy Park PLLC where he focuses on securities, criminal, commercial, administrative, and constitutional law, The White House said. Park served as an Attorney-Adviser in the U.S. Department of Justice, Office of Legal Counsel, where he advised the White House and other Executive Branch officials on a variety of complex matters, according to his bio.

Park earned his B.A. from Princeton University and his J.D. from Yale Law School, after which he clerked for Supreme Court Justice Samuel A. Alito.

He’s an adjunct professor at the Antonin Scalia Law School at George Mason University, a member of the Board of Trustees of the Supreme Court Historical Society, the Board of Directors of Operation Exodus Inner City, and the Asian American Bar Association of New York, which listed him one of the Best Lawyers Under 40’ in 2013.

Upon hearing about Trump's list of judges, Feinstein issued a sharp press statement:

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.

I met with Don McGahn (Trump's White House counsel) on June 27 to discuss the vacancies and explained that Senator Harris and I strongly opposed Daniel Collins. I also told him Kenneth Lee had problems because he failed to disclose to our judicial selection committees controversial writings on voting rights and affirmative action.

Last week, a reporter contacted my office stating that multiple sources close to the White House said I had rejected an offer that included Lucy Koh, James Rogan and Daniel Collins. This was false; no offer had been made or rejected—either formally or informally. In fact, as soon as I learned from the reporter about this alleged package I immediately wrote to Don McGahn saying I would accept this White House proposal of Lucy Koh, James Rogan and a third nominee from the White House’s list. There was no response to my letter.

The decision to move forward with these nominees without consultation or responding to my acceptance of the White House offer reflects President Trump’s desire to remake the court. I expect my blue slips to be honored as I was acting in good faith.

The “blue slip” refers to a gentleman’s agreement, not a hard rule, that allows a U.S. senator to reject judicial nominees for their home state by refusing to return a positive blue slip to the Senate Judiciary Committee chairman.

If the Republicans on the Judicial Committee ignore Feinstein's objections, they could also see their "blue slips" ignored when they are in the minority.

The 9th Circuit Court is the largest in the nation with 29 judges. Largely seen as a liberal court, it has rejected or stayed several of Trump's attempts to make his executive orders into law, including the Muslim ban, the end of DACA and the withdrawal of federal funds from so-called sanctuary cities.

“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,” Lily Adams, Harris’ communications director, said in a statement.

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9th circuit court gives strong argument against Trump's newest travel ban

From left: Judges William Canby, Michelle T. Ferdinand and Richard R. Clifton of the 9th Circuit Court of appeals issued the latest judicial opinions of Donald Trump's travel ban.

THE NINTH U.S. Circuit Court of Appeals ruled Friday, (Dec. 22) that the third attempt of Donald Trump to legalize his travel ban violates federal law.

However, the three-judge panel wrote that the ban's "indefinite entry suspensions constitute nationality discrimination in the issuance of immigrant visas." By focusing on "nationality," the judges added a new argument against Trumps's executive order described in the lower courts as a Muslim ban.

Apparently, to override the appearance of a Muslim-ban, last September, Trump's lawyers added North Korea and Venezuela to the list of targeted countries that also include Iran, Chad, Libya, Syria, Somalia and Yemen.

The San Francisco-based court's strong critique of Trump's executive also said that Trump may have exceeded his authority.

However, the decision rendered just before the Christmas weekend will have no immediate effect because of a temporary ruling the U.S. Supreme Court issued earlier this month allowing the government to fully implement the ban as it appeals a pair of injunctions issued against the policy.

“Discrimination has no place in our immigration system, and the Ninth Circuit’s decision today reminds us of this,” said Gadeir Abbas, Senior Litigation Attorney for the Council on American-Islamic Relations.  “This decision is just the latest example of a federal court taking bold action against the Trump administration’s bigotry and lawlessness.”

The decision by the three judges was on a case brought by the state of Hawaii that was presided over by federal Judge Derrick Watson, a Hawaiian/American, and argued by the  state's Attorney General, Doug Chin.

The other appeal comes against an October ruling in Maryland's 4th District Court issued by Judge Theodore D. Chuang. In that case the ACLU's  arguments strongly depended on the apparent religious restriction based on Trump's comments during and after his 2016 campaign. 

Both cases are expected to land in the laps of the conservative-leaning Supreme Court.

The Ninth's panel ruled that Trump's ban does not adequately explain why people from certain countries are a danger: "The Proclamation makes no finding that nationality alone renders entry of this broad class of individuals a heightened security risk or that current screening processes are inadequate."

The panel also appeared to be deeply disturbed by the claims that the government lawyers had made in defending the latest order that the executive order overrides any court's decision, including the U.S. Supreme Court.

"The Executive," the panel remarked, "cannot without assent of Congress supplant its statutory scheme [for immigration] with one stroke of a presidential pen."

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Supreme Court dismisses one case vs Trump travel ban

THE U.S. SUPREME COURT, with a conservative majority, is going to haunt America's march into the 21st century for decades to come.

As expected the High Court dismissed one of the challenges to Donald Trump's attempts to impose a Muslim ban. The justices ruled that the complaint was moot because the administration had replaced the travel ban with a new version that included two non-Muslim countries.

On Sept. 24, the Trump administration replaced the temporary travel ban on six predominantly Muslim countries with new restrictions that included the countries of North Korea and Venezuela.

The decision basically dismisses the ruling issued by the U.S. Court of Appeals for the 4th Circuit of Maryland. The complaint that came out of Hawaii via the 9th Circuit is still pending but it is expected SCOTUS will issue a similar ruling.

Hawaii asked a federal judge in Honolulu Tuesday (Oct. 10) for permission to challenge the newest version of the Trump's travel ban, scheduled to go into effect Oct. 17. 

Hawaii said the latest ban, like the earlier versions, is unconstitutional. It will also harm the state’s tourism industry, prevent the University of Hawaii from recruiting qualified individuals and undermine its refugee resettlement program.

The latest attempt to restrict travel to the U.S. issued Sept. 24, limits or bans entry into the U.S. from eight countries: Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea and Venezuela. It supersedes a ban that had affected six mostly Muslim countries and is indefinite, while the previous travel ban was for only 90 days.

The Island State is challenging the president’s “continuing efforts to impose a sweeping policy banning the entry of refugees and nationals of Muslim-majority countries,” according to the proposed amended complaint, which seeks to block the executive order from taking effect.

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