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How dare Trump not act in good faith on my preferred 9th Circuit nominee

How dare Trump not act in good faith on my preferred 9th Circuit nominee


Gee, I wonder why the White House might be disinclined to consult on judicial appointments with Dianne Feinstein? After the demonstration of “good faith” from Senate Democrats on the Judiciary Committee over the last month, it’s a marvel that Feinstein still expected to have any influence at all on appointments, especially to the Ninth Circuit. Last night, the White House released three new nominations, none of whom were on Feinstein’s list:

President Trump has nominated three California attorneys to the Ninth U.S. Circuit Court of Appeals in San Francisco, including a San Diego federal prosecutor who could become the court’s first openly gay judge.

The White House said Patrick Bumatay is a member of the Tom Homann LGBT Law Association, which describes itself as an organization where gay, lesbian, bisexual and transgender lawyers in San Diego “network, build friendships and develop their careers.” …

Trump’s two other Ninth Circuit nominees announced late Wednesday by the White House are Daniel Collins, a Los Angeles attorney and former federal prosecutor who also served in Bush’s Justice Department, and Kenneth Lee, a Los Angeles lawyer who worked in the White House Counsel’s office in the Bush administration. …

The committee’s senior Democrat, Sen. Dianne Feinstein of California, had tried to negotiate with the Trump administration on the three California vacancies. She said Thursday she thought she had reached an agreement to approve two Trump appointees in exchange for the inclusion of Lucy Koh, a federal judge in San Jose who was previously nominated to the Ninth Circuit by Obama.

Feinstein griped immediately that Donald Trump had ignored her professions of cooperation, and threatened to use a “blue slip” to block confirmation of the three appointees (via Twitchy):

“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.

“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.”

Ahem. Feinstein’s insistence on her “good faith” ignores her recent track record on Brett Kavanaugh. To recap, Feinstein failed to notify the committee chair of Christine Blasey Ford’s accusation for weeks, even while Ford’s attorneys arranged a polygraph and remained in contact with her office. She never notified Kavanaugh of the accusation — not during a private interview, not during a closed hearing, not during the public hearing, and not even in the post-hearing questionnaire. Someone from either her office or Rep. Anna Eshoo’s office leaked it out to the press instead, turning an unsubstantiated and vague allegation into a McCarthyist circus in which Feinstein and her colleagues demanded that Kavanaugh prove himself innocent.

Who in their right mind would take advice from Feinstein on judicial appointments after that? And who in their right mind would expect cooperation after having authored that debacle?

As for the blue slip, Feinstein has to be joking. Judiciary chair Chuck Grassley made it clear last year that those are a courtesy, not a filibuster proxy:

But a few years ago, Democrats abolished the filibuster for nominees to the lower courts. They argued that a minority of senators should not be allowed to block nominees who had majority support. Our colleague, the Senator from Oregon, said:

“‘Advice and consent’ was never envisioned as a check that involved a minority of the Senate being able to block a presidential [nomination].”

Well, now that Senator is withholding his blue slip for a nominee to the Ninth Circuit. If he didn’t believe 41 senators should be able to block a nominee, why should a single senator have that right?

The Democrats seriously regret that they abolished the filibuster, as I warned them they would. But they can’t expect to use the blue-slip courtesy in its place. That’s not what the blue slip is meant for.

On the other hand, some have argued that the blue-slip courtesy has no place in modern judicial confirmations. The L.A. Times recently suggested getting rid of the blue slip, as did the New York Times several years ago.

Even our Committee’s Ranking Member, Senator Feinstein, once advocated abolishing the blue slip. I disagree that we should abolish the blue slip.

The blue slip serves the important purpose of encouraging consultation between the White House and the Senate. The White House has an obligation to engage in good-faith consultation with home-state senators. I won’t allow the White House to just steamroll home-state senators. But, as I’ve said all along, I won’t allow the blue slip process to be abused.

I won’t allow senators to prevent a Committee hearing for political or ideological reasons. Using the blue slip for these purposes is not consistent with historical practice.

After having watched the festival of bad-faith attacks on Kavanaugh over the last few weeks, I’d bet that Grassley is less inclined than ever to indulge blue-slip delay attempts. Senate Democrats, and especially Dianne Feinstein, burned off any good faith they might have received in their McCarthyist orgy. Feinstein and her fellow Democrats have reaped the Kavanaughncenquences they sowed.





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