On Tuesday night, The Wall Street Journal's editorial board instigated a firestorm within conservative media when it reported that President Trump's new White House Counsel, Pat Cipollone, was negotiating with leftist California Democratic Senators Dianne Feinstein and Kamala Harris on a new slate of judicial nominees for the U.S. Court of Appeals for the Ninth Circuit. The Journal opined that the White House seemed to hope that such a
concilitatory capitulatory gesture might "somehow produce less resistance to Mr. Trump’s nominees." Erick Erickson quickly sounded the alarm at The Resurgent, excoriating the brewing cave as a "terrible, terrible deal."
Notably, the Journal also reported that the specific target of the California senators' ire is Patrick Bumatay, an assistant U.S. attorney with a highly acclaimed conservative reputation — who also happens to be 40 years old, openly gay, and Filipino-American.
On Wednesday, less than a day after the Journal's viral editorial, the White House announced its new slate of judicial nominees. Three of the nominees are for the Ninth Circuit — and Bumatay is not one of them. Instead, Bumatay — likely the most ideologically solid and most committed of all the California nominees under consideration to the original public meaning of the U.S. Constitution — was tapped for a district court judgeship on the U.S. District Court for the Southern District of California.
Somewhere in Washington, D.C., Miguel Estrada is surely shaking his head.
To be clear, I have nothing personally against the White House's three announced nominees for the Ninth Circuit: Daniel Bress, Daniel Collins, and Kenneth Lee. But there is something here that really does not sit right. Collins clerked for infamously leftist Jimmy Carter judicial nominee Dorothy Nelson on the Ninth Circuit before he clerked on the Suprme Court for the late Justice Antonin Scalia — who, despite his deserved reputation as a conservative jurisprudential icon, was known to occasionally (perhaps frequently) hire an annual left-leaning clerk to serve as his chambers' "counter-clerk." Collins also graduated from Harvard College in 1985, which makes him approximately 15-16 years older than Bumatay. Bress and Lee are younger, but neither nominee's resume exactly jumps off the page with a commitment to furthering the conservative legal cause in the public arena.
In short, I think Whelan is misguided to suggest that "there is zero reason to view [this judicial slate] as some sort of concession to Senator Feinstein or Senator Harris." No one outside the White House Counsel's Office and perhaps the two California senators' offices can claim to know for sure, but surely there is some reason to view Bumatay's exclusion from the Ninth Circuit slate as a weak-kneed caving to the California senators' threat of a "blue slip" veto.
And yet, ironically, The Sacramento Bee reports that new Senate Judiciary Committee Chairman Lindsey Graham has indicated his stance that, "he [will] continue to honor the so-called 'blue slip' tradition when it comes to lower, district court judges, but would not apply that rule to circuit court judges." Put another way, the White House's new compromise slate of Ninth Circuit nominees makes up-and-coming conservative star Bumatay uniquely vulnerable to a unilateral veto from either Dianne Feinstein or Kamala Harris.
Let us then say what we really should not need to say: Under no circumstances whatsoever should this White House — which has better mastered the art of judicial nominations than any Republican White House in the Federalist Society era, arguably has not done anything as consistently well as it has handled judicial nominations, and which stands little chance of leading the passage of any notable legislation with a newly Democratic-controlled House of Representatives — be negotiating, especially in a post-Brett Kavanaugh fiasco world, with hostile Democratic senators. And this is doubly true when the senator with whom Pat Cipollone's office is negotiating, behind closed doors, is perhaps the leading contender for the Democratic presidential nomination in 2020.
Again, conservatives across the country ought to be able to hear Miguel Estrada howling in agony. Unless Lindsey Graham further alters prevailing Senate Judiciary Committee practice with respect to "blue slips," Pat Cipollone and the White House Counsel's Office have just given Kamala Harris a golden opportunity to single-handedly nuke the aspiring judicial career of a 40-year-old, openly gay, Filipino-American — who happens to be, by all accounts, a rock-ribbed jurisprudential originalist.
In what world is this a good play for conservatives? In what world is this what the White House ought to be doing?
With Democrats controlling the House but Republicans retaining control of the Senate, now is the worst possible time for the White House to make capitulatory overtures on judicial nominations. One can be as staunchly opposed to judicial supremacy — and as generally opposed to judicial power run amok — as I am while still firmly believing that a commitment to selecting solid, young conservative judges is still an absolutely necessary item for the White House to prioritze. Indeed, this is even truer in our Orwellian judicial supremacist status quo, wherein the idiosyncratic diktats of judges are unfortunately treated by the political and legal clerisy as promulgating broader political principles for the body politic. I would know — I recently clerked on the U.S. Court of Appeals for the Fifth Circuit, and I saw first-hand how much jurisprudentially and ideologically solid judges can affect three-judge panel and en banc votes alike.
Whether we operate in a system of judicial supremacy or the true tripartite separation of powers system the Framers devised, then, the quality of judicial nominations matters — a lot. Conservatives ought to settle for nothing less than consistently stellar judicial nominees from this White House. And given what has just happened to Patrick Bumatay, we ought to be vigilant and on guard.