President Donald Trump is not only shaping the future of the Supreme Court of the United States, but he is making his mark on circuit courts, too.
After tense negotiations and delays, the White House is moving forward to fill three vacancies on the 9th U.S. Circuit Court of Appeals, despite objections from both of the state's senators, Democrats Dianne Feinstein and Kamala Harris. The administration announced on Wednesday night it will nominate litigators Daniel Collins and Kenneth Lee and Assistant United States Attorney Patrick Bumatay. Neither of these nominations were approved by Feinstein and Harris.
The 9th U.S. Circuit Court of Appeals is known as the largest and busiest federal appeals court in the nation. It also has a liberal reputation. Since Trump has been elected, the 9th has become something of a nemesis for Trump. Notably, in 2017, the court temporarily blocked Trump's effort to withhold federal money from California's sanctuary cities.
The announcement came as a surprise to Feinstein, as she explained in a statement to the press:
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 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.
Lily Adams, Harris’ communications director, corroborated Feinstein’s statement to The Sacramento Bee.
“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,” Adams said in a statement.
Historically, the administration works with senators and takes their recommendations. The White House claims Feinstein and Harris were the uncooperative ones, according to a report by BuzzFeed News:
In a letter White House counsel Don McGahn sent to Grassley the same day the latest group of nominees were announced, which was obtained by BuzzFeed News, McGahn said he met with Feinstein multiple times and attempted to engage her staff, but the White House “received no meaningful feedback on the White House’s proposed nominees and made no constructive progress with the Senators on Circuit Court vacancies.” He said Harris’s office “refused to engage with the White House at any level, whatsoever on the issue.”
“Given the White House’s extensive attempts at consultation, the President is exercising his prerogative to nominate his own, well-qualified nominees to the US Court of Appeals for the Ninth Circuit,” McGahn wrote.