WASHINGTON, DC – The Senate has confirmed two conservative, Justice Department lawyers to posts on a California-based appeals court that President Donald Trump has tagged as a liberal bastion.
The two nominees won seats on the San Francisco-based 9th U.S. Circuit Court of Appeals, which covers a wide swath of Western states from Alaska to Arizona, despite sharp opposition from their home-state senators. The 9th Circuit handles cases of high interest to the Trump administration, such as immigration and detention and famously rejected Trump's proposed travel ban on Muslim-majority countries. The Supreme Court later upheld the ban.
Trump has called the 9th Circuit a "big thorn in our side" and “a complete and total disaster.”
Lawrence VanDyke, a deputy assistant attorney general from Nevada, and Patrick Bumatay, a federal prosecutor from California, were approved in separate votes. VanDyke was confirmed, 51-44, Wednesday, while Bumatay was confirmed Tuesday, 53-40.
Nevada Democratic senators Jacky Rosen and Catherine Cortez Masto, along with Sen. Dianne Feinstein, D-Calif., opposed both nominees. Sen. Kamala Harris, D-Calif., voted against VanDyke but was absent for the vote on Bumatay. She has spoken out against his nomination.
In separate speeches on the Senate floor, Rosen and Cortez Masto said that despite serving four years as Nevada's solicitor general, VanDyke's qualifications are inadequate and his ties to Nevada minimal.
VanDyke, 47, served as solicitor general in Montana and assistant solicitor general in Texas before moving to Nevada in 2015.
Feinstein criticized both newly confirmed judges, saying both men had troubling records. Bumatay acknowledged working on the Trump administration's policy of separating families at the U.S.-Mexico border, Feinstein said, while VanDyke has taken “extreme positions” on a range of issues.
Trump's nomination of VanDyke "sets a dangerous precedent for the Senate and would allow future administrations to nominate virtual outsiders to communities across the country over senators’ objections,'' Cortez Masto said.
She and Rosen called VanDyke an extreme partisan and said he has a record of using cases to advance an ideological agenda. Liberal groups have criticized VanDyke as a zealot who opposes gun regulations and poses a threat to women and the LGBT community.
Democrats and other critics cited a letter from the American Bar Association rating VanDyke “not qualified” and calling him “arrogant, lazy, an ideologue and lacking in knowledge of the day-to-day practice including procedural rules.''
The Giffords Law Center, a gun safety group, decried VanDyke's “uniquely troublesome record" and said his "legally unsupported views on gun policy ... disqualify him for a life-tenured seat on the federal bench.''
The Alliance for Justice, a liberal advocacy group, said VanDyke has "repeatedly attacked the rights of women,'' including support for an Arizona anti-abortion law and opposition to contraceptive coverage mandated by the Affordable Care Act.
VanDyke also has expressed concerns about gay parenting and same-sex marriage.
Carrie Severino, policy director of the Judicial Crisis Network, a conservative advocacy group, said Trump is “in the midst of completely remaking the historically-unruly 9th Circuit,'' adding: “VanDyke will be yet another solid addition, bringing his intelligence, humility, and dedication to the rule of law.''
Severino, a classmate of VanDyke at Harvard Law School, said on Twitter that VanDyke was “another victim of left’s tiresome smear train and the ABA’s sham evaluation process. But thankfully the @SenateGOP called out the brazen ideological bias against him, and VanDyke’s sterling character, impressive record, and razor-sharp legal acumen won the day.''
Severino called Bumatay’s confirmation “yet another step toward restoring sanity" on the 9th Circuit.
“Bumatay has fearlessly prosecuted drug cartels and organized crime, and helped shape the response to our nation’s opioid crisis. He is also a committed originalist and textualist,'' she said.
Maine Sen. Susan Collins was the only Republican to vote against VanDyke. She supported Bumatay. Democrats unanimously opposed both men.
Conservatives blasted the ABA's negative rating of VanDyke, calling it just the latest example of the group's leftward tilt. "The ABA has lost its credibility as a neutral arbiter. It should be treated no differently than any other special interest group,'' said Sen. Mike Lee, R-Utah.
The VanDyke and Bumatay nominations continue a trend in which Trump has ignored opposition from home-state Democrats to nominate conservative lawyers to the bench. Presidents typically consult with home-state senators before announcing judicial appointments, a practice Trump has abandoned.
VanDyke served as a Nevada solicitor general for four years before joining the Justice Department's environment and natural resources division earlier this year. A Texas native, VanDyke graduated from Montana State University and ran unsuccessfully for the Montana Supreme Court in 2014. A member of the conservative Federalist Society, VanDyke supports Trump's efforts to expand oil and gas exploration on public lands.
Bumatay, 41, has served in a variety of positions at the Justice Department, most recently as assistant U.S. Attorney for the Southern District of California.