November 21, 2019

Feinstein Highlights Concerns with Ninth Circuit Nominees

Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today highlighted concerns with Patrick Bumatay and Lawrence VanDyke, President Trump’s nominees to the United States Court of Appeals for the Ninth Circuit.

            Video of the remarks is available here.

            “I believe Mr. Bumatay does not have the appellate experience required of those appointed to courts of appeals.

            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.

            Mr. Bumatay’s nomination represents the fourth time this committee is moving to confirm a nominee to a California Ninth Circuit seat over the objections of Senator Harris and myself.

            I also want to address the nomination of Lawrence VanDyke to a Nevada seat on the Ninth Circuit.

            There has been a great deal of attention on the ABA’s decision to give Mr. VanDyke a rating of “Not Qualified.”

            It’s rare for a nominee to receive a “Not Qualified” rating. In fact, 97 percent – and this is an interesting statistic – of President Trump’s judicial nominees who have been rated by the ABA have received either a “Qualified” or a “Well-Qualified” rating. Three percent have not. This remains a very high percentage of qualified endorsements.

            At Mr. VanDyke’s hearing, members of this committee attacked the ABA –

Senator Whitehouse has set some of that straight – and the evaluator who led Mr. VanDyke’s rating process, accusing her of bias against Mr. VanDyke.

            But, in fact, the evaluator had recommended a “Qualified” rating, I should point out. The members of the ABA’s Standing Committee disagreed with that “Qualified” recommendation and rated him “Not Qualified.”

            Each member of this committee is free to decide how much weight to give the ABA’s rating, if any. But criticisms of this evaluator are unfair and unwarranted.

            Among the reasons for the ABA‘s “Not Qualified” rating of Mr. VanDyke is his troubling record when it comes to LGBT rights.

            In a 2004 op-ed, Mr. VanDyke wrote that “many studies raise concerns about gay parenting” and that there is “ample reason for concern that same-sex marriage will hurt families, and consequentially children and society.” That’s the Harvard Law Record, 2004. In fact, studies show that the children of gay and lesbian parents do as well as children raised in opposite-sex households.

            In written questions, I gave Mr. VanDyke an opportunity to disavow his unsupported statements about gay parents. He did not do so.

            Mr. VanDyke’s record on gun control is similarly problematic. While running for a seat on the Montana Supreme Court in 2014, Mr. VanDyke filled out an NRA questionnaire that makes clear his views on gun control are far outside of the mainstream. I would like to enter that questionnaire into the record.

            On the questionnaire, Mr. VanDyke checked answer boxes supporting the following viewpoints:

  • “Gun control laws are misdirected.”
  • “I oppose banning the manufacture, possession, ownership, purchase, sale and/or transfer of any firearm.”

            In addition, Mr. VanDyke indicated he opposed legislation requiring background checks for all guns sold at gun shows and opposed a ban on assault weapons.

            Mr. VanDyke’s defense of his responses to this questionnaire is that he answered the questionnaire as if he were a “legislative candidate” – even though he was seeking judicial office when he answered these questions.

            No one forced him to answer this questionnaire or to adopt these extreme positions.

            I posed the very same questions from his questionnaire to Mr. VanDyke in written questions.

            I was disappointed that he was willing to answer these questions for the NRA in 2014, but he refused to answer them when I asked these questions in his hearing.

            I finally want to note that Mr. VanDyke’s lack of Nevada ties was a key factor in the decision of Nevada’s senators to oppose his nomination.

            So, I think Mr. Chairman you have the senators from two of the states in the Ninth Circuit opposing this man, very troubled by his record.” 

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