In an unexpected role reversal, President Trump is trying — for a second time — to confirm a gay U.S. prosecutor to a federal appeals court despite objections from Sen. Kamala Harris (D-Calif.) over his qualifications for a lifetime judicial appointment.
The White House included on Friday Patrick Bumatay, a gay Filipino who serves as a U.S. attorney in Southern California, on a list of six individuals intended for nominations to the federal bench.
Trump tapped Bumatay to serve on the U.S. Ninth Circuit Court of Appeals. Upon Senate confirmation, Bumatay would become the highest-ranking openly gay federal judge in the country.
Currently, the only other openly gay federal appeals judge is U.S. Circuit Judge Todd Hughes of the Federal Circuit, whom the Senate confirmed in 2013 after he was nominated by President Obama. But the Federal Circuit isn’t considered as prestigious or high-ranking as the Ninth Circuit.
Trump initially nominated Bumatay for a seat on the Ninth Circuit last year, but was thwarted by objections from the nominee’s home state senators. Both Sen. Dianne Feinstein (D-Calif.) and Harris recommended other judicial picks for the Ninth Circuit, but Trump ended up ignoring them and choosing his own, including Bumatay.
The standoff ended with Trump rescinding Bumatay’s nomination for the Ninth Circuit and nominating him instead to become a trial judge on the U.S. District Court for the Southern District of California.
But things changed after the retirement of U.S. Chief Judge Alex Kozinski, who left the bench amid allegations of sexual misconduct and abusive employment practices. Speculation emerged Trump would once against nominate Bumatay to the Ninth Circuit — this time to replace Kozinski.
Harris in a statement made clear she continues to hold the same opposition to Bumatay’s nomination she held the first time around.
“Once again, the president has put forth a highly flawed nominee to the Ninth Circuit, without the support of California’s senators,” Harris said. “I first objected to Mr. Bumatay after his initial nomination to the Ninth Circuit a year ago and again raised concerns about his qualifications and fitness when he was nominated for the district court.”
Harris, a Democratic presidential candidate, also accused Trump of selecting a judicial nominee intended to “advance a political agenda and remake the federal judiciary.”
“A nominee for a lifetime appointment to the federal bench must demonstrate exceptional skill, professionalism and respect for the principle of equal justice under law,” Harris said. “Mr. Bumatay does not meet this standard. Mr. Bumatay has a troubling prosecutorial record, lacks the requisite experience, and has drawn criticism from members of California’s legal community, across party lines. It is clear that he lacks the judgment and qualifications to serve on the Ninth Circuit.”
The Washington Blade has placed a request with Harris’s office seeking examples of incidents in which Bumatay has exhibited a troubling prosecutorial record, lacked the requisite experience and been criticized by California’s legal community.
At the LGBT forum for Democratic presidential candidates that took place on the same day the White House announced the Bumatay nomination, the Washington Blade asked Harris to square her support for LGBT rights with her opposition to a gay judicial nominee.
“When we look at his background,” Harris replied, “I don’t have any confidence that he is actually going to fight for the civil rights of all people, and oh that he would because I would love to be a part of continuing to do the work that we need to diversify the court.”
The dispute flips the usual roles of Trump, who has built an anti-LGBT record over the course of his administration, and Harris, an LGBT ally. Among other things, Harris supports the Equality Act, questioned Trump nominees on their commitment to LGBT rights and has advocated for the inclusion of LGBT questions in the U.S. Census.
Feinstein’s office didn’t immediately respond to the Blade’s request to comment on the Bumatay nomination and whether the California Democrat will continue to oppose him.
Bumatay’s confirmation would mark the second time the Senate has confirmed an openly LGBT Trump judicial nomination. The first was U.S. District Judge Mary Rowland of Illinois, who was confirmed earlier this year as a result of an agreement among the White House, Sen. Richard Durbin (D-Ill.) and Sen. Tammy Duckworth (D-Ill.).
To be sure, both Rowland and Bumatay are just two LGBT nominees among more than 150 nominations Trump has made to the judiciary, many with anti-LGBT records.
Among them is U.S. Circuit Judge Kyle Duncan of the U.S. Fifth Circuit Court of Appeals, whose anti-LGBT record includes defending a Virginia high school in litigation seeking to block transgender student Gavin Grimm from using the bathroom consistent with his gender identity.
Another is U.S. District Judge Matthew Kacsmaryk, who voiced support for Kim Davis and worked for the First Liberty Institute, an organization seeking a First Amendment right to allow businesses to refuse to make wedding cakes for same-sex couples.
According to his White House bio, Bumatay before serving as a U.S. prosecutor was counselor to the U.S. attorney general on various criminal issues. Including the opioid epidemic and transnational organized crime.
Bumatay has also served in other positions in the U.S. Justice Department, including the Office of the Deputy Attorney General; the Office of the Associate Attorney General, where he was responsible for overseeing various aspects of the department’s civil enforcement programs; and the Office of Legal Policy.
Upon graduation from law school, Bumatay served as a law clerk to U.S. Circuit Judge Judge Timothy Tymkovich of the U.S. Tenth Circuit Court of Appeals and clerked for U.S. District Judge Sandra Townes of New York. Bumatay earned his bachelor’s degree from Yale University and his law degree from Harvard Law School.
The White House bio notably cites Bumatay’s membership in the Tom Homann LGBT Law Association, a San Diego-based LGBT legal group, as well as his affiliation with the National Filipino American Lawyers Association, the National Asian Pacific American Bar Association and the Federal Bar Association.
The White House didn’t respond to the Washington Blade’s request to comment on whether Bumatay’s potential distinction as the highest-ranking openly gay federal judge was a factor in Trump’s decision to nominate him.
Charles Moran, managing director for Log Cabin Republicans, urged Feinstein and Harris to drop their opposition to Bumatay to ensure his swift confirmation.
“Beyond the important distinction that he’s immensely qualified for this appointment, Log Cabin Republicans is excited for the possibility of two landmarks with Patrick’s nomination — as the highest ranking Filipino-American to the federal bench and also as the most senior openly-LGBTQ federal judge in America,” Moran said. “We are hopeful that senators Feinstein and Harris will end their blockade of this impactful nomination by President Trump for the LGBTQ and legal community.”