December 10, 2019 at 2:44 pm EST | by Chris Johnson
SHOCKER: Senate confirms Trump nominee as highest-ranking out gay judge
Patrick Bumatay was one of Trump’s openly gay judicial nominees. (Screen capture public domain)

In a counter-intuitive development, the U.S. Senate approved on Tuesday an openly gay federal prosecutor named by President Trump for a seat on the U.S. Ninth Circuit Court of Appeals, making him the highest-ranking openly gay federal judge in the country.

The Republican-majority chamber approved Patrick Bumatay, who previously worked as a U.S. attorney in Southern California, to a lifetime seat on the federal appeals court. The vote was 53-40.

With Republicans voting in his favor and Democrats voting against him, the traditionally party roles on LGBTQ rights were shifted on the confirmation vote.

Democrats cited Bumatay’s lack of appellate experience as a reason to vote against him. Trump chose Bumatay for the seat after ignoring the recommendations of Sens. Kamala Harris and Dianne Feinstein of California for the seat on the Ninth Circuit.

Sens. Tammy Baldwin (D-Wis.), the only out lesbian in the Senate, and Sen. Kyrsten Sinema (D-Ariz.), the only open bisexual, were among the Democrats voting against Bumatay. Also voting against was Sen. Jeff Merkley (D-Ore.), the chief sponsor of the Equality Act in the Senate.

No senator — either for or against Bumatay — took to the floor to speak out on the nominee days before his confirmation or the cloture vote to end the filibuster to end his nomination.

Now that he’s confirmed, Bumatay, who’s both gay and Filipino, is not only the highest-ranking openly gay person on the federal bench, but also the highest-ranking Filipino.

Previously, 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.

It’s the second openly gay person Trump has confirmed to the federal bench. The first one was Mary Rowland, who was approved in August and is now a federal judge in Illinois.

To be sure, Trump has nominated and the Senate has confirmed scores of judicial nominees who have lacked diversity and have anti-LGBTQ records. Among them is Lawrence VanDyke, who’s set to have a vote for confirmation to the U.S. Ninth Circuit Court of Appeals on Wednesday.

Bumatay was confirmed to the seat despite opposition from his two home state senators — Harris and Feinstein — civil rights organizations and one anti-LGBT group. Log Cabin Republicans were among Bumatay’s supporters.

“Log Cabin Republicans is heartened by the long-awaited confirmation of Patrick Bumatay as a judge on the Court of Appeals for the Ninth Circuit, making him the highest-ranking LGBT jurist in the nation,” said Charles Moran, managing director of the Log Cabin Republicans in a statement. “He is an accomplished prosecutor with solid experience, and we’re thankful to President Trump for pushing forward with Patrick’s nomination and the Senate confirming him, knowing he would never get a fair shake from his home-state senators. I know all Americans will welcome Patrick’s arrival on the Ninth Circuit, bringing some sanity back to the circuit most known for being out of the mainstream.

Among the civil rights groups opposing Bumatay was the Leadership Conference on Civil & Human Rights.

Lena Zwarensteyn, fair courts campaign director at the Leadership Conference on Civil & Human Rights, said in a statement Bumatay “is part of Trump’s shameless effort to reshape the Ninth Circuit.”

“He has served as a political operative in the Trump administration and has pushed a far-right agenda,” Zwarensteyn said.

As an example, Zwarensteyn said as a U.S. prosecutor Bumatay “played a central role in reinstating policies that perpetuate the mass incarceration of communities of color.”

“He also played a key role in vouching for the nominations of anti-civil rights nominees Neil Gorsuch and Brett Kavanaugh during their Supreme Court confirmation fights,” Zwarensteyn said.

“It is no surprise that Trump pushed this nomination over the objections of both senators from California as part of his effort to transform the Ninth Circuit,” Zwarensteyn said. “Bumatay does not represent the people of California and they deserve better.”

Marge Baker, vice president for policy and program for People for the American Way, said in a statement Bumatay was “yet another” unqualified Trump judicial pick.

“Patrick Bumatay is yet another Trump judicial pick who is opposed by both of his Democratic home-state senators and whose main ‘qualification’ is his right-wing ideology and party loyalty,” Baker said. “When directly asked about past prosecutorial misconduct on his part, which he had not disclosed, Bumatay failed to explain or even acknowledge that it happened.”

On the other side of these civil rights groups was the American Family Association, which is notoriously anti-LGBTQ.

Tim Wildmon, president of the American Family Association, urged senators to vote “no” on the Bumatay nomination in a Nov. 27 blog post, identifying as “red flags” his connection to Tom Homann LGBT Law Association (THLA), DOJ Pride and Log Cabin Republicans. 

“These radical groups fight to pass anti-religious liberty laws and work to place activist judges on the bench,” Wildmon said. “Their goal is to force Christians to abandon their religious faith and surrender to the homosexual agenda.”

According to AFA, the organization led more than 20 conservative groups in a letter against Bumatay, asserting nothing in his record “demonstrates that he is a strict constitutionalist in the mold of Scalia,” as President Trump promised for his judicial appointees.

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 President Trump is proud one of his appointees is now the highest-ranking openly gay federal judge in the United States.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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