The White House is escalating its feud with Sen. Dianne Feinstein (D-Calif.).
Fresh off the bitter confirmation fight over Supreme Court Justice Brett Kavanaugh, which made Feinstein a top target for President Trump and some Republicans, the administration is pushing forward with an effort to fill vacancies in the circuit courts.
The White House announced late last week that Trump intends to nominate individuals for the three California vacancies on the 9th Circuit, moving Republicans closer to their long-held goal of rebalancing the appeals court, which they argue is too liberal and too large.
The 9th Circuit, based in San Francisco, has frustrated Trump by acting as a foil to some of his most controversial policies, including ruling against the travel ban and an effort to cut off federal funding for so-called “sanctuary cities.”
The forthcoming nominations have already sparked a fierce backlash from Feinstein, the top Democrat on the Judiciary Committee, and Sen. Kamala Harris (D-Calif.), a potential 2020 contender and a member of the panel. They both argue that the administration didn’t consult with them before announcing the court picks.
“I repeatedly told the White House I wanted to reach an agreement on a package of 9th Circuit nominees,” Feinstein said in a statement. “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.”
She added that the administration’s decision to move forward with the nominations in this manner “reflects President Trump’s desire to remake the court.”
Harris tweeted that “the Trump Administration is trying to pack the courts for years to come. We will fight this.”
The brewing showdown over California’s 9th Circuit seats is the latest point of contention between Trump and Feinstein.
Trump lashed out at Feinstein during a string of rallies this past week, appearing to encourage his supporters as they chanted “lock her up” about the 85-year-old senator, who is up for reelection this year.
Trump accused Feinstein, during a rally in Pennsylvania, of “disgraceful behavior” over Kavanaugh’s nomination and told supporters at an Iowa event that he was “ninety-nine percent” sure that she leaked Christine Blasey Ford’s letter detailing her sexual assault allegation against Kavanaugh.
Feinstein has denied that she or her staff leaked the letter.
It’s not the first time Trump has publicly targeted Feinstein.
Earlier this year he mocked her over reports that the Chinese government tried to recruit a staff member of hers who worked in California and who was subsequently fired. He also referred to her as “sneaky Dianne Feinstein” in January after she released the transcript between congressional investigators and Glenn Simpson, a co-founder of Fusion GPS, the opposition research firm that helped assemble the controversial “Steele dossier.”
But the court battles come as Republicans have put a premium on judicial nominations as they head toward the Nov. 6 midterm elections, when they hope to keep control of Congress, or at least their majority in the Senate.
“We’re in the personnel business,” Majority Leader Mitch McConnell (R-Ky.) told WHAS, a Kentucky radio station, on Monday. “So if people want the president to be able to appoint judges and cabinet members and others for the next two years then they need a Republican United States Senate.”
The three individuals Trump intends to nominate — Patrick Bumatay, Daniel Collins and Kenneth Kiyul Lee — each have Republican ties. Bumatay and Lee are members of the conservative Federalist Society, and Collins clerked for the late Justice Antonin Scalia and worked in the George W. Bush administration.
The 9th Circuit has 29 seats, compared with 17 seats for the 5th Circuit, which is considered one of the more conservative appeals courts.
White House counsel Don McGahn argued in a letter sent to Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) last week that he tried to work with Feinstein and Harris on an agreement about nominees for the seats. But, according to a timeline provided by McGahn, negotiations appeared to derail over the summer.
“We have spent nearly two years attempting to engage constructively with the Senators regarding the growing number of judicial vacancies tied to California,” McGahn wrote in the letter, according to a copy obtained by The Hill. “In fact, we have made more attempts to consult and devoted more time to that state than any other in the country.”
Feinstein, in a statement, countered that she told McGahn during a June 27 meeting that she opposed Collins, and that Lee “had problems.” In a letter to McGahn, sent earlier this month she said she remained “hopeful that we can work together to come to consensus on a package of three nominees.”
The nominations could escalate tensions on the Judiciary Committee, where emotions are still raw after the Kavanaugh confirmation fight.
Republicans are still mulling an investigation into how Ford’s letter was leaked, and Democrats on Monday sent a letter to Grassley objecting to his decision to schedule nomination hearings during the Senate’s pre-election recess.
Grassley hasn’t indicated whether he will try to move the 9th Circuit nominations, once they are formally submitted to the Senate, over Feinstein’s objections. It’s unclear if the Senate would be able to confirm them by the end of the year, or if Trump will need to renominate them in January when the new Congress is seated.
Half of the president’s circuit nominees during his first year were confirmed in less than 100 days, including one confirmed in 59 days and another confirmed in 65 days — the two fastest confirmation processes for a circuit judge since 1993, according to the Congressional Research Service.
Democrats are powerless to stop Trump’s judicial nominees without help from Republicans. Democrats nixed the 60-vote filibuster for most nominations in 2013 and Republicans have signaled they will not let objections from a home-state senator block a circuit court nominee from getting a vote on the Senate floor.
The “blue-slip” rule — a precedent upheld by Senate tradition — has historically allowed a home-state senator to stop a lower-court nominee by refusing to return a sheet of paper, known as a blue slip, to the Judiciary Committee.
But how strictly the precedent is upheld is decided by the Judiciary Committee chairman — in this case, Grassley — and enforcement has fluctuated depending on who wields the gavel on the panel.
Senate Republicans have confirmed several of Trump’s circuit court nominations even when one home-state senator did not return their blue slip. The Judiciary Committee also advanced Ryan Bounds’s circuit court nomination to the full Senate even though both home state members — Democratic Sens. Jeff Merkley (Ore.) and Ron Wyden (Ore.) — didn’t return their blue slips.
Bounds’s nomination was ultimately withdrawn when it became clear he was short of the votes needed to be confirmed.
Feinstein said that she “acted in good faith” on the recent 9th Circuit negotiations, adding that she expects her “blue slips to be honored.”
Asked if the statement was an indication she would not return her blue slips, a spokeswoman declined on Monday to comment further.
McConnell has said he does not believe blue slips should be used to “blackball” circuit court nominations, and Grassley has warned he will not let Democrats “abuse” the blue slip.
Asked about the 9th Circuit nominations, Sen. John Cornyn (R-Texas), the No. 2 Republican in the Senate, said he believed McGahn was handling it correctly by viewing the blue slip as “a requirement of consultation with the home state senator but it’s not a veto.”
“I think it’s been returned to where it should be,” Cornyn said. “Some senators have been less willing to negotiate with the White House on the packages, and I presume that’s what happened here.”
BY JORDAIN CARNEY – 10/16/18