Bumatay Confirmed, 9th Circuit Balance Narrows

With the US Senate’s confirmation of President Trump’s ninth judge to the 9th US Circuit Court of Appeals Tuesday it gives the 29-judge court a nearly even balance of 13 Republican-appointed judges to the 16 Democrat-appointed judges.

 The Senate voted 53-40 to confirm San Diego federal prosecutor Patrick Bumatay to an appellate judgeship. Bumatay, 41, is the first Filipino-American to serve on a federal appeals court. He is also the second openly gay judge appointed by Trump.  He joins the nation’s largest appeals court to fill the seat of Judge Carlos Bea.

 His nomination came over the opposition of both California Senators, Dianne Feinstein and Kamala Harris, both Democrats. Traditionally, presidents negotiate mutually agreeable nominees when the senators affected are from the opposing party. But Trump nominated Bumatay despite the objections of Feinstein and Harris. They were critical of his lack of experience.

Bumatay has been a federal prosecutor for just five years and tried only eight cases to verdict. He worked on the Bush-Cheney presidential campaign in both 2000 and 2004.

Bumatay is expected to retain his seat in San Diego.

His confirmation comes just three years into Trump’s term. It brings the court to full strength, with one more vacancy coming open January first when Judge Jay Bybee takes senior status at the end of the year. Bybee was appointed by President George W. Bush in 2003 after Bybee, while an Assistant Attorney General in the Office of Legal Counsel, signed the controversial “Torture Memos” in August 2002, authorizing waterboarding and other enhanced interrogation.

Appellate judges hear cases in panels of three.  The 16-13 Democrat-to-Republican breakdown is significant when it comes full court votes on whether to rehear a panel decision by a full 11-judge panel, known as “en banc” review.

The close philosophical divide increases the potential for close votes for en banc rehearing and draws the court closer to a tipping point of conservative dominance on the court for the first time in decades.

Bumatay attended Harvard Law School and clerked for Judge Timothy Tymkovich of the 10th Circuit Court of Appeals, based in Denver. Bumatay worked in the Justice Department, helping with the confirmation of Chief Justice John Roberts, Samuel Alito and Neil Gorsuch.

Bumatay was nominated in October 2018 the nomination was not confirmed by the end of the session and it ended in January 2019. He was then nominated in February for a trial court seat in San Diego but Trump withdrew that nomination in October and again placed him in nomination for the appeals court.

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