The determined campaign by President Donald Trump and the Republican-controlled US Senate to stack federal courts with controversial conservative judges continued on December 11 when two of his appointees to the US Court of Appeals for the Ninth Circuit — one of whom is a gay man — were confirmed by the US Senate.
Civil rights groups voiced strong opposition to Patrick Bumatay, an out gay federal prosecutor, and Lawrence VanDyke, who had served as solicitor general in both Nevada and Montana, because both have histories of antagonism toward marginalized groups. Though LGBTQ advocates focused their fire on VanDyke, who has a stridently anti-gay record, Bumatay was opposed strongly by the Leadership Conference on Civil & Human Rights, an umbrella group that includes GLSEN, the Human Rights Campaign, Lambda Legal, the Matthew Shepard Foundation, the National Black Justice Coalition, the National Center for Transgender Equality, the National LGBTQ Task Force, PFLAG, and Pride at Work, among many national organizations.
Significantly, Bumatay, who has most recently served as an assistant US attorney for the Southern District of California, was opposed by both of his home state senators, Democrats Dianne Feinstein and Kamala Harris. Feinstein objected to Bumatay’s work enforcing the Trump administration’s family separation policy in which he contributed to a 2018 memorandum to federal prosecutors calling for zero-tolerance approaches to cases of illegal entry at the southern border. Prior to his post in California’s Southern District, he worked in different capacities within the Department of Justice. Feinstein also voiced doubt that Bumatay’s work experience qualified him to serve as a federal appellate judge.
Among other red flags, he backed Neil Gorsuch and Brett Kavanaugh’s Supreme Court nominations and, along with VanDyke, is a member of the right-wing Federalist Society, which recommends conservative appointees to Trump. The president had already appointed Bumatay to the US District Court for the Southern District of California, but that nomination was withdrawn when he was appointed to the Ninth Circuit bench.
Lambda Legal, which fiercely opposed VanDyke’s nomination, told Bloomberg Law that it was not opposing Bumatay, though a report the group published, “Trump’s Judicial Assault on LGBT Rights,” faulted the president’s reliance on Federalist Society members as judicial nominees and mentioned Bumatay by name in a footnote on that point.
Bumatay is the second out LGBTQ person to be nominated by Trump after Mary Rowland, a lesbian who is on the US District Court for the Northern District of Illinois, and he becomes the first to sit on one of the 12 federal circuit courts of appeals (separate from the specialized-pleas Federal Circuit, to which President Barack Obama appointed Todd Hughes in 2013).
More than two-dozen queer and HIV advocacy groups, including Lambda Legal, Equality New York, and the LGBT Bar Association of New York, signed on to a letter opposing VanDyke’s appointment that laid out his history of anti-LGBTQ rhetoric, including his statement that same-sex marriages would “hurt families and consequentially children and society.”
VanDyke served as solicitor general of Nevada from 2015 until this year, when he became deputy assistant attorney general in the Justice Department’s Environment and Natural Resources Division. His work history includes stints representing the anti-LGBTQ Alliance Defending Freedom.
VanDyke managed to put on a show during a hearing in October when he appeared to tear up in response to questions about his anti-LGBTQ record, but his actions in that area are not just distant memories. He used his power to promote homophobia when, as solicitor general of Montana, he signed friend-of-the-court briefs backing state-based bans on same-sex marriage.
“For our legal system to have credibility, people must have confidence that judges will follow the facts and the law, and yet Mr. VanDyke has refused to disavow his prior statements promoting harmful and unfounded myths about LGBT people, including the long-since discredited notion that marriage equality will somehow hurt families, and consequently children and society,” Sasha Buchert, a senior attorney at Lambda Legal, said in a written statement.
The American Bar Association also sent a letter to Senate Judiciary Committee Chair Lindsey Graham and to Feinstein, the ranking Democratic member, saying that the group’s Standing Committee deemed VanDyke “not qualified” based on integrity, professional competence, and judicial temperament.
“Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-today practice including procedural rules,” the letter stated. “There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.”
The Ninth Circuit Court of Appeals encompasses Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, as well as two territories: Guam and the Northern Mariana Islands. The circuit has a liberal reputation, and it is the circuit whose rulings Trump has inveighed against most strenuously.
Alarmingly, Trump has now appointed 50 circuit court judges, far outpacing the 55 total circuit court judges appointed by former President Barack Obama over eight years. He has also put 120 judges on district court benches around the nation and, of course, named two associate justices to the Supreme Court.
