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Here’s How Trump Is Trying To Remake His Least Favorite Court

The White House sent five names to California Sens. Dianne Feinstein and Kamala Harris over the summer for the 9th Circuit. The senators are preparing a list of candidates to send back to the White House.

Last updated on March 16, 2018, at 9:06 a.m. ET

Posted on March 15, 2018, at 3:02 p.m. ET

Leah Millis / Reuters

In a fundraising speech this week, President Donald Trump railed against what is arguably his least favorite federal court region — the 9th Circuit — calling it "unfair" how often the judges there had ruled against his administration.

"It shows you how important it is to have fair people put on the bench," he said, according to a transcript.

The White House has specific people in mind. BuzzFeed News obtained the list of names the White House is considering for several seats on the US Court of Appeals for the 9th Circuit, which sets precedent for federal courts across much of the western United States. The list was sent to California Sens. Dianne Feinstein and Kamala Harris in July, and Feinstein and Harris have been interviewing candidates and preparing to send back their own list of names, according to a source familiar with the process.

Several of the names on the White House's list were previously reported as having interviewed with the administration, but the final list of five that the White House pitched to Feinstein and Harris had not been reported until now. The list has not changed since it was sent to the senators.

The list includes: Daniel Bress, a partner at the law firm Kirkland & Ellis in Washington, who is from California; Daniel Collins, a partner at Munger Tolles & Olson in Los Angeles; Kenneth Lee, a partner at Jenner & Block in Los Angeles; Orange County Superior Court Judge James Rogan, a former congressman and director of the US Patent and Trademark Office; and Jeremy Rosen, a partner at Horvitz & Levy in Burbank, California.

The 9th Circuit is the largest of the regional federal appeals courts in terms of geography. It covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington state. Trump has announced two nominees to date: Ryan Bounds, for one of the seats designated for nominees from Oregon, and Mark Bennett, for a Hawaii seat.

There are two seats open for California nominees — it's not an official rule, but circuit courts traditionally have divided seats among the states they cover. The 9th Circuit's size, combined with its reputation as liberal-leaning, has prompted proposals from congressional Republicans to split up the circuit, but those have never gone far.

The White House's list for the California seats features experienced lawyers with strong conservative credentials. Bress and Collins clerked for the late Supreme Court justice Antonin Scalia. Lee served in the White House counsel's office under former president George W. Bush. Rogan served as a Republican in Congress and was nominated by Bush for a federal judgeship, but he wasn't confirmed. Rosen is a past president of the Los Angeles lawyer's division of the Federalist Society, a conservative lawyers group.

The White House did not return a request for comment.

Above the Law reported last year that Bress, Lee, and Rogan were among the candidates interviewed by the White House. The Recorder had reported that Rosen was under consideration.

The five men either declined to comment or did not return a request for comment.

With two home state senators who are not only Democrats, but who also sit on the Senate Judiciary Committee — Feinstein is the committee's ranking Democrat — the California nominations have the potential to be politically fraught for the White House and Senate Judiciary Committee Chair Chuck Grassley.

If Trump chooses nominees without support from Feinstein and Harris, they could try to hold up those nominations. Grassley has said he will consider scheduling hearings for nominees even without approval from home state senators — an informal senatorial courtesy system known as the blue slip process — a move that prompted backlash from Democrats who accused him of changing the rules and eroding the Senate's leverage with the White House on nominees.

Oregon's Democratic home state senators, Ron Wyden and Jeff Merkley, have said they won't support Bounds, accusing him of failing to disclose "inflammatory writings that reveal archaic and alarming views about sexual assault, the rights of workers, people of color, and the LGBTQ community." Grassley has yet to announce if he will schedule a hearing for Bounds, notwithstanding the unreturned blue slips from Wyden and Merkley; it would be the first time he set a hearing when both home state senators objected. How Grassley handles that situation could signal how he might proceed if Feinstein and Harris try to block a Trump nominee for the 9th Circuit.

Feinstein and Harris are preparing their own list of candidates to pitch to the White House, and they are expected to include US District Judge Lucy Koh, who sits in San Jose, California, as well as others, according to a source familiar with the process. Former president Barack Obama nominated Koh for the 9th Circuit, and the Senate Judiciary Committee approved her nomination in September 2016, but the full Senate failed to act by the end of the session.

With two California seats open, the White House could try to make a deal with Feinstein and Harris, but it's unclear how much they would want to give on a court that has been a source of the president's ire for so long. A spokesperson for Feinstein did not immediately return a request for comment; a spokesperson for Harris declined to comment.

Trump lashed out at the 9th Circuit for upholding rulings that blocked his travel ban executive orders and criticized his detractors for bringing lawsuits in courts covered by the circuit. In June 2017, after the 9th Circuit largely blocked enforcement of the second version of Trump's travel ban order, he tweeted, "Well, as predicted, the 9th Circuit did it again - Ruled against the TRAVEL BAN at such a dangerous time in the history of our country. S.C." (S.C. appearing to refer to "Supreme Court.")

Well, as predicted, the 9th Circuit did it again - Ruled against the TRAVEL BAN at such a dangerous time in the history of our country. S.C.

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

In April 2017, after a federal judge in California partially blocked Trump's efforts to restrict federal funds to jurisdictions with so-called "sanctuary" laws, Trump said on Twitter that the ruling was "ridiculous" and accused the challengers of "judge shopping" by bringing cases in the 9th Circuit, which he said "has a terrible record of being overturned (close to 80%)." He wrote that the 9th Circuit had issued the ruling, but it was a federal district judge, not the appeals court.

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...the Ninth Circuit, which has a terrible record of being overturned (close to 80%). They used to call this "judge shopping!" Messy system.

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

Trump was partially right — in its most recent US Supreme Court scorecard from June 2017, SCOTUSblog found the 9th Circuit was reversed in 88% of cases that went before the justices in the previous term (seven of the eight cases the court took from the 9th Circuit). But the Supreme Court reversed lower court rulings in most of the cases it heard: The average rate of reversal across the circuits was 79%, and four circuits had a 100% reversal rate.

During a February meeting with governors, Trump reportedly said, "Nothing's as bad as the 9th Circuit."

UPDATE

In April 2017, a federal judge in California blocked the Trump administration's efforts to limit federal funds to sanctuary jurisdictions. A previous version of the story incorrectly stated the subject of the case.


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