By Gregg Re
Published March 25, 2019
Another of President Trump's nominees to the San Francisco-based 9th Circuit Court of Appeals cleared a key procedural hurdle in the Senate on Monday, as the White House continues its push to transform the key left-leaning appellate court that the president repeatedly has derided as hopelessly biased and "disgraceful."
By a 77-20 vote, the Senate invoked cloture to end debate on Trump's nomination of Arizona-based Magistrate Judge Bridget Bade, a former clerk to conservative 5th Circuit Judge Edith Jones. Bade is slated to replace Bill Clinton-nominated Judge Barry Silverman, who has been on senior status since late 2016 -- effectively judicial semi-retirement.
Bade was one of 51 judicial nominees the White House renominated earlier this year after the Senate failed to take action on them during the previous congressional session. Still waiting in the wings were Trump's other conservative 9th Circuit nominees: Daniel P. Collins, a former clerk to the late Justice Antonin Scalia; Daniel A. Bress, also a former Scalia clerk; and former George W. Bush administration official Kenneth Lee. All are currently in private practice.
Monday's vote all but assures Bade's confirmation this week after she was cleared out of the Judiciary Committee by a 17-5 bipartisan vote in February. Democrat Sens. Dianne Feinstein, Patrick Leahy, Dick Durbin, Sheldon Whitehouse and Chris Coons joined Republicans to support Bade in the committee, while Democrat presidential contenders Amy Klobuchar, Corey Booker, and Kamala Harris sided with Richard Blumenthal and Mazie Hirono to reject Bade.
Bade attracted little fanfare even among traditionally vocal progressive groups during her confirmation hearings last October, with the left-wing Alliance for Justice warning only that the Senate should "carefully review" her record and noting that it was unusual for a federal magistrate judge, as opposed to a full district court judge, to be appointed directly to the appellate bench.
With its lack of fireworks, Bade's confirmation process has stood in stark contrast to that of Seattle attorney Eric Miller, who was confirmed to the 9th Circuit last month in a 53-46 vote. In a historic snub, the White House ignored the input of the judge's two Democratic home-state senators in picking Miller, whom progressives attacked as a corporate lawyer and Federalist Society member whose career supposedly had been hostile to Native American rights.
Miller, formerly the appellate chairman of the high-powered law firm Perkins Coie and a onetime law clerk to Justice Clarence Thomas, replaced Judge Richard Tallman, another Bill Clinton appointee who assumed senior status recently.
Among Trump's other recent successful picks to the 9th Circuit: Ryan Nelson, a former staffer to former Attorney General Jeff Sessions, and former Hawaii attorney general Mark Bennett.
With a sprawling purview representing nine Western states, the 9th Circuit has long been a thorn in the side of the Trump White House with rulings against its travel ban policy and limits on funding to "sanctuary cities."
Just weeks ago, the 9th Circuit broke ranks with another federal appellate court and ruled that a Sri Lankan man who failed his initial asylum screening had the constitutional right to go before a judge -- threatening to clog the immigration court system further with tens of thousands of similar claims per year and setting up an all-but-certain Supreme Court showdown.
However, the court's left-wing reputation might be changing, as Senate Majority Leader Mitch McConnell, R-Ky., and Senate Republicans have continued to use the GOP majority to confirm judge after judge appointed by the president.
Following Miller's confirmation month, in an analysis entitled "Thanks to Trump, the liberal 9th Circuit is no longer liberal," The Washington Post noted that once all of Trump's current nominees to the bench are confirmed as expected, there will be 12 Republican-appointed judges on 9th Circuit, which consists of 29 full-time judges.