A hallmark of Donald Trump’s presidency has been his nomination of numerous far-right, anti-LGBTQ judges to the federal courts — but now he’s nominated a second judge, albeit a conservative one, from the LGBTQ community.
The White House last week announced the nomination of Patrick J. Bumatay to the U.S. Court of Appeals to the Ninth Circuit, which covers Arizona, Nevada, California, Oregon, Washington, Idaho, Montana, Alaska, and Hawaii, plus the U.S. territories of Guam and the Northern Mariana Islands.
Burnatay is a federal prosecutor based in San Diego but is temporarily on assignment to the Justice Department, and he is a member of the Tom Homann LGBT Law Association, a networking group for LGBTQ attorneys, the San Francisco Chronicle reports.
Some far-right commentators are objecting to Burnatay’s nomination because he’s gay, but he’s a conservative jurist — he’s a member of the right-wing Federalist Society, which has recommended judges to the Trump administration, including newly confirmed Supreme Court Justice Brett Kavanaugh.
On his Justice Department assignment, he is a counselor to Attorney General Jeff Sessions on the opioid crisis and organized crime, among other matters. He worked for the Justice Department during the George W. Bush administration as well and has edited a conservative law journal at Harvard Law School. He worked on the confirmations of three conservative Supreme Court justices, John Roberts, Samuel Alito, and Neil Gorsuch, but apparently not Kavanaugh.
He would be the second openly gay judge on a federal appeals court, the first one being Todd Hughes, a judge on the Court of Appeals for the Federal Circuit. He was nominated by President Barack Obama and confirmed to the court in 2013. While Trump has now nominated two out LGBTQ judges to the federal courts, Obama nominated 11, the Chronicle notes.
Trump’s other out nominee is Mary Rowland, for the U.S. District Court for the Northern District of Illinois. The Senate Judiciary Committee last week voted to advance her nomination to the full Senate.
LifeSite News, a right-wing publication, has denounced the nominations of both Rowland and Bumatay. The site laid out its objections in a Friday post, saying, “Bumatay follows Judge Mary Rowland, an open homosexual who has ties to the left-wing Lesbian & Gay Bar Association of Chicago and Lambda Legal Defense & Education Fund, as the second appointee whose background raises doubts as to whether he would separate his homosexuality from his jurisprudence.”
While Rowland’s nomination is supported by Democrats as well as Republicans, Burnatay’s is raising some controversy among Dems. He was once of three conservatives Trump nominated last week to the notably liberal Ninth Circuit, which roused his ire by ruling against his travel ban. The others are Daniel P. Collins and Kenneth Kiyul Lee.
Dianne Feinstein, California’s senior senator and the top Democrat on the Judiciary Committee, criticized the White House by putting forth the nominees without consulting her, CNN reports. She had recommended some other judges to White House counsel Don McGahn and had expressed reservations about Collins and Lee.
“The decision to move forward with these nominees without consultation reflects President Trump's desire to remake the court,” she said in a news release. Feinstein and California's other U.S. senator, Kamala Harris, reportedly may try to block the nominees.