At a Senate Judiciary Committee hearing on two nominees for the U.S. Court of Appeals for the Ninth Circuit on Wednesday, senators from both political parties raised dueling concerns about how the judicial confirmation process currently plays out.

Republicans on the committee criticized the American Bar Association's "not qualified" rating of former Nevada Solicitor General Lawrence VanDyke issued the night before the hearing, with some calling on the White House to cut off the organization's access to candidates claiming bias against conservative candidates. Democrats, meanwhile, noted that home state senators had not returned blue slips indicating their approval of VanDyke's nomination nor that of Southern California federal prosecutor Patrick Bumatay, the other nominee under consideration Wednesday morning.

Rhode Island Democratic Sen. Sheldon Whitehouse warned his colleagues across the aisle that moving forward with the nominations of Bumatay and, particularly, VanDyke would mean that senators have little claim for there being any "home state" input on judicial nominees for Circuit seats tied to a particular state. Even prior to Tuesday night's "not qualified" rating for VanDyke from the ABA, Nevada's Democratic senators had opposed his nomination, maintaining that his four-year stint as the state's solicitor general didn't demonstrate sufficient ties to the state.

"When we go over this precipice there is no return," Whitehouse said at Wednesday's hearing.

The hearing was shaped largely by the letter delivering VanDyke's "not qualified" rating, which the nominee said he saw for the first time around 7 p.m. the evening before the hearing. Although the letter from the American Bar Association's standing committee on the Federal Judiciary called VanDyke "highly educated," it said concerns were raised that he missed fundamental issues and analysis in the cases he handled. The letter, which said that the rating was based on interviews with 60 practitioners and judges across four states, found VanDyke to be "arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules."

VanDyke testified Wednesday that the person that interviewed him as part of the ABA's vetting process was someone he believed had contributed to his opponent when he ran for a seat on the Montana Supreme Court. VanDyke said he was particularly upset that the ABA said he had been unclear about whether he could be fair to LGBTQ litigants who might come before him.

"That was the part of the letter," said VanDyke, before tearing up and pausing.

"No, I did not say that," VanDyke said. "It is a fundamental belief of mine that all people are created in the image of God, and they should all be treated with dignity and respect," he said.

Missouri Republican Sen. Josh Hawley, who was questioning VanDyke at the time, called the ABA's rating of the nominee a "shameful exercise in political bias."

"I think it is past time for the White House to stop granting the ABA special access" to nominees, Hawley said.

The White House in September nominated Bumatay, a veteran federal prosecutor in San Diego, and VanDyke, who also served as solicitor general in Montana earlier in his career, to seats set to come open as Ninth Circuit Judges Carlos Bea of California and Jay Bybee of Nevada take senior status. Both sitting judges have indicated to the president that they will take on the reduced senior role once their replacements are nominated and confirmed.

Longtime prosecutor Bumatay currently serves as an assistant U.S. attorney in the appellate and narcotics sections of the Southern District of California. Trump initially tapped him for the Ninth Circuit last year while he was serving as a counselor to then-Attorney General Jeff Sessions on criminal issues, including the opioid crisis and transnational organized crime.

After California's Democratic Sens. Dianne Feinstein and Kamala Harris raised concerns that the White House hadn't consulted with them about potentially appointing Bumatay, his nomination was allowed to expire. Trump later nominated Bumatay for U.S. District Judge of the Southern District of California, but after that nomination lingered in the Senate without a vote, the president nominated him again to the Ninth Circuit in September to fill the seat set to come open when Bea takes senior status.

If confirmed, Bumatay would be the first openly gay circuit judge and the first of Filipino descent appointed by Trump. Earlier in his career, Bumatay clerked for Judge Timothy Tymkovich of the U.S. Court of Appeals for the Tenth Circuit and U.S. District Judge Sandra L. Townes of the Eastern District of New York.

At Wednesday's hearing, Feinstein, the ranking member on the committee, said she respected Bumatay's career of public service and the diversity he would bring to the bench, but said that his work in appellate courts had been "extremely limited." She noted that he had only joined the appellate division of the San Diego federal prosecutors' office in March of this year. Feinstein also pointed out that neither she nor Harris, who is on the committee but was not present at Wednesday's hearing, have returned blue slips indicating that they have given their blessing to the president's nomination of Bumatay.

"Blue slips are the only way that home-state senators can ensure that nominees that directly impact their states are appropriate for the bench," Feinstein said.

Feinstein and Harris have previously objected to the president's three prior California-based Ninth Circuit nominees—Kenneth Lee, Daniel Collins and Daniel Bress. All three, however, were reported out of the Senate Judiciary and were confirmed by the full Senate.

VanDyke, who served as Nevada's solicitor general from 2015 until earlier this year, currently serves as a deputy assistant attorney general for the environment and natural resources division at the U.S. Department of Justice. A former associate at Gibson, Dunn & Crutcher, VanDyke clerked for Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit earlier in his career.

Wednesday's hearing comes about a month after another Trump Ninth Circuit nominee Danielle Hunsaker, the presiding judge on the Washington County Circuit Court of Oregon, sat for her confirmation hearing, less than a week after the Senate Judiciary passed her nomination on for a vote by the full Senate. If Hunsaker, Bumatay and VanDyke are confirmed, 13 of the circuit's 29 active seats will be held by judges nominated by Republican presidents.

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