(L to R) Patrick Bumatay andLawrence VanDyke appearing before the Senate Judiciary Committee during confirmation hearing to be U.S. Circuit Judge for the Ninth Circuit Court of Appeals. Photos: Diego Radzinschi/ALM

The Senate Judiciary Committee on Thursday gave sign-off to two nominees for the U.S. Court of Appeals for the Ninth Circuit in party-line votes, moving both a step closer to confirmation.

All 12 Republican Senate Judiciary members voted to forward the nominations of Southern California prosecutor Patrick Bumatay and former Nevada and Montana solicitor general Lawrence VanDyke to the full Senate. Committee Democrats, citing Bumatay's lack of appellate experience and questions about VanDyke's qualifications and ties to Nevada, voted against both nominations.

At a contentious confirmation hearing last month on the two nominations, senators from both parties raised concerns about the current state of the judicial confirmation process. Several Republicans on the committee criticized the American Bar Association's "not qualified" rating for VanDyke, with some calling on the White House to cut off the organization's access to candidates and claiming bias against conservative candidates. Meanwhile, Democrats said that their colleagues in the majority were setting a dangerous precedent by moving forward on circuit court nominations where home-state senators had not returned blue slips indicating their approval.

Prior to Thursday's vote, seven committee Democrats spoke to raise objections to the process and the two circuit court nominees. Sen. Sheldon Whitehouse, D-Rhode Island, noted that the committee has the power to bring in the ABA's vetters and review the evidence that went into their "not qualified" rating for VanDyke, but that his colleagues across the aisle had no interest in slowing down the judicial confirmation process. Whitehouse said the committee was "on autopilot with no real reason" other than "the conveyor belt of these judges must be fed." Judiciary Committee chairman Lindsey Graham, R-South Carolina, meanwhile, acknowledged that some of his colleagues had raised concerns about the lack of transparency in the ABA vetting process, but he said that he found the process "valuable" and he planned to stick with it.

The ABA standing committee on the federal judiciary deemed VanDyke to be "not qualified," a designation its given to eight other nominees of President Donald Trump. In an Oct. 29 letter to the Senate Judiciary, the ABA committee described VanDyke as "arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice," based on the views of 60 lawyers and others interviewed in the vetting process. At last month's confirmation hearing, VanDyke choked up and cried when responding to the ABA letter's assertion that he "would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community."

"I didn't say that. I don't believe 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."

Prior to Thursday's vote, Graham said if VanDyke's four years representing Nevada as solicitor general didn't show significant enough ties to the state he didn't know what would. "This was a tough hearing," Graham said of last month's confirmation hearing. "He was accused of pretty tough stuff; his reaction to me told me a lot about who he is." Graham said that VanDyke's appearance before the committee showed that "though he's a social conservative NRA member that he can actually do his job" as a federal appellate judge.

The Senate Judiciary's approval of Bumatay continues a string of Ninth Circuit nominees from California that have been forwarded to the Senate without the backing of Sen. Dianne Feinstein and junior colleague Sen. Kamala Harris, also a committee member. (Harris wasn't present for Thursday's hearing but voted no on both Ninth Circuit nominations by proxy.) The California senators 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 confirmed by the full Senate.

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. If confirmed, Bumatay would be the first openly gay circuit judge and the first of Filipino descent appointed by Trump. Feinstein said Thursday that she appreciated Bumatay's public service and the diversity he would bring to the bench, but she again raised concerns that he had handled only two appellate arguments in his career and had refused to respond to many of her written questions about his work while in the Trump Administration.

"I believe Mr. Bumatay does not have the appellate experience required of those appointed to courts of appeal," she said.

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