Feinstein’s Lost Clout Over Kavanaugh, Now Powerless on Judicial Appointments in Senate

Dianne Feinstein in Outer Space

For decades Senate Judiciary Committee Ranking Member Dianne Feinstein of California has had powerful and even unusual influence on judiciary nominations in California for District Court, Ninth Circuit Court of Appeals and even appointments of US attorneys across the state.

Yet a recent action by the Republican-controlled Judiciary Committee and a Senate vote on fifteen new nominees, makes it clear that Feinstein has totally and completely lost her ability to influence judicial appointments in the state, and it is all because of her shabby performance in the nomination, and attempt to delay the nomination, of Brett Kavanaugh to the US Supreme Court, coupled with a touch of betrayal from her own party leader in the Senate.

Under Democratic Presidents Clinton and Obama, Feinstein always had an important role in who was ultimately appointed to a Federal judiciary position in California. As a California Senator and top ranking member of the Judiciary Committee, Feinstein was able to wield the mighty “blue slip,” a Senate custom, which gave her a practical veto on many Presidential nominations in the state. Even when Republican George W. Bush was President, Feinstein took on an outsized power to review, reject and approve Bush appointees in California, even before they got to the Senate floor, through a controversial judicial “commission” setup up during Bush’s term.  The result was Bush was forced to compromise again and again on California judicial appointments, and was only able to appoint and confirm a handful of solidly conservative judges in California during his eight years as President.

The power Feinstein had on these appointments for three decades has surely helped make the Ninth Circuit Court of Appeals unquestionably the most liberal circuit court in the nation. Up until last week, only six of twenty-nine appointees on that Court were Republicans. Yet now, Feinstein’s reign in liberalizing California Federal appointments is over. And it appears the Senator Democratic leader Chuck Schumer may have helped Senate Republicans to cut Feinstein’s influence as well.

This is because last week, after the Kavanaugh confirmation was behind them, the Senate quietly confirmed fifteen additional Trump Administration judicial appointments, including Republican Ryan Nelson to the Ninth Circuit. Further, last week the Judiciary Committee approved two more Trump Administration Ninth Circuit nominees, (one of whom, Patrick Bumatay, is not only a Republican, but will be the first openly gay judge to ever serve on the Ninth Circuit, based in San Francisco) who will surely be confirmed by the full Senate after the November election. All three of these nominees were actively opposed by Feinstein and subject to her “blue slip” opposition. Schumer made a deal with Senate Republicans, despite Feinstein’s opposition, and according to news reports, what he got were two lower court nominees for East Coast courts who had been initially appointed by Obama but never confirmed. Thirteen out of fifteen was a pretty good deal for Senate Republicans to get quick approval now, and in the coming “lame duck” Senate, such a deal won’t be necessary because of Republican control. Thus, we can expect three new Republican members on the Ninth Circuit by the end of this year, all over Feinstein’s now powerless objections.

Feinstein had tried to make a last minute offer to the Trump Administration by publicly stating last week she would agree to seating Orange County Superior Court Judge and former Clinton-impeachment House Manager Jim Rogan to the Ninth Circuit, in return for also seating Nancy Koh, a Bay Area district court judge who had been nominated by Obama for the Ninth Circuit but whose nomination stalled in the Republican Senate. It appears that Senate Republicans and the Trump Administration didn’t think Rogan, a favorite of former “Never Trump” Republicans in California, or making a deal with Feinstein, who had held back Christy Blasey Ford’s letter against Brett Kavanaugh until the last minute and which was disclosed without Ford’s approval, was worth it. The result is that Feinstein was totally and completely cut out of the recent successful action moving three new Republicans forward to help remake the liberal Ninth Circuit, and that Feinstein was undercut by her own Senate leader in that process. Senate Republicans are still fuming over Feinstein’s role in attempting to derail that Kavanaugh confirmation, and their recent actions prove it. With Republicans looking to continue and perhaps even increase their control of the Senate as a result of the upcoming midterm elections, Ranking Member Feinstein’s influence on the Federal judiciary nationwide and especially in California appear deader than a doornail.