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26 Leaders Oppose the Confirmation of Bumatay

The following letter was sent to over 50 Senators


Leaders Opposing the Confirmation of

Patrick Bumatay

to the United States Court of Appeals for the Ninth Circuit


December 2, 2019


The Honorable Mitch McConnell

Leader, United States Senate

Washington, DC 20510


Re: Patrick Bumatay, Nominee to the United States Court of Appeals for the Ninth Circuit


Dear Leader McConnell,


Donald J. Trump, when campaigning for president, said, “I am looking to appoint judges very much in the mold of Justice Scalia.” Nothing in Patrick Bumatay’s written record demonstrates that he is a constitutionalist in the mold of Scalia. His past and present professional and legal associations are cause for great concern. This is why we oppose the nomination of Patrick Bumatay, nominee to the U.S. Court of Appeals for the Ninth Circuit.


Before detailing our concerns, it is important first to acknowledge the positive aspects of Bumatay’s record. By all accounts, he is a well-educated, well-liked, and well-versed attorney. He clerked for Judge Timothy Tymkovich,[i] has the support of former Attorney General Jeff Sessions[ii] (Bumatay was senior counsel to Rod Rosenstein.),[iii] and is a member of the Federalist Society.[iv] However, despite these positive credentials, there are two major concerns with his nomination.


First, there is little evidence in his written record that, if confirmed, he would be an originalist. Tragically, constitutionalists have learned from experience to insist on judicial nominees with a demonstrable record of fidelity to the Constitution. Over the past 50 years, Republicans have failed to nominate verifiably conservative judges. Accordingly, conservatives and constitutionalists have wisely adopted a “trust but verify” approach to judicial nominees that demands the nominee produce a demonstrable record of a constitutionally faithful judicial philosophy. Regretfully, Bumatay’s record does not sufficiently demonstrate that he would be a constitutionally faithful judge.


The second concern with Bumatay’s nomination is the fact that he has been a member – on and off over the past 12 years – of three liberal organizations that enjoy the use of judicial activism to implement their political agendas: DOJ Pride, Log Cabin Republicans, and the Tom Homann LGBT Law Association.


DOJ Pride


Bumatay was a member of DOJ Pride from 2008 – 2009. DOJ Pride promotes an odd form of tolerance in the workplace by requiring verbal affirmation – not just from its critics but also from those who would politely prefer not to comment on the LGBT agenda. DOJ Pride offers a publication for managers mandating that if an employee comes out as gay, the manager should neither judge nor remain silent. “Silence will be interpreted as disapproval.”[v]


Bumatay is no longer a member of DOJ Pride, but his former tenure with the group certainly raises concerns. Moreover, three years after he left DOJ Pride, he joined a similar group.


Log Cabin Republicans


Bumatay was a member of the Log Cabin Republicans of San Diego in 2012.[vi] Still today, Log Cabin Republicans (LCR) say he would be “an excellent addition to the court” and “a triumph for the LGBT community.” [vii] Sadly, the judicial philosophy of LCR is undeniably activist, and its members have consistently favored the judicial usurpation of legislative power to achieve the organization’s political goals. In 2015, LCR applauded the court’s judicially activist opinion in Obergefell v. Hodges solely because it furthered the organization’s political agenda.[viii] In the 2013 United States v. Windsor case, the Supreme Court struck down Congress’ Defense of Marriage Act with zero textual support in the Constitution, yet LCR hailed it as “a victory of conservative principles.”[ix]


Bumatay is no longer a part of LCR, but his tenure with the group raises concerns. Moreover, five years after he left LCR, he joined another similar group and remains a member of that group to this day.


Tom Homann LBGT Law Association.


Since 2017, Bumatay has been a member of the Tom Homann LGBT Law Association (THLA).[x] The Association has co-authored a report explaining that the federal courts are “the gateway” to achieving its liberal political agenda:

Federal courts issue decisions that affect nearly every aspect of life for LGBT people, and those courts often have the final say in many of the most important issues of the day. The federal courts provide the gateway for achieving broader civil rights victories by issuing findings of fact that frame the cases and legal issues going forward. (Emphasis added.)[xi]

Moreover, THLA works to place like-minded people from its “community” on the federal courts to implement that activist liberal agenda:

The LGBT community as a whole can make a difference by advocating for qualified LGBT judicial candidates during the judicial vetting process. ‘Many in the LGBT community feel that we simply need to do more. More political pressure, more lobbying, more identifying and mentoring our LGBT lawyers to become candidates for judges, and being more vocal about these issues. … When federal judge openings in our district come up, there has not been adequate pressure from our community to consider LGBT candidates. How can we expect the decision makers in the vetting and appointment process to listen if we as a community are not being loud and clear?(Emphasis added.)[xii]

Furthermore, the Association’s embrace of judicial activism is verified by its position on the Masterpiece Cakeshop case:

Ultimately, the case provides yet another example that our work for full LGBTQ equality is not done. On this Election Day, we hope that THLA members vote for candidates who support LGBTQ equality and continue to engage and be visible within our LGBTQ legal community. (Emphasis added.)[xiii]

After Bumatay’s Senate hearing, Sen. Mike Lee asked Bumatay to provide a written answer to the following question about his membership in the THLA:

How long have you been an active member of the Tom Homann Association? This association has publicly criticized recent Supreme Court decisions and takes active positions on questions currently unsettled in the courts. Were you aware of these public positions when you joined the association? If you are confirmed, will you faithfully and fully apply all binding Supreme Court precedent? (Emphasis added.)[xiv]

Bumatay’s answer confirms prior concerns and raises new ones. He states:

When I joined the Tom Homann Law Association in late 2017, I understood the group to be a community building and social networking organization for LGBT lawyers in the San Diego area. Since joining, the extent of my involvement has been attending two or three of their social functions.
Last month, I became aware of the group’s public positions on recent Supreme Court cases and other legal matters, especially in cases involving religious liberty. Religious liberty is a foundational right. Indeed, it is the first freedom of our Bill of Rights. If liberty means anything, it means that individuals should be able to live their lives and act according to their religious principles. The Supreme Court has vigorously protected religious liberty in recent terms, in cases such as Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), Trinity Lutheran Church of Columbia v. Comer, 137 S. Ct. 2012 (2017), and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). If confirmed, I will faithfully and fully apply these and all precedents of the Supreme Court.
Furthermore, if confirmed, I do not intend to be a member of any organization that takes positions on specific cases in litigation. Therefore, if confirmed, I intend to resign my membership in the group. (Emphasis added.)[xv]

Bumatay claims he did not know the activist positions of the THLA before he joined. Assuming that is the case, it would mean he did not properly vet the organization. Had he reviewed the THLA website he would have discovered their thorough embrace of judicial activism.


For example, when Bumatay joined the Tom Homann LGBT Law Association in 2017, he could have read the 2015 article noted above that stated THLA’s strategy was to use the courts as “the gateway” to advance its political agenda for achieving “broader civil rights.” Interestingly, the article also calls for “loud and clear” lobbying and placement of LGBT federal judges to accomplish their agenda through judicial activism.[xvi]


Moreover, Bumatay says that he joined the THLA in “late 2017” which was perhaps weeks after the group’s July 27, 2017 website announcement that it “unequivocally denounces President Donald J. Trump’s decision to ban those in our transgender community from serving our nation in our armed forces.” The group further condemned Trump’s Justice Department for defending the textual fact that “LGBTQ individuals are not protected from discrimination under Title VII of the Civil Rights Act.”[xvii]


Perhaps Bumatay disagrees with THLA on these matters, but he does not state that in his answer to Sen. Lee. To the contrary, he admits that he did in fact learn of THLA’s “public positions on recent Supreme Court cases and other legal matters” but does not state his disagreement with any of those matters. He does indicate he is in favor of “religious freedom” but does not refute or express his disagreement with any of the truly radical positions of THLA.


Furthermore, it would be naive for anyone to presume that Bumatay disagrees with the activist positions of THLA because he now admits he is aware of the group’s agenda and, nevertheless, remains a member. Perhaps a constitutionally faithful attorney might accidentally join an activist organization like THLA, but would one remain a member after knowing the group promotes and encourages judicial activism to further its liberal social agenda?


Finally, Bumatay says he will follow the precedents of the Supreme Court in Masterpiece Cakeshop and other cases, but that is what practically every nominee says. He also says individuals “should be able to live their lives and act according to their religious principles.” However, these statements certainly do not explain why Bumatay remains a member of THLA even after it called for “a different result” in the Masterpiece case – presumably one that would force a Christian baker to endorse the LGBT agenda. Worse yet, THLA says the Masterpiece case shows its “work for full LGBTQ equality is not done” and presumably will only be done when religious freedom is subjugated to the LGBTQ community. Would a constitutionalist remain a member of such an organization?


Bumatay voluntarily joined THLA and remains an active member to this day, even after he is now indisputably aware of the judicial activist agenda of the organization. He does say he intends to resign if he becomes a federal judge but not because he finds THLA’s agenda objectionable. He says he will resign only because he won’t be “a member of any organization that takes positions on specific cases in litigation.”


Conclusion


Patrick Bumatay is a well-educated and an experienced attorney. However, there are two major concerns with his nomination. First, Bumatay’s record before the Senate does not demonstrate that he would be a constitutionally faithful judge. Second, he has been a member – on and off over the past 12 years – of three very liberal organizations that enjoy the use of judicial activism to implement their political agendas.


Simply put, there are too many known risks with his nomination. His judicial philosophy is not well documented in his written verifiable record. If Bumatay were confirmed, no senator could honestly claim to be surprised if he simply furthered the well-documented activist judicial agendas of the organizations he has supported – and continues to support to this day. For these reasons, we regretfully but respectfully request that you vote against the confirmation of Patrick Bumatay to the United States Court of Appeals for the Ninth Circuit.


Sincerely,


Tim Wildmon

President, American Family Association*


Eunie Smith

President, Eagle Forum*


Linda Harvey

President, Mission America*


Mathew D. Staver, Esq., B.C.S.*

Founder and Chairman, Liberty Counsel*


Dr. Mike Rouse

President, American Association of Christian Schools*


Dr. Rick Scarborough

President, Recover America Now*


Rabbi Jonathan H. Hausman


William J. Olson

General Counsel, Conservative Legal Defense and Education Fund*


Judson Phillips

Founder, Tea Party Nation*


Troy Newman

President, Operation Rescue*


Allen Whitt

President, Family Policy Council*


Rod D. Martin

Founder and CEO, The Martin Organization, Inc.*


Kent Ostrander

Executive Director, The Family Foundation*


Ronald Konopaski

President - United for Life of Northern California*


Diane Gramley

President, American Family Association of Pennsylvania*


Sherri R. Martin

Executive Vice President, The Martin Organization, Inc.*


Christina Murphy Lusk

Campaign for the American Future*


Hon. Jerry Melvin

Former Dean, Florida House of Representatives*


Shawn Mitchell

Former Chaplain, National Federation of Republican Assemblies*


Haley E. Martin

President, The Martin Foundation*


Jason J. McGuire

Executive Director, New Yorkers for Constitutional Freedoms*


Kristin Fecteau

Co-Founder, Campaign to Free America*


John J Jakubczyk

Southwest Life & Law Center*

Chaplain Gordon Klingenschmitt, PhD

The Pray In Jesus Name Project*


Allan E. Parker, Jr. (JD)

President, The Justice Foundation*


Phillip L. Jauregui

President, Judicial Action Group*


* Organization listed for identification purposes only


[i] Bumatay Answer to Senate Judiciary Committee Questionnaire at 3.


[ii] Tim Ryan, Trump Continues to Reshape Ninth Circuit With Two New Picks, Courthouse News Service, Sept. 20, 2019; available at https://www.courthousenews.com/trump-continues-to-reshape-ninth-circuit-with-two-more-picks/


[iii] “He [Bumatay] has worked as senior counsel to Deputy Attorney General Rod Rosenstein (2017-2018).” Chad Felix Greene, Why Are Democrats Fighting The Judicial Nomination of a Qualified Gay Minority, The Federalist Jan, 25, 2019; available at https://thefederalist.com/2019/01/25/democrats-fighting-judicial-nomination-qualified-gay-minority/


[iv] Bumatay Answer to Senate Judiciary Committee Questionnaire at 4.


[v] The publication is titled “LGBT Inclusion at Work: The 7 Habits of Highly Effective Managers” See https://dojpride.files.wordpress.com/2014/04/for-viewing-online-lgbt-tips-for-managers-brochure-accessible-fina.pdf; referenced at the DOJ Pride website at: https://dojpride.org/about-2/.


[vi] In the months before Bumatay joined the LCR they repeatedly denigrated candidates for their socially conservative positions like Mike Huckabee, Herman Cain, Michele Bachmann, Rick Perry, and Rick Santorum while favoring liberal fringe candidates like Gary Johnson and Fred Karger for their liberal social positions.


[vii]LCR (LogCabinGOP), Twitter, (Oct 19, 2018, 6:32 AM).

https://twitter.com/logcabingop/status/1053277720849846272?lang=en., and Chris Johnson, Trump names openly gay judicial nominee – bringing total to 2, Washington Blade, Oct. 15, 2018; see

https://www.washingtonblade.com/2018/10/15/trump-names-2nd-openly-gay-judicial-nominee/.


[viii]“Today the Supreme Court of the United States finally recognized what Log Cabin Republicans has long advocated for: the constitutional right of committed same-sex couples to engage in civil marriage partnerships.” LCR, Log Cabin Republicans Response to Supreme Court Marriage Decision, June 26, 2015; see http://www.logcabin.org/pressrelease/log-cabin-republicans-response-to-supreme-court-marriage-decision/.


[ix]“Today’s ruling is a victory of conservative principles and admonishment of government overreach. … History is on our side, and the wind is at our backs. We’re not done yet — not by a long shot.” CLR, Log Cabin Republicans Responds to Supreme Court Marriage Rulings: “We’re Not Done Yet” June 26, 2013; see

http://www.logcabin.org/pressrelease/log-cabin-republicans-responds-to-supreme-court-marriage-rulings-were-not-done-yet/


[x] The Senate Judiciary Committee’s posted Answers of Bumatay to their Questionnaire continue to show that he presently remains a member of the THLA. Bumatay Answer to Senate Judiciary Committee Questionnaire at 5; available at https://www.judiciary.senate.gov/download/patrick-bumatay-sjq


[xi]Nicholas Fox, THLA Co-Authors Article on LGBT Judges in California Judiciary, July 14, 2015; originally posted at: https://thla.org/2015/07/thla-co-authors-article-on-lgbt-judges-in-california-judiciary/. However, the THLA removed the page from the web within the law few days. Thankfully, an archived copy of the page is available at https://web.archive.org/web/20150715042840/https://thla.org/2015/07/thla-co-authors-article-on-lgbt-judges-in-california-judiciary/. The reference article has also been removed; it was available at https://thla.org/wp-content/uploads/2015/07/2015-07-14-LGBT-Article.pdf at page 13 but is not available; a webcached content can be viewed at: https://webcache.googleusercontent.com/search?q=cache:_hrf5Gb6Sf4J:https://thla.org/wp-content/uploads/2015/07/2015-07-14-LGBT-Article.pdf+&cd=1&hl=en&ct=clnk&gl=us. A PDF of the article can be downloaded here: https://admin.afaaction.net:8443/media/20890/the-new-frontier-of-lgbt-equality-the-california-state-and-federal-judiciary.pdf. Copies of all referenced THLA webpages and articles are saved off-line. (Emphasis added).


[xii] Id. at page 14. (Emphasis added).


[xiii] https://www.thla.org/thlas-response-to-the-decision-in-masterpiece-cakeshop/ (Emphasis added).


[xiv] Patrick Bumatay, Answers to Questions for the Record from Senator Mike Lee, Nov. 5, 2019 at pages 54-55; https://www.judiciary.senate.gov/download/bumatay-responses-to-questions-for-the-record (emphasis added).


[xv] Id. (Emphasis added.)


[xvi] Nicholas Fox, THLA Co-Authors Article on LGBT Judges in California Judiciary, July 14, 2015; originally posted at: https://thla.org/2015/07/thla-co-authors-article-on-lgbt-judges-in-california-judiciary/. However, the THLA removed the page from the web within the law few days. Thankfully, an archived copy of the page is available at https://web.archive.org/web/20150715042840/https://thla.org/2015/07/thla-co-authors-article-on-lgbt-judges-in-california-judiciary/. The reference article has also been removed; it was available at https://thla.org/wp-content/uploads/2015/07/2015-07-14-LGBT-Article.pdf at page 13 but is not available; a webcached content can be viewed at: https://webcache.googleusercontent.com/search?q=cache:_hrf5Gb6Sf4J:https://thla.org/wp-content/uploads/2015/07/2015-07-14-LGBT-Article.pdf+&cd=1&hl=en&ct=clnk&gl=us (Emphasis added). Copies of all referenced THLA webpages and articles are saved off-line.


[xvii] Nicholas Fox, THLA Issues Statement on President’s Ban on Transgender Individuals in the Military, July 27, 2017; https://www.thla.org/issues-statement-presidents-ban-transgender-individuals-military/ (Emphasis added.)

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