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Conservatives fear Trump will surrender on key judicial nominees

“Caving on the 9th Circuit Court of Appeals nominees burdens every GOP senator up for re-election in 2020 and may cost President Trump a significant percentage of the vote in key swing states,” said conservative talk radio host Hugh Hewitt. | Kirk Irwin/Getty Images

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Many on the right are afraid the president is making deals with Democrats over 9th Circuit judges.

Updated

For many of Donald Trump’s most ardent supporters, there has been no issue more important than stacking the federal bench with conservative judges. Many on the right are now fearing a retreat.

Concerns began to mount after the Wall Street Journal editorial board on Tuesday published an editorial accusing the White House of negotiating with California’s Democratic senators, Dianne Feinstein and Kamala Harris, to come up with a compromise list of nominees to the liberal 9th Circuit Court of Appeals, long a bogeyman to conservatives.

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Within 24 hours, the paper’s editorial had ricocheted across the right and sparked an outcry about another Trump surrender.

“Caving on the 9th Circuit Court of Appeals nominees burdens every GOP senator up for re-election in 2020 and may cost President Trump a significant percentage of the vote in key swing states like Arizona which lives under the far left Circuit majority’s rulings,” said conservative talk radio host Hugh Hewitt, who spent a significant portion of his show Wednesday morning discussing the issue.

Conservatives like Hewitt are focusing their anger on the new White House counsel, Pat Cipollone, who the Journal alleges has been leading negotiations with Feinstein and Harris. Cipollone’s predecessor, Don McGahn, made judicial nominations his top priority, helping to push through 29 federal circuit court nominees and put two Supreme Court justices on the bench.

The confirmations are an area of accomplishment that united an otherwise fractious Republican party during the president’s first two years in office. With special counsel Robert Mueller bearing down on Trump and Democrats preparing to launch a host of investigations, Cipollone’s job is likely to be more complicated than was McGahn’s. Whether his office can continue the muscular push for judicial nominees remains an open question.

The answer is likely to have big political implications for the president’s 2020 re-election. Trump won over many skeptical voters by promising to nominate conservative judges — even going so far as to release a list of potential Supreme Court nominees that he vowed to select from as a token of reassurance. The gesture paid off: Among the 21 percent of the electorate who said Supreme Court appointments were the most important issue, 56 percent voted for Trump while just 41 percent voted for his opponent, Hillary Clinton.

The Wall Street Journal suggested the White House was working on a deal with the Democrats in a bid to ease the path for any future Supreme Court nominee. Critics, however dismiss that as a pipe dream.

The White House did not immediately respond to a request for comment. By Wednesday evening, the White House renominated two of the three 9th Circuit candidates in question — Daniel Collins and Kenneth Lee, according to a source familiar with the situation — but did not intend to renominate Patrick Bumatay, who will be nominated to a seat on the district court in California. Dan Bress, currently a partner at Kirkland and Ellis and a former clerk to Justice Antonin Scalia, will be nominated instead of Bumatay.

A former administration official expressed dismay that the White House was “caving to Trump’s likely 2020 opponent” — a reference to Harris — “on the best one of the bunch.”

“This is really the ultimate betrayal,” this person said. “Many of us supported the president because of judges, and not just SCOTUS.”

Donald Trump

Losing conservatives for whom judicial nominations are the most important issue would be blow to the president’s 2020 campaign. The negotiations between the White House and the California senators are “shocking” and “very demoralizing” to Trump’s base of support, according to Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, which has spent nearly $ 15.5 million on television ads boosting the president’s court nominees. The latest spending came in the form of a $ 1.5 million ad buy urging Democrats to “swiftly confirm” them.

The Journal editorial set off a veritable panic on the right. Erick Erickson, the conservative columnist and talk radio host, accused Cipollone of going “behind the President’s back” and “trying to cut a deal that would put more progressives” on the bench. Brent Bozell, the president of the Media Research Center, wrote on Twitter, “POTUS has done a TERRIFIC job with judges. Constitutionalists couldn’t ask for more. Is his staff trying to undermine him to appease leftists in the Senate? They are giving away his strongest achievement!”

“This is the administration’s crown jewel — judicial nominations,” Severino said. “So it makes no sense to jeopardize that particularly for senators who have not been operating in good faith, one of whom may even be the president’s 2020 opponent.”

Ashley Schapitl, a spokesperson for Feinstein, said in a statement that Feinstein and Harris were “engaged in conversations with the White House about the 9th Circuit and district court vacancies.”

Harris said in a brief interview that she wasn’t aware of the editorial.

Although the White House did not renominate Bumatay to the Ninth Circuit, Feinstein and Harris nevertheless blasted the administration for re-nominating Lee and Collins.

“We made clear our opposition to these individuals and told the White House we wanted to work together to come to consensus on a new package of nominees,” the senators said in a joint statement. “Unfortunately, the White House is moving forward with three nominees to a circuit court who have no judicial experience.”

However, Feinstein and Harris added that they had “productive conversations” with the White House on district court vacancies and “found a balanced compromise.”

Alexandria Ocasio-Cortez

Feinstein and Harris have already stated their opposition to Trump’s judicial nominees to the 9th Circuit. In a statement last year Feinstein said Lee “failed to disclose to our judicial selection committees controversial writings on voting rights and affirmative action.”

Feinstein also blasted the White House at the time for not reaching an agreement with her earlier.

“I repeatedly told the White House I wanted to reach an agreement on a package of 9th Circuit nominees, but last night the White House moved forward without consulting me, picking controversial candidates from its initial list and another individual with no judicial experience who had not previously been suggested,” she said.

In a letter sent in October to Cipollone, Feinstein and Harris said they would be open to striking a deal to fill the 9th Circuit vacancies. The California senators said they’d support a package of nominees that included James Rogan, who was on the White House list, Judge Lucy Koh, who was on the senators’ list and a third candidate who would be discussed further.

An alternative proposal, senators wrote, would be for the White House to choose a candidate from their list for 9th Circuit, for the senators to choose a candidate from the White House list and for the two parties to agree on a third candidate.

Although the Wall Street Journal editorial is prompting concern that the White House may suffer a blowback on judicial nominees, Senate Republicans don’t appear worried — at least not yet. Sen. David Perdue (R-Ga.), who had lunch with Trump Sunday, questioned why the administration would make a deal with Democrats on judges.

“Why would we make a deal?” Perdue said. “We don’t need Democrats to confirm these judges, he’s bringing middle of the road people who are not activists, they’re supporters of the constitution and have great records. So it’s nonsensical to me that a deal would have to be struck.”

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