Senate Confirms Ninth Circuit Judge for Second Time in a Week

by Tim Ryan, Court House News, May 21, 2019

WASHINGTON (CN) – The Senate confirmed a Los Angeles attorney Tuesday to a seat on the Ninth Circuit after he faced criticisms from Democrats over his record of representing fossil fuel companies in court, making him the second Trump nominee added to the San Francisco-based appeals court in a week.

Daniel Collins, a partner at the Los Angeles firm Munger, Tolles & Olson since 2003, earned confirmation with a 53-46 vote on Tuesday afternoon. He did not have the support of either Senator Dianne Feinstein or Senator Kamala Harris, both Democrats who represent California.

This would have doomed past judicial nominees under the tradition known as the blue slip, but the two most recent heads of the Senate Judiciary Committee, Senators Chuck Grassley, R-Iowa, and Lindsey Graham, R-S.C., have said the objections of home-state senators will not stall the confirmation process for nominees to federal circuit courts.

Collins is the second Trump nominee the Senate has confirmed to the Ninth Circuit in the past week, following Kenneth Lee, whom the Senate sent to the bench on Wednesday.

A member of the conservative Federalist Society, Collins worked as associate deputy attorney general at the Justice Department from 2001 to 2003 and as a federal prosecutor from 1992 to 1996.

Collins faced questions during his nomination process about his litigation history, in particular his work defending oil and gas companies in environmental cases. Collins represented Shell Oil Company in a lawsuit brought by a Native Alaskan village seeking to hold a collection of energy companies liable for the results of global warming.

The former clerk to Justice Antonin Scalia argued the case before the Ninth Circuit, which upheld a lower court’s decision to dismiss the case because it presented a political question that courts could not answer.

Collins also helped pen a friend-of-the-court brief for Chevron and other energy companies in a case eight states brought against the owners of fossil-fuel power plants over their greenhouse gas emissions.

Senator Sheldon Whitehouse, D-R.I., pressed Collins on this work during his nomination hearing in April, raising particular concerns about a filing in one of those cases that stated “climate change allegedly results from the aggregate effects of greenhouse gas emissions.”

When Whitehouse pressed Collins on the phrasing, Collins said he used the word “allegedly” because it is common for lawyers to use the word to describe claims made at that particular point in the life of a case.

When Whitehouse pressed him on whether carbon dioxide and other greenhouse gases cause global warming, Collins said it would not be appropriate for him to answer because he is still representing companies fighting climate change-related claims.

“In view of those current representations, I do not think that it would be appropriate for me to make personal comments on factual matters related to that pending litigation,” Collins wrote to Whitehouse in response to questions submitted after his nomination hearing.