"Originalism" and the Bumatay Vote Tomorrow
Updated: Dec 10, 2019
Here's a simple question:
Should conservative and constitutionalist Senators vote for a judicial nominee who claims to be an originalist but who is a member of an anti-originalist legal group that promotes judicial activism?
The easy answer is "No."
Here's another very simple question:
Should conservative and constitutionalist Senators vote for a judicial nominee who claims to be an originalist but who is a member of an anti-originalist legal group that believes Courts should force Christians to bake wedding cakes for LGBTQ "weddings?"
Again, the easy answer is "no." The Senate just decided to advance a nominee with that record - Patrick Bumatay - to a final vote tomorrow.
Bumatay claims to be an originalist, but has never been a judge and, therefore, it is important to learn more about his record.
Since 2017, he has been a member of the Tom Homann LGBT Law Association (THLA).
Bumatay remains a member right now, even after he admits he is fully aware of their truly radical anti-constitutionalist agenda of placing LGBT activist judges on the courts as outlined below.
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.)
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.)
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.)
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.)
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.)
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.
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.”
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.”
If Bumatay remains a member of the THLA tomorrow, this is an easy decision: every conservative and constitutionalist Senator should vote against his confirmation.
Respectfully, Phillip L. Jauregui
Judicial Action Group
 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
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).
 Id. at page 14. (Emphasis added).
 https://www.thla.org/thlas-response-to-the-decision-in-masterpiece-cakeshop/ (Emphasis added).
 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).
 Id. (Emphasis added.)
 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.
 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.)
Respectfully, Phillip L. Jauregui
Judicial Action Group