Daniel Bress – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Like fellow nominee Dan Collins, Daniel Bress is also a former clerk for the late Justice Antonin Scalia and also faces the joint opposition of home state senators Dianne Feinstein and Kamala Harris.

Background

Daniel Aaron Bress was born in Hollister, CA in 1979.  Bress received an A.B. from Harvard in 2001 and a J.D. from the University of Virginia Law School in 2005.[1]  After graduating from law school, Bress clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Antonin Scalia on the U.S. Supreme Court, clerking alongside future Sen. Mike Lee, and future Sixth Circuit Judge Eric Murphy.[2] 

After his clerkships, Bress joined the San Francisco Office of Munger, Tolles & Olson LLP.  He left a year later to join Kirkland & Ellis in Washington D.C. where he has been a Partner since 2011.[3] 

Additionally, Bress has taught courses on textualism as a method of constitutional and statutory interpretation at the University of Virginia and Catholic University Law Schools.[4]

History of the Seat

Bress has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 18, 2017 when Judge Alex Kozinski resigned from the bench in the midst of heavy controversy.  On October 10, 2018, Trump nominated Patrick Bumatay, a federal prosecutor who would have been the first openly gay judge on the Ninth Circuit.  Based on a disagreement with California’s Senators, however, Bumatay was withdrawn and nominated to the U.S. District Court for the Southern District of California.

In May 2017, Bress was contacted by the White House to gauge his interest in an appointment to the Ninth Circuit.[5]  In late 2017 and early 2018, Bress interviewed with Advisory Committees set up by California’s Democratic Senators.[6]  Bress’ nomination was sent to the Senate on February 6, 2019.

Both of Bress’s home state senators, Sen. Dianne Feinstein and Sen. Kamala Harris, have expressed opposition to Bress’s nomination, citing Bress’ residence and career in DC and lack of ties to the California legal community.[7]

Political Activity & Memberships

Bress is a Republican who has donated to the campaigns of Mitt Romney, John McCain, and Sen. Jeff Flake.[8]  He was also a member of the D.C. Chapter of Lawyers for Romney in the 2012 elections.[9]

Furthermore, Bress has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 2003.[10] 

Legal Experience

Bress has spent his legal career as a civil litigator, most of it at the D.C. Office of Kirkland & Ellis.  Over the course of his 12 year legal career, Bress has not tried any cases to verdict but has participated in appellate matters before the U.S. Supreme Court and the federal courts of appeals.

Among the most notable cases he handled, Bress sued under California’s Parent Empowerment Act to challenge the denial of a petition to convert Palm Lane Elementary School (a public school) into a charter school.[11]  Bress, who handled the case on a pro bono basis, argued successfully that the school’s decision to reject the petition was arbitrary.[12]

In other cases, Bress is defending Honeywell Int’l in a suit against a government alleging that anti-ballistic products they manufactured were defective.[13]  He also represented an Alabama death row inmate in challenging an Alabama procedural rule on successive habeas petitions.[14]

Writings

Of Bress’ writings on the law, two are particularly notable.  As an associate at Munger, Bress coauthored an article alongside other Supreme Court clerks at the firm (including future Ninth Circuit Judge Michelle Freidland) on the death penalty.[15]  The article focused on Justice Stevens’ dissent from a 7-2 decision upholding Kentucky’s death penalty protocol in Baze v. Rees, and the changed position from Justice Stevens’ affirmation of the death penalty in Gregg v. Georgia thirty years earlier.[16]  The article posits that “constant exposure to the horrors of capital crimes and the utter finality of executions” motivated Stevens’ change in position.[17]

In the other notable article, authored as a law student, Bress argues that the inherent power of administrative agencies to reconsider their final decisions (barring any statutory authority) must be limited and proscribed.[18]

Overall Assessment

Bress may be the youngest of Trump’s three California nominees to the Ninth Circuit, but that’s not what makes him the most controversial.  Rather, the issue is geography.  Traditionally, circuit nominees have been tied to individual states within a circuit (and statutorily, each state is required to have at least one judge on a circuit).  Bress has been nominated to a California seat but has spent almost his entire legal career in Washington D.C.  In a Judiciary Committee meeting earlier this year, Chairman Lindsay Graham acknowledged the legitimacy of concerns regarding Bress’ ties to California.  Furthermore, Bress’ legal ties are primarily to the D.C. legal community and he resides in Alexandria, Virginia.  On the flip side, Bress has litigated in California courts, was born in California, and is a member of the state bar.  Nevertheless, the Alliance for Justice has already noted that Bress’ firm biography has been edited to emphasize California ties, suggesting that his supporters are concerned about the attack.[19]

Overall, Bress’ substitution for Bumatay suggests that the White House considered the former less controversial for an appellate seat.  In the unlikely event that Bress’ nomination is derailed by questions of geography, the White House could, in theory, substitute Bumatay back for the Ninth Circuit, giving the court its first openly gay judge.


[1] Sen. Comm. on the Judiciary, 115th Cong., Daniel Bress: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. at 3.

[4] Id. at 30.

[5] See id. at 33.

[6] Id.

[7] See Press Release, Office of Sen. Dianne Feinstein, Feinstein: Don’t Confirm a D.C. Lawyer to California’s Seat on Ninth Circuit (May 16, 2019); Press Release, Office of Sen. Kamala Harris, Harris on Trump’s Ninth Circuit Nominee: Daniel Bress Is Not a California Lawyer (May 17, 2019).

[8] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=daniel+bress&order=desc&sort=D (last visited May 21, 2019).

[9] See Bress, supra n. 1 at 12.

[10] See id. at 5.

[11] See Ochoa v. Anaheim City Sch. Dist., 11 Cal. App. 5th 209 (2017).

[12] Joseph Pimental and Roxana Kopetman, Court to Rule on Parents’ Charter School Demand, Chico Enterprise-Record, Mar. 2, 2017.

[13] United States v. Honeywell Int’l Inc., Case No. 08-cv-961 (D.D.C.).

[14] Kuenzel v. Alabama, 137 S. Ct. 375 (No. 16-213).

[15] Jeffrey Bleich, Aimee Feinberg, Michelle Freidland, Daniel Bress, and David Han, Change of Heart – Justice Stevens Reassesses the Death Penalty, 34 San Francisco Att’y 32 (Fall 2008).

[16] Id. 

[17] Id. at 34.

[18] Daniel Bress, Administrative Reconsideration, 91 Va. L. Rev. 1737 (Nov. 2005).

[19] Press Release, Alliance for Justice, Bress is Wrong for the Ninth Circuit (May 17, 2019).

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