Congress

Are we asking judicial nominees to reveal too much? Experts say yes

Ryan Bounds seemed like a shoo-in judicial nominee on paper, but he's become highly controversial — thanks to incendiary material he wrote in college more than 20 years ago.

The Senate Judiciary Committee will begin deciding Wednesday if that material is indicative of who Bounds is today.

Regardless of the outcome, legal scholars agree on this much: Bounds' case illustrates how the judicial selection process has become unwieldy and invasive.

"What's next, are they going to request fourth grade book reports?" asked Michael McConnell, director of the Constitutional Law Center at Stanford Law School and a former federal circuit court judge..

Bounds was recommended by a bipartisan judicial selection committee, rated qualified by the American Bar Association and generally considered less conservative than his would-be predecessor on the U.S. Court of Appeals for the Ninth Circuit.

Then the 44-year-old prosecutor's college writings at Stanford University surfaced. The writings criticized race-focused groups and the university's punishment of students accused of rape.

"Whenever a group of white males happens to be at the same place at the same time, you can be sure that the foul stench of oppression and exploitation lingers in the air," reads one Bounds op-ed. "In contrast, ethnic centers, whose sole purpose is to bring together exclusive cliques of students to revel in racial purity, are so righteous that the mere mention of cutting their budgets incites turmoil on the grandest scale."

Bounds apologized and disavowed the writings in February, calling them the "ill-considered, tone-deaf, and mortifyingly insensitive pronouncements of one's youth." He said they did not reflect his thinking as an adult.

But the damage was done. Bounds' home-state senators, Oregon Democrats Ron Wyden and Jeff Merkley, said they would not support his nomination.

They accused him of failing to disclose the writings to the judicial selection committee, though Bounds did include them in the lengthy questionnaire he was required to submit to the Senate Judiciary Committee. Bounds included the title of the op-eds in the questionnaire and attached the texts, which is publicly available.

Requiring nominees to submit writings from their college days is a relatively new request, made more plausible by the Internet. But judicial scholars say just because it's possible to use writings from 20 or more years ago to judge a candidate does not mean the committee should.

"I wouldn't want to say never, but dragging up people's college writings is quite silly," said McConnell. "People do silly things when they're young. They do silly things when they're senators, apparently."

The questionnaire judicial nominees must fill out for the committee is extensive, asking for every panel and conference appearance, published written or edited articles, interviews with media, policy statements and lectures, and judicial decisions and case history.

McConnell, who was nominated in 2001, said he wrote a newspaper column in college but was never asked to produce those writings. If he had been, he said he's not even sure how he would find them.

Wyden said the issue with Bounds isn't only the college writings, but that he suspects Bounds purposely hid those writings from the Oregon judicial committee that vetted him.

Wyden told McClatchy that Bounds provided writings from high school and earlier in his college career that reflected more positively on him, but neglected to disclose the negative writings to another committee that considers potential nominees from Oregon.

"My gut tells me he thought this wasn't online, so he thought he could get away with not telling people about it," Wyden said.

"I think it is a question of character," he added.

Brian Wolfman, the director of a Georgetown Law School program on appellate courts, said senators should be able to request the college writings and consider them, but that accusations of hiding information requested in the questionnaire have become ridiculous.

"I was surprised at how detailed (the questionnaire) was when I first saw it," Wolfman said. "Throughout the 1990s, I went to so many conferences — I couldn't recall every single one. But then someone could find a recording of one you forgot online, and accuse you of lying."

President Donald Trump said that he encourages Senate Republicans to "go nuclear" during the Supreme Court nomination process for Judge Neil Gorsuch, if they face pushback from Democrats.

Wolfman said the committee should give more leeway on issues that have undergone a significant cultural shift since the writings were published.

He mentioned marriage equality as an example, saying someone could accuse a nominee of being homophobic for writings from the 1990s, though a significant amount of people have changed their views on the topic since then.

David Lat, a lawyer who founded Above The Law, a legal scholar blog, called on the Judiciary Committee to stop considering writings before law school. In a Wall Street Journal op-ed, he said, "Let him who did not embarrass himself in college cast the first stone."

"College is traditionally a time of experimentation and exploration. We adopt and discard ideas and try out different identities, sometimes in rapid succession," Lat wrote, pointing out that some of his own former writings could be seen as homophobic, even though now he identifies as a gay man. "But exploring them is how we learn about ourselves and acquire wisdom — how we grow up."

The American Bar Association Standing Committee on the Federal Judiciary does an exhaustive review of all nominated judicial candidates and does consider all writings.

Its evaluation is based solely on "professional qualifications" which includes integrity, professional competence, judicial temperament, intellectual capacity, judgment, writing and analytical abilities, knowledge of the law and breadth of professional experience.

The ABA considered Bounds qualified.

Kate Irby: 202-383-6071, @KateIrby
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