5 things to know about the 9th Circuit
A key Republican senator expressed “confidence” in Kenneth Lee’s nomination to the 9th Circuit Court of Appeals in California despite the Los Angeles-based lawyer’s controversial past writing on race, gender and affirmative action.
Sen. Tim Scott of South Carolina — who has previously opposed other judicial nominees with fraught histories on race — told McClatchy in an interview Wednesday morning that Lee “has the type of body of work that makes me very confident in his candidacy.”
Scott’s remarks are a blow to California Sens. Dianne Feinstein and Kamala Harris, who have been laboring to convince their Republican colleagues to block Lee from being seated. On Monday, they called on Senate Judiciary Committee Chairman Lindsey Graham, also of South Carolina, not to move forward with Lee’s hearing.
Support from Scott — who holds significant influence over GOP colleagues — would all but guarantee Lee’s confirmation.
Scott, the Senate’s only black Republican, was the decisive vote in thwarting the nominations of two other potential federal judges – Ryan Bounds for the 9th Circuit and Thomas Farr for the Eastern District of North Carolina – who were mired in similar controversies about how their past positions and comments on issues of race would affect their rulings on the federal bench.
Critics of Lee on Capitol Hill and in the liberal activist community have sought to paint him as similar to Bounds and Farr. They have argued that if Scott opposed those two nominees he ought to oppose Lee, too. But Scott said Wednesday that there is a key difference with Lee, with whom he has met.
Unlike with Bounds and Farr, he saw evidence that Lee has evolved over the course of his career.
“One of the things that happened with both Farr and Bounds is that, when you look at the history of their work, from the time of the controversy forward, it was really a blank canvas,” said Scott. “I asked Ryan Bounds to show me evidence of transformation, evidence of self-awareness. He had one example in 20 years … Whereas I talked to Kenneth Lee, Kenneth had example after example after example.”
Scott said he was impressed with Lee’s pro bono representation of incarcerated people of color and his mentorship of minority and women lawyers.
Testifying before the Senate Judiciary Committee on Wednesday, Lee repeatedly disavowed several of the most controversial statements he made in articles he wrote as a young man.
Among them: dismissing claims of race and gender discrimination. “Cries of racism often stem from isolated incidents or unreliable studies,” he wrote in the Cornell Review, a conservative student paper, in 1993. “Charges of sexism often amount to nothing but irrelevant pouting.”
He also lambasted Cornell, in multiple articles, for its racial diversity initiatives and argued in a 1995 American Enterprise piece that affirmative action programs at colleges weren’t aimed at “boosting the disadvantaged but rather building a publishable box score of enrollment by race that conforms to liberal decorum and the demands of the gene-counters.”
Lee told Feinstein, the senior Democrat on the committee, he was “embarrassed” by one article he wrote for a conservative college newspaper in 1994, in which he claimed “nine out 10 people with AIDS are gay or drug users.”
“I truly regret writing that” Lee said.
Asked he if still holds the views he laid out in another piece questioning the credibility of women who accused a college professor of sexual harassment, Lee replied, “I do not.”
“I think when I was young, my views weren’t nuanced,” Lee explained at another point. He also blamed a “lack of maturity.”
That did not appear to satisfy California’s two senators. Harris pointed out that Lee has made controversial assertions in articles published last decade, after he become an attorney, on subjects ranging from voting rights to immigration.
But unless Democrats can convince two Republicans to break with their party and vote against Lee, he will be confirmed regardless of where the home state senators stand.
That’s a break from past practice. Traditionally, the Senate has not considered judicial nominees who did not receive what’s known as a “blue slip” from both senators that represent the state where the court is based. Senate Republicans, at the Trump administration’s urging, have brushed aside that tradition in several cases, moving forward with a nominee absent one or both of the home state senators’ blessing.
Neither Feinstein nor Harris have returned their blue slips for Lee or Daniel Collins, another Los Angeles-based attorney that President Donald Trump has nominated for a 9th Circuit Appeals Court vacancy.
“I think there’s been a lot of consultation here,” Graham said at Wednesday’s hearing. “From my point of view, I think it’s time to move on.”
Feinstein retorted: “Around here, what goes around comes around. And the blue slip in the 25 years I’ve been on this committee has been an effective way to ensure that home state senators, regardless of party have a say on the nominees … whose decisions will directly impact their constituents.”
The 9th Circuit’s decisions affect California’s millions of residents, as well as residents of Washington, Oregon, Nevada, Idaho, Montana, Arizona, Alaska and Hawaii.
It’s a particular target for conservatives, and a frequent foil for President Trump over his first two years in office. The president recently complained that “you cannot win — if you’re us — a case in the 9th Circuit and I think it’s a disgrace. “
The court has struck down several of the White House’s most controversial policies, including the president’s travel ban on people from several Muslim-majority countries and the White House’s attempts to withhold federal funds from sanctuary cities.