Ninth Circuit nominee Ryan Bounds’ May 9 confirmation hearing—which was held over the objections of both of his home state senators—was an adventure in obfuscation. Bounds failed to meet his burden of demonstrating his qualifications for being given a lifetime position on a powerful circuit court. Instead, he rewrote history and avoided answering questions.
Democratic senators were deeply concerned about the extremely inflammatory articles Bounds wrote when he was in college. These writings evidenced a fundamental misunderstanding of—or even hostility toward—his fellow students who were members of communities that have long been subjected to systemic discrimination.
Apologizing for their “high-handed and overheated tone,” Bounds said:
But I want to make sure that there’s no misconstruction about the intentions behind those columns, which was always to seek greater tolerance and mutual understanding on campus and a way of celebrating diversity that everyone could participate in.
Sounds great—but the explanation does not comport with reality. The problem with the articles is not just the tone, it’s the substance. It’s an inability or unwillingness to understand that members of marginalized communities have lived their entire lives being treated differently (and worse) than him due to discrimination embedded deep in our society. This discrimination is not as visible as a lynching or a segregated water fountain—and no one is accusing him of being a Jim Crow segregationist—but its very invisibility to many who don’t experience it makes it hard to eradicate. When judges are blind to it, the consequences can be devastating—even fatal, in the criminal justice context.
Here are a couple of past examples of what Bounds calls his effort to seek greater tolerance and mutual understanding:
The existence of ethnic organizations is no inevitable prerequisite to maintaining a diverse university community – white students, after all, seem to be doing all right without an Aryan Student Union.
and
I am mystified because these tactics [of those promoting multiculturalism] seem always to contribute more to restricting consciousness, aggravating intolerance, and pigeonholing cultural identities than many a Nazi bookburning.
Furthering “greater tolerance and mutual understanding” seemed to be the last thing on his mind.
His writings on sexual assault are equally disturbing. The campus was debating whether the university should change its “beyond a reasonable doubt” standard in disciplinary hearings against accused assaulters. He argued that the high standard is needed to protect students who are innocent, but his arguments are completely dismissive of those who disagree, labeling them “battle-scarred P.C. warrior[s].” He added:
Emasculating our burden of proof in the interest of eradicating all hints of antisocial behavior in our community is presumptively invalid, not because students entertain some innate fidelity to ‘beyond a reasonable doubt’ (a standard that is not used in most civil cases in the U.S.), but simply because they did not come to Stanford University to be parented or morally reared.
…Expelling students is probably not going to contribute a great deal toward a rape victim’s recovery; there is no moral imperative to risk egregious error in doing so.
Bounds is wrong to dismiss this as a matter of “political correctness.” Regardless of one’s position on the burden of proof, sexual assault is not merely “antisocial behavior.” And it is hard to believe that a man in his early 20s at Stanford University did not realize that the ongoing presence of one’s rapist just might have an emotional effect on the survivor. Women do not now and did not then go to Stanford University to be sexually assaulted.
And now, as Donald Trump’s nominee, he failed to address the substance of what he wrote in those articles. Even if his words were motivated “only” by ignorance and arrogance rather than animus, they undermine his ability to be a fair judge with no appearance of bias.
That might explain why Bounds chose not to share his articles with the bipartisan Federal Judicial Selection Advisory Committee established by Oregon Sens. Ron Wyden and Jeff Merkley to recommend potential nominees. Before applying, he apparently spoke with a Wyden staffer and asked how far back he should go in providing items he has written, and he was told to go back as far as law school. Bounds claims this exonerates him.
But he is wrong. The advisory commission hardly wanted to overlook material that it knew the Senate Judiciary Committee would find relevant. Just in case this wasn’t obvious, the advisory commission requested past writings using the exact same language as the Judiciary Committee's questionnaire without changing a word. Since it would be relevant to the Senate (which he acknowledged by submitting the articles with his questionnaire responses), it would be relevant to the Oregon commission. There was no need to call Sen. Wyden’s office unless perhaps the goal was to avoid submitting items that he thought would hurt his chances with the state commission but which he thought might not derail his nomination before a Trump-era GOP-majority Judiciary Committee.
But even if there were some doubt about how far back to go in response to that specific question, the application form also has a specific instruction to “[s]tate any other information which you regard as pertinent or appropriate to disclose.” So Bounds either deliberately hid his racially inflammatory college newspaper columns, or he somehow concluded that they were not pertinent to evaluating his record and his fitness to be a federal judge. Neither motivation speaks well of his qualifications to hold a lifetime position as a judge on the Ninth Circuit.
Even worse, he was apparently asked directly about such inflammatory articles. Speaking on the Senate floor the day before the hearing, Sen. Merkley stated:
The committee asked him if he had controversial writings or events in his life that he needed to disclose, and he said that he did not. He did not disclose them. This is not an ancient failure of integrity; this is an immediate, recent past failure of transparency and integrity.
Small wonder, then, that a supermajority of the advisory commission withdrew their recommendation when they finally had a chance to read the articles. In fact, the chair of the commission sent a letter to Sens. Wyden and Merkley:
I have heard from four members of the judicial selection committee specifically with regard to this omission. I can say with confidence that those four committee members as well as myself would not have ranked Mr. Bounds as we did had we known about these deeply troubling writings.
Mr. Bounds’ writings themselves are objectionable not only for the views they express, but for the intemperate and demeaning tone that he uses to express his opinion. Equally, if not more disturbing, Mr. Bounds failed to disclose these writings when specifically asked by the committee about his views on equity and diversity. Although he felt free to volunteer details about his life going back to childhood, he misled the committee in response to this important inquiry. For this reason, five of the seven committee members no longer recommend Mr. Bounds.
“He misled the committee.” That is a devastating indictment of someone seeking to become a judge, of all things.
Sen. Wyden explained that even after Bounds’ full record had come to light, the nominee had failed to resolve the concerns they raised:
He has had ample opportunity to clean up this mess, express remorse, and explain how his views have changed, but I haven’t seen it. The comments I have seen suggest Mr. Bounds views this as a matter of poor word choice and youthful indiscretion—an issue he can almost dismiss with a small wave of the hand. In my view, that is wrong…
So why would the White House, Senate Republicans, and conservative activists be so set on putting Bounds on the Ninth Circuit? Perhaps his leadership position in the Portland chapter of the Federalist Society provides a hint of how he will approach cases.
But he himself also provided an additional clue during his testimony. In particular, to the extent his supporters are seeking to fill the courts with judges who will limit or eliminate altogether abortion rights, LGBTQ equality, and the New Deal, his attempts to assure Sen. Blumenthal of his respect for precedent created more, not less, concern:
As a lower-court judge I would regard all Supreme Court precedents that have not been undermined by subsequent authorities as binding and correctly decided and I would apply them without reservation. [emphasis added]
In fact, it is bedrock law that no matter how much the Supreme Court may have eroded the foundations of one of its own precedents, lower courts are nonetheless bound to follow them to the letter. As a unanimous Court stated in 1997’s State Oil v. Khan:
Despite what Chief Judge Posner aptly described as Albrecht’s “infirmities, [and] its increasingly wobbly, moth-eaten foundations,” there remains the question whether Albrecht deserves continuing respect under the doctrine of stare decisis. The Court of Appeals was correct in applying that principle despite disagreement with Albrecht, for it is this Court’s prerogative alone to overrule one of its precedents. (internal citations removed)
If Bounds sees being a judge as an opportunity to undermine Supreme Court caselaw he and his conservative colleagues don’t approve of, that is yet one more indication that he is not qualified for a lifetime position on the bench.