Ninth Circuit Nominee Overcomes Home-State Objections

WASHINGTON (CN) – The Senate Judiciary Committee on Thursday approved President Donald Trump’s choice for a seat on the Ninth Circuit, despite the objections of both of the nominee’s home-state senators.

Ryan Bounds, a federal prosecutor in Portland, Ore., cleared the committee in a party-line 11-10 vote on Thursday morning, despite Oregon Sens. Ron Wyden and Jeff Merkley refusing to sign off on his nomination.

Under a tradition known as the blue slip, both home state senators typically must give their approval before a nominee can receive a hearing before the Senate Judiciary Committee.

Sen. Chuck Grassley, the Iowa Republican who chairs the committee, has said his blue slip policy will not allow senators to hold up circuit court nominees unless they are able to show the White House did not consult with them on the nomination.

In a letter sent to the White House after Bounds was nominated, Wyden and Merkley said it was clear the administration was set on Bounds from the beginning, with no respect for the recommendations of a bipartisan nominating committee the senators convened to evaluate candidates to fill judicial vacancies.

The Oregon committee recommended Bounds after Trump nominated him, but Wyden and Merkley, both Democrats, say Bounds misled the group by not turning over controversial op-eds he wrote for a conservative student newspaper when he was an undergrad at Stanford University.

Wyden has said a majority of nominating commission members have since said they would not have recommended Bounds had they known about the articles.

In written responses to questions submitted after his nomination hearing, Bounds said while he was aware Oregon had a judicial selection committee for positions on federal district courts, he did not know it also chose judges to fill vacancies on the Ninth Circuit.

Bounds also told senators the articles were publicly available and that based on conversations with Wyden’s staff, he thought he only had to turn over anything he published after he started law school.

He pointed out that Wyden supported the nomination of Ninth Circuit Judge Susan Graber during the Clinton administration even though she said in her Judiciary Committee questionnaire that Oregon had no selection committee for circuit court nominees.

Bounds appeared before the committee in May for a nomination hearing, giving Democrats the chance to drill into the op-eds, in which Bounds was separately critical of student groups focused on racial issues and the university’s policy regarding the standard of proof necessary to punish students accused of sexual assault or rape.

“But there is really nothing inherently wrong with the university failing to punish an alleged rapist — regardless of his guilt — in the absence of adequate certainty; there is nothing that the university can do to objectively ensure that the rapist does not strike again,” Bounds wrote in 1994. “Only the legal system can do that, and if it lacks the certainty to do so, it is not necessarily up to the university to stick it to the suspect, anyway, just in case. Expelling students is probably not going to contribute a great deal towards a rape victim’s recovery; there is no moral imperative to risk egregious error in doing so.”

In a 1995 article he said student groups focused on racial issues on campus “contribute more to restricting consciousness” than “many a Nazi bookburning.”

Bounds apologized for the “overheated, overbroad” rhetoric he used in the opinion pieces and insisted he was not trying to dupe the Oregon judicial nominating committee by not revealing them.

“As I testified, I regret the overheated, hyperbolic and juvenile rhetoric in the articles in question,” Bounds wrote to senators in response to written questions submitted after his nomination hearing. “They strained to provoke rather than persuade and they were insufficiently respectful of the fellow students whose views and actions I was criticizing. I apologize for that. I would not have written and have not written anything of the sort since leaving college. Those articles are inconsistent with the collaborative spirit in which I have worked to advance our society’s goals of diversity and inclusiveness throughout my adult life.”

In defending against concerns Democrats raised about the writings, Bounds noted he chaired the Multnomah Bar Association’s Equity, Diversity and Inclusion Committee and helped start a fellowship program for college students from groups underrepresented in the legal field. He resigned from the bar association committee after his Stanford writings came to light.

At Thursday’s Judiciary Committee vote, California Sen. Dianne Feinstein, the top Democrat on the committee, said she could not support Bounds without the approval of his home state senators and given the controversy surrounding his transparency with the nominating commission.

“I believe it matters a great deal what Senators Wyden and Merkley think,” Feinstein said Thursday. “It matters because the citizens of Oregon, like the citizens of Iowa, Utah, South Carolina or California, expect their senators to represent their state’s best interests. Senators Wyden and Merkley are best able to reflect their home state’s interests.”

Sen. Sheldon Whitehouse, D-R.I., said Grassley’s decision to proceed on a nomination without the approval of both home state senators could lead to the abandonment of the tradition that certain seats on federal appeals courts belong to specific states.

“What makes this an Oregon seat on the Ninth Circuit?” Whitehouse asked Thursday. “It’s not an Oregon seat on the Ninth Circuit by law. It’s not an Oregon seat on the Ninth Circuit by the administrative office of the courts. It’s an Oregon seat on the Ninth Circuit because we honor each other’s blue slips and we have developed the tradition that different seats on different circuits are assigned to different states.”

But Grassley said he believes Wyden and Merkley had their chance to sway the White House on the vacancy and that he would not let them spike Bounds’ nomination on purely ideological grounds.

“I am satisfied that the White House adequately consulted with the home-state senators and I’ve stated that I will not let home-state senators have ideological reasons for not returning the blue slip,” Grassley said.

A member of the conservative Federalist Society, Bounds has worked as a federal prosecutor since 2009, starting in Washington D.C., before moving to Portland in 2010. Before becoming a prosecutor, Bounds worked as special assistant to the president for domestic policy in the Bush White House.

He also served in various roles in the Justice Department from 2004 to 2010 and spent four years as a litigation associate at the Portland firm Stoel Rives.

The committee approved five other judicial nominees on Thursday, four to federal district courts and one to the Court of Federal Claims.

This included Texas Deputy Solicitor General Campbell Barker, who is nominated to serve on the U.S. District Court for the Eastern District of Texas. Democrats opposed Barker primarily because he worked on cases that advocated conservative legal positions while he was serving as a lawyer for the state.

Sen. John Cornyn, R-Texas, argued against the claims that the positions Barker advocated while working for the government should disqualify him for a seat on a federal court, saying such logic would make it difficult for people like public defenders to ever win approval from the Senate.

“We can’t be disqualifying people based on the legal position that a client is taking,” Cornyn said Thursday.

Barker has worked as Texas’ deputy solicitor general since 2015, having previously worked as an associate and partner at the Houston firm Yetter Coleman. He also spent time as a trial attorney with the Justice Department’s criminal division.

Maureen Ohlhausen, who is up for a seat on the Court of Federal Claims, faced similar opposition from Democrats, who expressed concerns about her experience and preparedness for the job.

A commissioner for the Federal Trade Commission since 2012, Ohlhausen told the committee she has never tried a case to verdict or judgment.

When faced with questions about her experience, Ohlhausen noted she clerked for a judge on the Court of Federal Claims from 1991 to 1992 and that her “quasi-judicial” role at the FTC has given her the opportunity to rule on “dozens of motions” and hear oral arguments.

“Thus, although I have not participated in hearings in federal court on behalf of a client, I believe my experience leading a federal law enforcement agency and ruling on many motions and merits matters in a quasi-judicial role, representing the U.S. in a variety of matters, and serving in the federal court system make me qualified to join the Court of Federal Claims,” Ohlhausen wrote in response to written questions submitted after her nomination hearing.

But her answer did not assuage the concerns of Democrats. The committee approved her nomination 11-10, with all Democrats in opposition and all Republicans in favor.

A member of the Federalist Society, Ohlhausen has had two stints at the FTC, starting in 1997 when she was an attorney in the Office of General Counsel. She later became attorney advisor to Commissioner Orson Swindle, then served in the same role for the Office of Policy Planning. She became the director of the Office of Police Planning in 2004 and remained there until 2008.

She then moved to the Washington D.C., firm Wilkinson Barker Knauer, working as a partner from 2009 until 2012, when she returned to the Federal Trade Commission as a commissioner. She became the agency’s acting chairman in 2017.

The committee also approved U.S. District Court for the Eastern District of Texas nominee Jeremy Kernodle by a 14-17 vote.

Kernodle has worked at the Dallas firm Haynes Boone since 2006, having previously spent 2005 and 2006 at the Office of Legal Counsel in the Bush Justice Department.

The final two nominees the committee approved on Thursday were Susan Brnovich, who is up for a seat on the U.S. District Court for the District of Arizona, and Chad Kenney, who is nominated to a seat on the U.S. District Court for the Eastern District of Pennsylvania. Both received unanimous approval from the committee Thursday.

All nominees must still receive approval from the full Senate before they can take a seat on their courts.

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