Ninth Circuit Pick Confirmed Despite College Writings

WASHINGTON (CN) – The Senate confirmed a Los Angeles attorney to the Ninth Circuit on Wednesday, over concerns from Democrats about controversial writings from his time as a college student about sexual misconduct, affirmative action and other issues.

The James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals. (AP Photo/Ernest McGray)

Kenneth Lee, a partner at the firm Jenner & Block, earned confirmation in a 52-45 vote on Wednesday afternoon. Lee is the latest Trump judicial nominee who faced questions about articles he published as an undergrad on hot-button issues from race to sexual misconduct.

Lee apologized for the writings at his nomination hearing in March, saying he now realizes he was naive when he wrote the pieces.

“When you’re young, your views aren’t nuanced, you don’t understand the complexity of the world,” Lee told the Senate Judiciary Committee in March. “A lot of times you just base it on your narrow personal experience and as you get older you realize the world is bigger, it’s richer, it’s more complex than based on your narrow experiences you had as a kid and that’s one of the things I’ve learned as I’ve gotten older.”

In one of the pieces, Lee defended a professor at Cornell University who was accused by four female students of sexual misconduct. Lee wrote skeptically about the claims, wondering why the accusers did not come forward sooner and blaming the accusations on courses at the school that “propagated the pernicious view that all women are victims of the inexorable sexism inherent in our patriarchal society.”

When asked about the piece during his confirmation process, Lee said he has learned more about the issues surrounding allegations of sexual misconduct since writing the article and gained valuable perspective after getting married and having children.

He also said he earned particular clarity on the issue after a family member told him she was involved in an abusive relationship only as it was ending.

“Unfortunately, the culture at that time (and even still somewhat today) discouraged survivors from speaking out,” Lee wrote in response to questions submitted after his nomination hearing. “The #MeToo movement has been critical in encouraging and empowering survivors to speak out. It is an issue I care about deeply.” (Parentheses in original.)

In another piece from college, Lee was critical of affirmative action policies, a view he said came from a “grassroots level” feeling in the Asian-American community about the issue. An immigrant from South Korea, Lee said Asian-Americans at the time were very concerned that affirmative action policies were being used against them in college admissions.

Lee also said he regretted writing an article in which he called multiculturalism a “malodorous sickness” and another claiming that gay people “generally are more promiscuous than heterosexuals.”

California’s two Democratic senators, Dianne Feinstein and Kamala Harris, said Lee withheld the articles from their commissions that screen potential judicial nominees from the state. For his part, Lee said he “made a good faith effort” to turn over everything he could, even looking through his mother’s garage to find old writings.

He said he could not turn over some of the writings more quickly because they were not publicly available.

In a statement Wednesday, Feinstein said Lee is “far outside the legal mainstream.”

“Given the positions he has taken in dozens of articles – and given his failure to disclose writings to my commission and to the Judiciary Committee – I cannot support Mr. Lee’s nomination to the Ninth Circuit,” Feinstein said in the statement.

Before joining Jenner & Block in 2009, Lee worked as associate counsel and special assistant to the president during the George W. Bush administration. He also worked as special counsel to Pennsylvania Senator Arlen Specter on the Senate Judiciary Committee in 2005 and clerked for U.S. Circuit Judge Emilio Garza on the Fifth Circuit.

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