Bench Memos

Law & the Courts

Beyond the Bounds of Fairness

On Wednesday, the Senate Judiciary Committee will finally hold a hearing on President Trump’s nomination of federal prosecutor Ryan W. Bounds to a vacancy on the Ninth Circuit. Trump nominated Bounds eight months ago. Bounds is a former law clerk to Ninth Circuit judge Diarmuid O’Scannlain and would fill the nominal Oregon seat that O’Scannlain vacated when he took senior status at the end of 2016.

Democratic senators Ron Wyden and Jeff Merkley, along with Republican House member Greg Walden, formed a selection committee to rank candidates for federal judicial vacancies in Oregon. According to this February 2018 letter from Wyden and Merkley to White House counsel Don McGahn, the selection committee “consisted of eight highly experienced and diverse Oregon attorneys” who “carefully reviewed the applications of all the judicial candidates” and interviewed the finalists. Bounds emerged from this process as one of the selection committee’s “four highest ranked candidates” (“listed in alphabetical order”) for the very position to which Trump nominated him.

You’d think that the fact that the Wyden-Merkley selection committee ranked Bounds as one of the very top candidates would stand him in good stead with them. But Wyden and Merkley have not only declined to support his nomination and even returned negative blue slips on his nomination. They’ve also resorted to smearing him for a supposed “lack of honesty” in allegedly having “failed to disclose” to the selection committee “inflammatory writings revealing his archaic and alarming views about sexual assault, the rights of workers, people of color, and the LGBTQ community.”

First, on the alleged failure to disclose: As Wyden and Merkley surely know, it was Wyden’s own staffer who informed Bounds by email that providing to the selection committee only his writings “going back as far as law school would be great.” All of Bounds’s contested articles were from his college days. So far from displaying a “lack of honesty,” Bounds fully complied with the request from Wyden’s own office.

Further, lest you mistakenly think that Bounds was trying to conceal those articles, I will highlight that he supplied them all to the Senate Judiciary Committee as part of his Senate questionnaire response.

Second, on these oh-so-“inflammatory” writings, here is the Alliance for Justice’s account (verbatim bullet points) of what it finds Bounds’s most troubling statements from some twenty-five years ago:

  • Bounds wrote critically about “strident racial factions in the student body” and their work to “build tolerance” and “promote diversity.” He went on to claim that the efforts of these students “seem always to contribute more to restricting consciousness, aggravating intolerance, and pigeonholing cultural identities than many a Nazi bookburning.”
  • Bounds complained about multicultural organizations at the university who “divide up by race for their feel-good ethnic hoedowns.”
  • Bounds wrote that “race-focused groups” should not continue on campus, claiming that the “existence of ethnic organizations is no inevitable prerequisite to maintaining a diverse community—white students, after all, seem to be doing all right without an Aryan Student Union.”
  • Using racist and offensive language, Bounds claimed that there were communities on campus who believed that the “opponent is the white male and his coterie of meanspirited lackeys: ‘oreos,’ ‘twinkies,’ ‘coconuts,’ and the like.”
  • Similarly, Bounds accused campus “race-thinkers” of denigrating African-Americans as “oreos,” “Uncle Toms” or “sell-outs” if they rejected “victimhood status.”
  • Bounds wrote condescendingly and dismissively about sexual assault on campus and argued that to identify and punish alleged perpetrators, the university should maintain the ironclad “beyond a reasonable doubt” standard of proof used by law enforcement. He wrote: “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 decried “sensitivity” towards racial minorities and the LGBTQ community, and activism by those communities as a “pestilence” that “stalks us” and “threatens to corrupt our scholastic experience.”
  • Bounds served as opinion editor of The Stanford Review, and during his tenure a feature of the opinion page, “Smoke Signals,” began using a crude caricature of a Native American figure even though the university had discontinued using the “Indians” mascot more than twenty years earlier in response to complaints from Native American groups.  Stanford University President Gerhard Casper and Provost Condoleezza Rice both criticized the Review for using the image.

In short, as David Lat has summed it up, Bounds “poked fun at the excesses of political correctness” but has instead been “tar[red]” by Wyden and Merkley as supposedly being “biased against minorities, women and gays.” One need not go as far as Lat in thinking that a person’s college writings should be entirely off limits in order to conclude that they shouldn’t be presumed to reflect the character of the person twenty-five years later. Indeed, as Lat points out, Bounds has apologized, probably excessively, for the tone and sentiments of his college writings. (Lat himself writes, “I don’t think there was really much to apologize for.” I agree.)

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