Bench Memos

Law & the Courts

Smears Against Judicial Nominees Continue

Outside the Ninth Circuit Court of Appeals in San Francisco, Calif. (Noah Berger/Reuters)

Senate Democrats have discovered what they believe to be a winning formula to thwart President Trump’s judicial nominees: distorting one’s college writings in smear campaigns.  After launching similar attacks against Brett Kavanaugh and Neomi Rao, the left’s newest victim is Ken Lee, President Trump’s nominee to the Ninth Circuit from California.

I’ve previously discussed Ken Lee’s impressive credentials, but I will briefly recount them again here.  Mr. Lee is a graduate of both Cornell University (Phi Beta Kappa) and Harvard Law School (magna cum laude).  After graduating from law school, he clerked for Judge Emilio Garza of the U.S. Court of Appeals for the Fifth Circuit. He has been a partner in Jenner & Block’s Los Angeles office for the last decade, where he has amassed extensive litigation experience, including in the federal appellate courts.  He is also a former Associate White House counsel, serving in George W. Bush’s administration.

Mr. Lee is also Asian and an immigrant.  He moved with his family to Los Angeles when he was four years old, shortly after the military coup in South Korea, knowing no English.  His parents built a life for their family from the ground up.  His father, a highly educated engineer in South Korea, could only get a job repairing spray paint equipment in the United States. His mother was an acupuncturist.  Mr. Lee and his three sisters attended public schools in Los Angeles and learned English by watching American television.

Mr. Lee’s experience as a racial minority and first-generation American shaped his worldview and lead to a deep distrust of identity politics.  Recall that Rao felt similarly about identity politics, wrote about it in college, and faced a torrent of criticism from movement liberals who have made identity politics their bread and butter.

As a student at Cornell University, Mr. Lee was even more prolific.  He not only wrote for the Cornell Review, the school’s conservative and libertarian newspaper, but served as its editor-in-chief.  Besides committing more thoughts to paper at that young age, his writing displayed the bluntness so often displayed by student commentators, whether or not they were destined for a circuit court nomination.

For example, in an article titled “Separate & Unequal: Segregation on Campus,” he took offense to “ethnic theme houses” and “separate study lounges” (also a subject of Rao’s ire as a student) with the following observation:

The same universities that enact affirmative action programs to foster diversity and mutual understanding also encourage self-segregation along ethnic lines.  Their motivations arise partly in response to intimidation, and partly from well-intentioned but misguided liberal paternalism.

Several other articles strike a related theme of arguing why affirmative action policies are counterproductive and cautioned against what he called “victimization culture” or the “victimization mentality.” He included in his critiques Asian students groups on the left who “felt a need to portray themselves as oppressed to participate in a pernicious ethnic spoils system.”  He acknowledged the existence of racism, but regretted that “too many falsely view racism in every problem.”

Other college articles took issue with political correctness and other aspects of identity politics in language that was blunt, but also strove for a mix of the funny and self-deprecating, which should not come as a surprise at that age.

Not unlike Rao, after his days as a student were over, Mr. Lee’s writings reflected the maturity one would expect of the accomplished and respected attorney he became at a relatively young age.  This is evident beyond his writings.  He garnered the support of liberal colleagues, demonstrated a commitment to mentoring other minorities in the legal profession, and five years ago was named by California’s largest legal newspaper, the Daily Journal, as one of the state’s top 20 lawyers under 40.

Now nearly 20 years after graduating from law school, Mr. Lee is known as dedicated mentor, especially to young minority attorneys.  Far from the caricature painted by those who smear him, he is an active member of the diversity and inclusion committee of Jenner & Block in Los Angeles.  One of Mr. Lee’s law firm colleagues, David Russell, detailed how Lee has worked “to promote the careers of minority attorneys” and described him as “a great mentor.”  For these contributions, Mr. Lee was named “Mentor of the Year” in 2014.

Mr. Lee also has an extensive record of pro bono service.  Mr. Lee has defended a black inmate who alleged that he was abused by state correctional officers; a black man who alleged that he was beaten by police officers after a traffic stop; and a California death row inmate who unsuccessfully sought DNA testing from the state in an effort to vindicate himself.  He has also represented pro bono the Oakland Alliance of Black Educators and Los Angeles Urban League in an education rights case.

When he faces the committee for a hearing, I expect that in his maturity, he will explain why, like Rao and so many others of a certain age, he thinks and communicates differently now from the student he was a generation ago.  Do not expect him to get any credit from his home-state senators or anyone else on their side of the aisle.  They will operate from their tired playbook, grandstand in high dudgeon, and continue their corruption of the advice and consent process.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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