Judicial Nominees And Their College Writings: Enough Is Enough
We need a statute of limitations when it comes to the scribblings of one's youth.
He might live to regret some of these words — and you know what? That’s part of growing up.
What’s the latest news regarding President Trump’s judicial nominees? It has been quite some time since my last roundup, but I expect to have an analysis of his twelfth wave of judicial nominees very soon.
For now, I’d like to raise another issue: should we judge the (aspiring) judges based on the intemperate musings of their youth? I argue in favor of a statute of limitations for youthful indiscretion, in a piece for the Wall Street Journal editorial page (of which I’m a fan; I might not be the loudest voice in Above the Law’s pages, especially given my new role at ATL, but I’m still here — and still more conservative than my colleagues).
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Here’s the start of my piece, “Give Amnesty for College Writings” (headline not mine but I like it, as both humorous and eye-catching for the WSJ’s conservative readership):
Senate Republicans staged a five-month filibuster in 2011-12 against Jesse Furman, whom President Obama had nominated as a New York-based trial judge. They didn’t question his qualifications but objected to his past writings, including a piece titled “Bang, Bang, You’re Dead! The NRA Supplied the Lead!” During his confirmation hearing, Mr. Furman said: “I wrote those words as an 18-year-old with no legal experience or training and, frankly, spoke with more confidence than was warranted.” The Senate eventually confirmed him.
And it’s great that they did. Furman has gone on to become one of the most highly respected members of one of the most highly respected trial courts in the country, the Southern District of New York. (I actually had this in an earlier draft of the piece, but one of the downsides of print — which is wonderful in many ways — is limited space.)
The op-ed continues:
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Now the tables are turned. Ryan Bounds — like Judge Furman a Yale Law graduate, former federal law clerk, and federal prosecutor — has been nominated to the Ninth U.S. Circuit Court of Appeals. But the senators from Mr. Bounds’s home state, Democrats Ron Wyden and Jeff Merkley, are blocking his nomination.
As in Judge Furman’s case, the senators do not question his qualifications — which would be awkward, since their own judicial selection committee recommended him.
And the American Bar Association’s Committee on the Judiciary unanimously declared Bounds qualified for the post as well. But that’s not enough for Senators Merkley and Wyden:
[T]aking their cues from the Alliance for Justice and other liberal interest groups, the senators cite a handful of op-eds Mr. Bounds wrote almost 25 years ago as a Stanford undergraduate. Mr. Bounds poked fun at the excesses of political correctness, for which the senators tar him as biased against minorities, women and gays.
Anyone who reads the articles or knows Mr. Bounds — as I have for more than 20 years, dating back to law school — knows these charges lack merit. But there’s a bigger point: Collegiate scribblings from decades ago should have no bearing on one’s fitness for public office, and making an issue of them is bad for the country.
If you’re interested in reading more about the specific controversy over Ryan Bounds and his college op-eds — which he has disavowed and apologized for (even though I don’t think there was really much to apologize for) — see this op-ed for the Oregonian that I co-authored with prominent Portland lawyer Courtney Angeli. As members of the groups that Bounds supposedly harbors bias for, we can confidently state that he is deeply committed to advancing diversity in the legal profession — as reflected in his years of service (including in leadership roles) on his local bar association’s equity, diversity and inclusion committee.
Returning to the central argument of my WSJ op-ed:
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College is traditionally a time of experimentation and exploration. We adopt and discard ideas and try out different identities, sometimes in rapid succession. These identifies often bear little resemblance to our mature selves— Hillary Clinton was once a “Goldwater girl,” while Clarence Thomas was a Black Panther sympathizer—but exploring them is how we learn about ourselves and acquire wisdom—how we grow up.
Exhibit A, cited in the article: the “Happy Homos” column I wrote as a deeply closeted, 19-year-old college junior. I apologize for it (as I have done in the past in these pages), but I also see it for what it was: part of my years-long struggle to overcome a deeply internalized homophobia. Remember this was the 1990s, two years before the Defense of Marriage Act.
Should I be deemed a homophobe today because of what I wrote back in 1994 — even though I’m now a happily married gay man who speaks and writes in support of LGBT rights? That seems a bit ridiculous — and taking that approach with nominees would have unfortunate consequences:
Judging people today based on things they wrote or said as undergraduates would block many highly qualified people from public service. The loss would be especially great given their demonstrated willingness to grapple with ideas and challenge conventional wisdom, even at the risk of being wrong or causing offense. Penalizing intellectual exploration will make college a stifling experience. Students will avoid saying or doing anything remotely unconventional, and we’ll end up with a leadership class of bland “organization kids,” in David Brooks’s phrase.
How can we prevent college musings from becoming millstones around nominees’ necks? For starters, the Senate Judiciary Committee questionnaire should make clear that nominees need not list publications before law school, the start of one’s legal career. If earlier writings come to light anyway, senators should ignore them unless current information suggests the nominee still holds the views in question.
In some social-media commentary on the article, readers have argued that we should be able to see a nominee’s college writings, even if we don’t give much weight to them. I don’t have a huge problem with that (although given the volume of post-law-school material available about a typical nominee and the limited amount of hearing time, I’d argue there are many more worthwhile subjects of inquiry). As I write in the op-ed (emphasis added):
There’s probably no legislative or regulatory fix. The best solution is an informal societal understanding that all of us must be responsible and judicious in using old information. Let him who did not embarrass himself in college cast the first stone.
To expand on this and to clarify my position, I do not believe in any kind of law or regulation that would ban looking at college articles or make them harder to find (like the so-called “right to be forgotten” in Europe). Instead, I believe that there should be a presumption against looking at them, reflected in not requiring nominees to disclose college writings in their Senate Judiciary Questionnaire.
Could the presumption get rebutted (e.g., because the writings express support for the KKK, one example repeatedly raised with me)? An earlier draft of the op-ed contained this language: “Is it possible that some college essay could be so abhorrent as to disqualify the author, many years later, from judicial or other public office? Sure, it’s possible — but it should happen only in the most extreme circumstances, and ideally only when current information suggests the nominee still holds the views in question.”
People change and grow — it’s a crucial part of being human — and we shouldn’t be forever trapped in our college (or pre-college) selves. A few months ago, I went to a WNYC debate featuring Elie Mystal and centering on hate-crime legislation. During the audience discussion, one person gave a riveting account of how he was raised in a deeply racist family and community and was deeply racist himself — before he grew up, moved to New York, and saw the error of his ways. I don’t think he should be forever shunned because he had the misfortune of being born into a racist family and community — which he eventually transcended and now speaks out against eloquently and credibly, because he was once a part of it.
Is the senators’ citing Ryan Bounds’s college op-eds as the basis for opposing him just political posturing, of the most disingenuous sort, to hide the true reasons for their opposition? Quite possibly — but if that’s the case, then let’s have an honest discussion about the real rationales, instead of a charade over something that everyone should (and perhaps does) view as irrelevant.
With seven of its 29 seats vacant, the Ninth Circuit desperately needs new judges (and arguably more-conservative judges, given the court’s leftward tilt and frequent reversals by the Supreme Court). The seat that Ryan Bounds has been nominated for — that of his former boss (and mine), Judge Diarmuid F. O’Scannlain — has been deemed a judicial emergency.[1]
So let’s fill it without further delay. Good luck to Ryan Bounds in the confirmation process.
[1] If it makes Senators Wyden and Merkley feel better, they should know that Judge O’Scannlain was, as an active judge — and is, as a senior-status judge — one of the strongest conservative voices on the Ninth Circuit. Based on what I know of both men, having clerked for Judge O’Scannlain and with Ryan Bounds, I believe that replacing O’Scannlain with Bounds would actually move this seat to the left (to the extent that we should care about such things; in an ideal world, we wouldn’t care about ideology; but we don’t live in an ideal world, and I suspect the senators’ opposition to Bounds is ideologically motivated.).
Give Amnesty for College Writings [Wall Street Journal]
Ryan Bounds passes muster with those he supposedly maligned [Oregonian]
David Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].
