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Deconstructing The Defeat Of Ryan Bounds's Ninth Circuit Nomination

The nominee was a victim of unfairly late objections by Senate Republicans, strategic missteps by Republican leadership, or both.

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Ryan Bounds at his Senate Judiciary Committee hearing (photo by David Lat)

In September 2017, President Donald Trump nominated federal prosecutor Ryan Bounds to the U.S. Court of Appeals for the Ninth Circuit, the powerful and prestigious appellate court whose jurisdiction spans nine western states. If confirmed, Bounds would have replaced Judge Diarmuid F. O’Scannlain, for whom he once clerked. (Disclosure: Bounds and I have been friends since our first year of law school, and we clerked together for Judge O’Scannlain.)

On Wednesday, it looked like Bounds was about to be confirmed, after the Senate voted 50-49 in favor of cloture, i.e., to end debate on his nomination. A successful cloture vote usually means that a nominee is about to be confirmed (which is what happened with Andy Oldham, who had his cloture vote and then got confirmed to the Fifth Circuit on Wednesday, 50-49).

But yesterday, in a shocking turn of events, Senate Majority Leader Mitch McConnell (R-Ky.) and the White House withdrew the Bounds nomination. The Bounds confirmation vote, scheduled for 1:45 p.m. on Thursday, was delayed for an hour, while the Republican leadership tried to figure out if they had the votes to confirm him — and eventually concluded that they did not, culminating in the withdrawal.

This is not how things are supposed to work. How did it happen?

On Wednesday, Senator Tim Scott of South Carolina, the chamber’s only African-American Republican, expressed concerns over op-eds written by Ryan Bounds back in college, when he was an undergraduate at Stanford some 25 years ago. The op-eds, in which Bounds poked fun at the excesses of political correctness, were characterized by liberal organizations like the Alliance for Justice and the People for the American Way as “racist” and “offensive.”

This was rather late of Senator Scott to be raising these issues. They’ve been known about for months, Bounds’s confirmation hearing took place on May 9, and he was voted out of committee on June 7.

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Raising these objections on the day before the confirmation vote put both Senate leadership and Ryan Bounds in a terrible position. As a procedural matter, once the floor vote on the nomination was scheduled, it couldn’t be cancelled or postponed without unanimous consent — meaning that without Scott’s support, the only two possible conclusions were withdrawal of the nomination or an embarrassing defeat on the Senate floor.

And here’s the most perverse aspect of the situation: Senator Scott voted in favor of cloture on the Bounds nomination — which, as noted, is generally a prelude to a successful confirmation vote. Given his concerns about the Bounds nomination, Scott should have voted against cloture, either to allow for more careful consideration of the nomination or to spare the Republican caucus (and the nominee) the mortification of a defeat on the Senate floor.

Here’s more on how this disaster unfolded, according to Politico:

The [pulling of the nomination] came after Sen. Tim Scott (R-S.C.) on Thursday morning flagged Bounds’s past commentary with Sen. Marco Rubio (R-Fla.). The Florida senator then reviewed the record of Bounds, who was nominated by President Donald Trump. Rubio, who had grown close to Scott during his 2016 White House campaign, soon after sided with Scott against the nomination, according to two people familiar [with] the matter.

Scott had first raised concerns about Bounds on Wednesday, and spoke to the nominee on the telephone. After talking with Rubio on Thursday, the two senators met with Bounds in person. But neither conversation persuaded them.

“The nominee was not able to alleviate Scott’s concerns to show how he had grown since the writings from his younger days,” said one of the people.

Scott then met with McConnell about the matter, before airing his concerns at a Senate GOP lunch on Thursday.

A lunch right before the scheduled 1:45 p.m. vote — not very helpful, Senator Scott.

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In fairness to Senators Scott and Rubio, one could argue that some of the blame belongs to Republican leadership. Until now, Leader McConnell and Senate Majority Whip John Cornyn (R-Texas) have been extremely efficient at confirming President Trump’s judicial nominees (which is how Trump has managed to set the record for most appellate judges confirmed in a president’s first two years). But regarding the Bounds nomination, perhaps they shouldn’t have scheduled cloture and floor votes without being certain that the caucus was united.

Now, Senators McConnell and Cornyn might respond that they had no way of knowing that Senator Scott had such deep concerns about the underlying nomination. As Senator Cornyn explained, “Tim Scott raised some concerns, and this was new information to most people.” Scott’s opposition might also have come as a surprise because he had voted in favor of cloture. Even if he might have had some qualms, voting for cloture suggests that they were unlikely to be dealbreakers and he just needed to learn a little bit more about the nominee.

Nevertheless, in terms of best practices for all future judicial nominees in the future, the Republican leadership should improve internal communication and not schedule cloture or confirmation votes until they’re absolutely confident of prevailing. As noted by the New York Times, “Republican leaders have no room for error when the Democratic caucus is united in opposition, given that the party has only a 51-to-49 majority, and one Republican senator, John McCain of Arizona, has been absent while battling brain cancer.”

Perhaps Senator McConnell could set up some sort of presumptive deadline, a certain number of days or weeks after a nominee is voted out of committee, for members of the caucus to raise issues. If even a single senator voices a question or concern before that deadline, no vote gets scheduled until all issues have been resolved. But if the deadline passes and no Republican senator has said anything, it should be safe to assume support, on a “speak now, or forever hold your peace” theory.

So Ryan Bounds was, in my opinion, a victim of unfairly late objections by Senate Republicans, strategic missteps by Republican leadership, or both.

But he was most of all a victim of unfair attacks upon his character and good name, which I’ll discuss in a future post.

P.S. I should point out that I’m not an expert in the Senate or its procedures, and perhaps Senator McConnell already has some system for making sure his caucus is unified on nominations (even if it didn’t work in this case). If you’re a current Senate staffer who works on judicial nominations for either party and would like to share your insights with me, please feel free to email me (subject line “Judicial Nominations”); I’m always looking for more sources on this subject. Thanks.

UPDATE (7/22/2018, 1:37 p.m.): Here’s my detailed defense of Ryan Bounds, in which I analyze and link to his underlying Stanford Review op-eds to argue that he’s not a racist. In addition, here are editorials from the Wall Street Journal and the National Review, arguing that Bounds was treated unfairly and should have been confirmed.

White House withdraws judicial nominee at Senate GOP request [Washington Post]
Circuit Court nomination pulled moments before vote over racially insensitive writing [CNN]
Trump judicial nominee pulled over racially charged writings [Politico]
White House Withdraws Appeals Court Nominee Who Deplored Multiculturalism [New York Times]
A Republican senator just helped sink one of Trump’s court nominees [Vox]
McConnell Withdraws Trump Judicial Pick Minutes Before Vote [OPB]
Nomination of controversial Oregon prosecutor withdrawn for 9th Circuit seat [Oregonian]

Earlier:

DBL square headshotDavid 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 dlat@abovethelaw.com.

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