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In Defense Of Ryan Bounds

Repeat after me: Ryan Bounds is not a racist.

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

To the list of Robert Bork, Miguel Estrada, and Merrick Garland, add the name of Ryan Bounds. The partisan poisoning of the judicial nomination process has claimed another victim — and the argument used to disqualify him from judicial office couldn’t be more wrong.

Yesterday, Senate Majority Leader Mitch McConnell (R-Ky.) and the White House withdrew the Ninth Circuit nomination of Ryan Bounds, after it became clear that not all Republicans were on board to confirm him. In terms of how that unfortunate sequence of events unfolded — in the wake of a successful vote for cloture to end debate on the nomination, which was supported by all Republicans — see my earlier story, Deconstructing The Defeat Of Ryan Bounds’s Ninth Circuit Nomination.

The purpose of this story is different. I’m writing today in defense of a good and decent person, an excellent lawyer, a longstanding public servant who just wanted to continue that public service  — and yes, a good friend.

(Disclosure: as I’ve mentioned many times in these pages, Ryan and I have been friends since law school, and we clerked together for Judge Diarmuid F. O’Scannlain, whose seat Bounds would have filled. So I’m not objective, and you can apply whatever discount factor you like to my arguments. But please do engage with my arguments, instead of simply dismissing them without reading because of this personal connection.)

Ryan Bounds, 45, is a highly respected federal prosecutor in Portland, Oregon, a graduate of Stanford College and Yale Law School, with a well-rounded résumé featuring a clerkship to a leading light of the federal judiciary; private practice at Stoel Rives, one of Portland’s top law firms; and broad government experience, including service in the U.S. Attorney’s Office, Main Justice, and the White House (under the George W. Bush administration). Ryan won approval from the American Bar Association and from the bipartisan judicial selection committee set up by Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley, and his qualifications have never been in doubt.

Lacking qualifications-based grounds for attacking Ryan — which are, in my view, the strongest reason for criticizing a nominee (see the footnote to this prior post for my views) — his opponents on the left mounted three arguments against his nomination:

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1. Ryan was nominated without adequate consultation of his home-state senators, neither of whom returned a “blue slip” signifying support of his nomination, and the lack of blue slips should be fatal to his nomination (as it was under certain prior chairs of the Senate Judiciary Committee).

2. Ryan failed to disclose to the Oregon senators’ judicial selection committee certain college writings of his in which he made statements that liberal groups like the Alliance for Justice and People for the American Way have characterized as “racist” and “offensive.”

3. Based on those same college writings, Ryan is a racist (and sexist and homophobe).

I’m going to focus on the third argument, which I view as the most unwarranted. For discussion of the blue slip issue, see my New York Times op-ed, expanded upon in this Above the Law post. For discussion of the disclosure issue, see this post by Ed Whelan.

Let’s start with a definition. Here’s one for “racist”: “a person who shows or feels discrimination or prejudice against people of other races, or who believes that a particular race is superior to another.” So, for example, a person who believes that one race is superior and another is inferior — e.g., less intelligent, less moral, less clean, etc. — and who treats people differently based on such beliefs would be a racist.

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This isn’t discussed in the definition, but in my view, racism should not be subject to a “disparate impact” analysis. In other words, favoring one policy over another, even if the policy you favor might disproportionately benefit or burden one race or another, doesn’t automatically make you a “racist.” For example, policies like lowering taxes or scrapping affirmative action would affect different racial groups differently, but if your support for such policies flows from factors other than racial animus, you aren’t a “racist” simply for holding such views.[1]

Now let’s turn to Ryan Bounds. The attacks on him as racist are not based on his legal career. He doesn’t represent white supremacists (although many of the lawyers who have represented white supremacists over the years, such as ACLU attorneys arguing for the First Amendment, aren’t racists either). Bounds is a federal prosecutor who works on white-collar and environmental cases (and many of the victims of these crimes, especially environmental ones, come from minority or disadvantaged communities).

Outside of the courtroom, Ryan served for four three and a half years as a leader of the Equity, Diversion, and Inclusion Committee of the Multnomah Bar Association (Multnomah County, home to Portland, is Oregon’s largest county). In this role, he worked tirelessly to put together numerous educational, scholarship, and mentoring programs aimed at advancing diversity within the legal profession. [UPDATE (7/23/2018, 3:30 p.m.): Per the Stanford Daily, Ryan served as a subcommittee chair for three years and chaired the main committee for five months, which is why I’ve changed four to three and a half.]

Working on diversity initiatives doesn’t seem like the best use of a racist’s time. For more information about Ryan’s great work for the ED&I Committee, see his resignation letter, after opponents of his judicial nomination seized upon his college writings to drive him out of the Committee.

(Some of Ryan’s critics might claim — without evidence — that his work on this committee was just a smokescreen for his racism, or done to help advance his judicial ambitions. But spending four years and countless hours on diversity work, which he started during a presidential administration unlikely to nominate him to the federal bench, strikes me as an awful lot of effort for a very speculative benefit.)

Let’s now look at Ryan’s collegiate writings for the Stanford Review, which have been seized upon by many, including my colleague Elie Mystal, as evidence of Ryan’s supposed racism. I have argued that college writings of judicial nominees should not be relevant to assessing their fitness for judicial office a quarter of a century later (see my Wall Street Journal op-ed and this related ATL post), but let’s set that aside for now and dig in.

I’ll go through the op-eds highlighted by the Alliance for Justice, which took the lead in tarring Ryan as a racist. They based their analysis on excerpts — but in each case, you should read the complete, underlying op-ed (as I have done, many times — unlike the vast majority of people calling Ryan a racist). I have linked them all here.

First up, from the AFJ report (I’ve grouped the AFJ’s excerpts thematically or based on the underlying op-ed they’re taken from):

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.”

I don’t believe these comments to be racist (read the full op-ed here). As I wrote in an Oregonian op-ed (co-authored with Portland lawyer Courtney Angeli):

Do organizations that define themselves solely by some legally protected characteristic sometimes inadvertently contribute to the very divisiveness they seek to eradicate? Ryan raised this question in one of his columns, and it’s exactly the kind of tough question that a thoughtful college student should be asking. In fact, young Ryan argued that all students should be treated as individuals and judged, as Martin Luther King, Jr., said, on “the content of their characters.”

Is Ryan’s comparison to “Nazi bookburning” ridiculous and hyperbolic? Yes. Is the hypothetical of an “Aryan Student Union” unnecessarily inflammatory? Sure. But that’s how college kids write, long on passion and short on perspective. It doesn’t make them racist; it just means they’re obnoxious and immature.

Ryan’s underlying point, wondering whether an excessive focus on race can exacerbate rather than alleviate racial tension, isn’t racist — and isn’t outside the mainstream. It reminds me of Chief Justice John Roberts’s famous quotation: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Next excerpts (from the same underlying op-ed):

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.”

There’s no racism here. Many people mistakenly believe that Ryan was adopting or deploying these offensive terms himself. Instead, it was exactly the opposite: Ryan was decrying the use of these terms, which are employed by those on the left to attack conservatives who happen to be members of minority groups. This point was repeatedly clarified at Ryan’s confirmation hearings — watch the video at around the 1:18:16 mark (Senator Cruz) or the 1:48:36 mark (Senator Crapo) — but based on some of the tweets I’ve received, many remain confused on this score.

There’s a reason why these terms appear in Ryan’s underlying op-ed inside scare-quotes. No conservative attacks members of minority groups as “oreos,” “twinkies,” or “coconuts.” To the contrary, conservatives embrace minorities who dare to think differently. Who goes after Justice Clarence Thomas as an “Uncle Tom”? Not conservatives.

Back to the AFJ:

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.”

This might be the worst comment by Ryan. Obviously a recovering victim of sexual assault would benefit from not seeing her attacker around campus any longer.

But I don’t believe Ryan was motivated by sexism. If you read the full op-ed, you’ll see Ryan referring to rape and sexual assault as “traged[ies]” — and wondering about the best way to address them, in a way that balances the rights of victims with respect for due process. As Courtney Angeli and I argued in our Oregonian op-ed, whether universities or local law enforcement should take the lead in handling cases of sexual assault, given their respective competencies, is a legitimate subject for discussion, and one on which reasonable minds can disagree.

Moving on:

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.”

You can read the underlying op-ed criticizing the cult of “Sensitivity” — capitalization in the original, reflecting a youthful Ryan Bounds trying to get a rise out of liberal readers — here.

On the issue of minority and LGBTQ rights, I can attest, as a gay man of color, that I’ve never seen Ryan do or say anything reflecting hostility toward minorities or LGBTQ individuals. I agree with our former boss, Judge O’Scannlain, who said in a statement about Ryan that “there isn’t a racist bone in his body.”

Yes, I know — telling you about how supportive Ryan was of me when I was struggling to come out, or how he joyfully attended my wedding years later, will be mocked as the “some of my best friends are gay” defense. But let me add one more data point.

In our 3L year of law school (1998-99), Ryan and I served as vice-presidents of the Yale Federalist Society, which involved us bringing speakers to campus and setting up debates. One of our most well-attended and successful events was a debate on same-sex marriage — which was, at the time, a hotly debated topic.

After the event, we went to lunch with the professors who debated, and one of them went around the table asking the assembled Fed Soc officers whether we supported gay marriage as a policy matter (as opposed to a matter of constitutional law) — i.e., would we vote for marriage equality at the ballot box (as opposed to imposing it through judicial decision).

Conservative and closeted at the time, I voted against gay marriage. But Ryan — back in 1998-99, when gay marriage was extremely unpopular, shortly after the Defense of Marriage Act — voted in favor it. Far from being dismissive of LGBTQ rights, Ryan was more supportive of them than I was — and far ahead of his time.

Okay, let’s go back to Ryan’s “Sensitivity” article, which needs to be read in context. This was during the “culture wars” of the late 1990s, and the campuses of elite universities like Stanford were a crucial battleground. Debate about the best way to improve race relations pitted the “color-blindness” camp, composed of people like Ryan who wanted to focus less on race and ethnicity, against the “multiculturalist” camp, composed of people who wanted to increase racial consciousness. Both sides believed that their approach was the superior one for enhancing mutual toleration, civility, and respect.

Against this backdrop, the Bounds op-ed is simply an argument for the color-blindness school — worded in an admittedly provocative and perhaps incendiary way, but advancing a position that was widely held at the time (and continues to be held by many, even if it’s a minority position that’s decreasing in popularity, in our highly race-conscious era).

Bounds’s argument was that an excessive focus on “Sensitivity” — walking on eggshells when discussing sensitive issues, for fear of offending one group or another — could give rise to a chilling effect that would harm academic discourse. If you reread the op-ed, but replace the word “Sensitivity” with “political correctness,” you see the innocuous, almost banal nature of his reflections.

Innocuous, because Ryan was arguing for what he thought would get us to a world with less discrimination. As he wrote elsewhere in the “Sensitivity” op-ed, in a section never quoted by his opponents:

[Sensitivity] divides, it discomfits, and it almost never gets us what we really want: freedom from the misunderstanding, prejudice, and strife that inhere in each of us appreciating our own problems more than anyone else possibly could. So, intrepid hunters of the false idol, search no longer. Turn your eyes from the enticing chimera of Sensitivity towrd a less egotistical outlook of mutual acceptance and support, and discover a community that Sensitivity conspires to destroy.

Reasonable minds might disagree over Bounds’s argument, but this is a reasonable point, in service of trying to create a world with less “misunderstanding, prejudice, and strife.”

Speaking of a chilling effect, what just happened to Ryan Bounds will have an effect — a negative one, in my view — on judicial nominations going forward. Both Republicans and Democrats now have license to scour the records of nominees, going back to college (or perhaps even high school), to find fodder for opposition.

And young people who might someday aspire to judicial or political office have learned that they should just keep their mouths (or laptops) shut. As I wrote in the Wall Street Journal:

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.

Finally, the AFJ also mentions the Stanford Review’s use around this time of “a crude caricature of a Native American figure” to illustrate a feature of the opinion page called “Smoke Signals.” Bounds’s personal involvement in this is not clear; he was an opinion editor at the time, although not the writer or illustrator responsible for the caricature, it seems. But even assuming his involvement, this kind of racial insensitivity or even racism — from 25 years ago, balanced against Ryan’s far more recent work to advance diversity and inclusion in the legal profession — strikes me as a thin reed upon which to hang rejection of his nomination.

Allow me to close by reminding everyone that this is just one person’s perspective; take these thoughts for whatever they’re worth. As I’ve mentioned repeatedly in these pages, I’m not objective when it comes to Ryan Bounds. So dismiss my arguments if you wish (although I’ve tried my best to craft them to appeal to objective and reasonable moderates). You can hardly blame me for wanting to defend a longtime friend from what I view as unfair attacks.

I think, however, that people of good will on both sides can agree: the judicial nominations process is deeply flawed. And it won’t be getting better anytime soon.

[1] I’m using a definition of “racist” that I believe to be fairly neutral. But you might take a broader view of the term “racist” (as does my colleague Elie Mystal, who believes that Chief Justice John Roberts and the other conservative justices are white supremacists). You might, for example, take the position that we have deeply racist political, social, and economic structures, which have oppressed minorities for centuries, and anyone who is neither an oppressed minority nor someone fighting for the progressive vision of how to reverse this oppression is a “racist.”

If that’s your view, then yes, Ryan Bounds is a racist — and so are all Republicans and most Americans, especially white Americans. But in my view, that broad a definition renders the term “racist” less meaningful than a more tailored one.

UPDATE (7/22/2018, 1:45 p.m.): The Wall Street Journal and the National Review both issued editorials arguing that Ryan was treated unfairly and should have been confirmed. The WSJ editorial described Ryan’s writings as nothing more than “a college kid writing sarcastically about political correctness, identity politics, and multiculturalism on campus,” while the NRO editorial stated that “Bounds’s views, while sharply expressed, were mainstream, defensible, and absent of any hint of hostility toward anyone based on his race.” I agree with these characterizations of the op-eds.

Good Riddance to ‘Blue Slips’ [New York Times]
Give Amnesty for College Writings [Wall Street Journal]
Ryan Bounds passes muster with those he supposedly maligned [Oregonian]
Beyond the Bounds of Fairness [National Review]
Democrats’ Beyond-Bounds Demagoguery [National Review]

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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