9th Circuit nominee faces questions about college writings while senators spar over ‘blue slip’ tradition

Ryan W. Bounds, an Oregon federal prosecutor nominated by President Donald Trump to join the 9th U.S. Circuit Court of Appeals, said he regretted the tone of controversial opinion columns he wrote during college, as he told members of the Senate Judiciary Committee Wednesday his words were not as respectful as they should have been.

“I would like to start by making clear that I, sitting here today nearly a quarter century later, share the concerns of many that the rhetoric I used in debating campus politics back in the early ‘90s on Stanford’s campus was often overheated, overbroad, too often not as respectful as it should have been of people of opposing viewpoints about how best to pursue diversity and ensure a multicultural respect on campus,” he told the committee.

Several columns Bounds wrote on the topics of race, the adjudication of campus sexual assault cases and LGBTQ discrimination while he was a student at Stanford University have been the focal point of his nomination since Alliance for Justice, a liberal advocacy group, brought attention to the columns.

Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley, have refused to support Bounds’ nomination, citing the content of these columns as objectionable and accusing the nominee of misleading their selection committee by not disclosing them to its members.

Bounds countered that criticism Wednesday, saying he had included the columns in full in his Senate Judiciary Committee application in January and adding that the Oregon senators had asked for writings going back to law school when their committees set out to review possible candidates for the spot.

Bounds said he fulfilled that obligation.

Sen. Richard Blumenthal, a Democrat from Connecticut, took objection to specific columns Bounds wrote.

“You referred to fellow students as ‘Oreos,’ ‘Twinkies,’ ‘coconuts,’ and the like,” Blumenthal said to Bounds, reading from a column on campus politics.

Bounds noted he was quoting terms used by liberals on campus in reference to ethnic minorities who espoused conservative views and was writing in opposition to the use of those terms in debates.

“I was objecting to the notion that any student at Stanford or anyone anywhere, frankly, would be subjected to those sorts of abusive terms, simply because they did not conform to other people’s expectations of how people of a certain race or ethnicity should act,” Bounds said later, responding to a question from Sen. Mike Crapo, R-Idaho.

Delaware Sen. Chris Coons, a Democrat, asked Bounds about columns questioning how expelling students accused of rape would help victims heal and suggesting that LGBTQ individuals “like to fancy themselves oppressed.”

Bounds, who repeatedly said he has since matured, told Coons he believes “people in long-marginalized communities in the United States continue to face obstacles and face discrimination” and noted he had personal friends who had been physically assaulted because of their sexual orientation.

Explaining that the broader campus rape article was about standards of proof, he said he supports efforts to encourage victims to speak out and the full enforcement of the law in assault cases.

Though Democrats and Republicans were keen on diving into the subjects of Bounds’ collegiate writing, debate between senators over the history of the “blue slip” custom consumed the hearing.

Wyden and Merkley have refused to return their Bounds paperwork — the blue-hued letters on which home state senators indicate their support or disapproval of judicial nominees.

The blue slips’ application to the nomination process has changed over the century in which it has been employed, but under the Obama administration, Democrats and Republicans alike treated unreturned or negative blue slips as effective vetoes.

Since the announcement that Iowa Republican Sen. Chuck Grassley — who chairs the judiciary committee and is responsible for deciding how to use blue slips — would proceed with Bounds’ nomination over the Oregon senators’ objection, Democrats have cried foul.

“Today, we’re making history,” Blumenthal said, “really bad history.”

Grassley and other Republicans denied abandoning Senate tradition.

“My blue slip policy is the same as all but two of my predecessors,” Grassley said, after chiding Democrats for abandoning the filibuster rule for confirming judges during the Obama presidency. “Like Ted Kennedy, Joe Biden and Orrin Hatch, I will hold hearings for circuit court nominees without two positive blue slips if the White House has consulted with home state senators.”

Grassley said he felt satisfied the White House consulted with the Oregon senators on Bounds’ nomination.

Rhode Island Democratic Sen. Sheldon Whitehouse noted a change in the blue slip policy could erode the tradition of assigning circuit court seats to individual states, a practice that is not codified by law.

“When you undo the blue slip for circuit court of appeal nominees, you open the door for any future president to pick any circuit court nominee without the slightest regard for the state affiliation of a particular seat,” Whitehouse said. “The entire power with regard to the appointment of circuit court judges moves to the Oval Office.”

Several senators noted that, if confirmed, Bounds would fill the seat previously held by his former boss, Judge Diarmuid O’Scannlain, who took senior status at the end of 2016.

“He has been a trusted friend and mentor since the day we met,” Bounds said emotionally. “It would be the honor of a lifetime ... to follow in his footsteps, even though his shoes are impossible to fill.”

Remembering the legacy of the judge for whom he clerked, Bounds said O’Scannlain taught his clerks the importance of “humility about the judicial role.”

California’s two Democratic senators, Dianne Feinstein and Kamala Harris, who sit on the committee, were absent from the hearing. They were at the Senate Intelligence Committee’s conflicting confirmation hearing for CIA director nominee Gina Haspel.