9th Circuit nominee advances to full Senate vote despite lack of home state senators’ support

President Donald J. Trump’s first nominee to the 9th U.S. Circuit Court of Appeals, a conservative Oregon federal prosecutor who has come under fire for controversial opinion pieces he wrote in college on sexual assault, advanced through the Senate Judiciary Committee Thursday on a party line 11-10 vote.

Democrats spoke at length during an executive business meeting, warning that the decision to move forward with the nominee, who lacks support from his home state senators, defies a century-old tradition known as the “blue slip” process, which encourages the White House to consult with senators when selecting federal judicial nominees.

“This committee has been too quick to advance nominees over the objections of home state senators,” said Sen. Dianne Feinstein, the California Democrat who is the committee’s ranking member. “And this is the case with a nominee on today’s agenda, Ryan Bounds.”

Oregon Senators Ron Wyden and Jeff Merkley, both Democrats, have opposed Assistant U.S. Attorney Ryan W. Bounds’ nomination to the court since the White House announced it in September. At the time, Wyden and Merkley refused to return blue slips on the candidate, complaining that the administration had not consulted them on the selection.

Bounds’ nomination idled for months and was returned to the president in January due to inactivity. Trump re-nominated Bounds two days later. Oregon’s bipartisan judicial screening commission, which advises the senators on potential federal judicial nominees, ultimately approved Bounds. But shortly thereafter, controversial opinion columns he wrote as an undergraduate at Stanford University emerged.

In them, Bounds expressed skepticism about the standard of proof used in adjudicating campus sexual assault cases and was critical of on-campus diversity groups, including LGBTQ advocacy organizations.

“Expelling students is probably not going to contribute a great deal toward a rape victim’s recovery,” he wrote in one column, Feinstein noted. “There is no moral imperative to risk egregious error in doing so.”

Sen. Chuck Grassley, an Iowa Republican who chairs the Judiciary Committee, defended Bounds Thursday.

“I hope we don’t live in a world where controversial things we write in college end our careers forever,” he said.

Bounds was asked by the Oregon screening committee to disclose any potentially “controversial material in his record,” Feinstein said at the committee meeting Thursday. Bounds did not submit the columns to the committee. Five of the seven members of the Oregon committee have since retracted their support of Bounds, Feinstein noted.

Bounds did, however, disclose the columns to the Senate and has since objected to characterization of his non-disclosure to the Oregon screening committee. During his Judiciary Committee hearing in May, Bounds expressed some remorse for the columns, describing his tone in the writing as “overheated,” “over broad,” and “too often not as respectful as it should have been.”

But he said he had not intentionally misled the Oregon screening committee, testifying that the Oregon senators had requested writings only going back to law school.

Though many of the Democratic senators expressed concern about Bounds’ writings and the fact he had not submitted them to the Oregon committee, many opined generally about the implications the committee’s consideration of Bounds meant for the blue slip tradition.

“Once you have decided to ignore home state blue slips, it’s very hard to find a principled reason why that should be called an Oregon seat on the 9th Circuit,” lamented Sen. Sheldon Whitehouse, a Democrat from Rhode Island.

Blue slips are an informal Senate tradition that have been honored differently depending on the judiciary committee’s chairman. Since 1917, senators have returned their opinions on judicial nominees from their states to the Judiciary Committee on blue-hued sheets of paper. Traditionally, unreturned blue slips have been fatal to a nominee’s advancement.

Under the Obama administration, the last Democrat to serve as the committee’s chair considered unreturned slips an effective black ball of any nominee. If Bounds survives a full Senate vote, he will be the first nominee to a federal court to be confirmed without receiving at least one positive blue slip from a home state senator since the tradition began a century ago, Democrats said Thursday.

The blue slip tradition is not codified as a rule, Democrats acknowledged, and adherence to the informal practice has long been voluntary. However, Feinstein and Whitehouse both noted that the allocation of circuit seats to individual states is also an informal practice.

“I hope if we end up down that road and the shoe is on the other foot, we don’t hear much complaining from the other side when Utah or Texas or some other state ends up with a fine New Yorker in so-called ‘their seat’ on their circuit court,” Whitehouse said.

Grassley fought back on Democrats’ characterization of his blue slip policy, claiming that he is only moving forward with Bounds’ nomination because the White House ultimately gave the Oregon senators time to consider Bounds as a potential nominee. “I’m satisfied that the White House adequately consulted with the senators,” he said.

No other Republicans spoke in defense of the decision to move forward with the nomination Thursday.

Bounds is the first of three nominees the president has made to the 9th Circuit.

Trump tapped former Hawaii attorney general Mark J. Bennett for a Hawaii seat on the court. The Judiciary Committee reported Bennett’s name favorably to the Senate last month in an 18-2 vote, with the negative votes cast by Republicans.

The president has also announced his intention to fill an Idaho seat on the court scheduled to open in August with Ryan Nelson, general counsel of Melaleuca Inc., an Idaho Falls-based natural wellness product company. Nelson has yet to receive a hearing before the Judiciary Committee.

Both Bennett and Nelson have the support of their home state senators.