Bounds nomination to 9th Circuit halted moments before Senate vote

The Trump-McConnell judicial confirmation marathon, until Thursday nearly unstoppable in its efforts to reshape the nation’s courts with young, conservative judges, has suffered its first major blow.

In a stunning turn of events, U.S. Senate Majority Leader Mitch McConnell announced minutes before a scheduled vote on the confirmation of President Donald Trump’s first pick for the 9th U.S. Circuit Court of Appeals that the nomination had been withdrawn.

Oregon federal prosecutor Ryan W. Bounds confirmed in an email to the Daily Journal Thursday that he had requested the withdrawal of his nomination.

“As a lawyer who grew up in a small town in eastern Oregon, I was deeply proud to have been nominated to serve on a court of such vital importance to my community — and the state I love,” Bounds wrote. “I could not be more thankful for the support of so many colleagues and friends from throughout the legal profession and across the political spectrum. Ultimately, however, my greatest honor is serving this country and the Constitution that protects it. I’ve been grateful for the opportunity to do so every day as a federal prosecutor, and I look forward to continuing to do so.”

On Wednesday night, the Senate had voted 50-49 along party lines to invoke cloture on the nominee, but last-minute Republican defectors imperiled his confirmation to an Oregon seat on the 9th Circuit.

South Carolina Sen. Tim Scott, a Republican, announced he did not plan to vote for Bounds, citing his objection to several controversial columns the nominee wrote on race and diversity as an undergraduate at Stanford University. The senator met with Bounds Wednesday night and Thursday morning, he told NPR, but still “had unanswered questions” about the nominee that prevented him from offering support. That crumbled the slim majority Republicans expected they would have to ensure confirmation.

Bounds’ college writings — in which he, among other things, expressed skepticism about university diversity efforts, the standard of proof used in adjudicating campus sexual assault claims and the celebration of gay pride — have been problematic for the nominee since they surfaced in February, when the liberal advocacy group Alliance for Justice published them online.

The revelations prompted Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley, who had opposed the nomination saying the White House had not consulted them on whom to pick, to solidify their opposition to his nomination and push for it to be killed.

A last ditch attempt on their part to derail the confirmation seems to have been successful.

On Wednesday night, Merkley took to the Senate floor, invoking directives from the Federalist Papers to the Senate to prevent the appointment of “unfit characters,” saying that Bounds fit that bill. And hours before the Senate was poised to vote Thursday on the nomination, Wyden rose and delivered an impassioned speech urging colleagues on the other side of the aisle to vote against the prosecutor’s confirmation to the court.

Bounds apologized for the writings during a hearing before the Senate Judiciary Committee in May. He described his rhetoric as “overheated, overbroad, too often not as respectful as it should have been of people of opposing viewpoints.”

But Democrats have also expressed concern that Bounds withheld these writings from the members of Oregon’s bipartisan judicial selection committee, which advises the senators on potential federal judicial nominees.

That body originally approved of Bounds’ nomination, but a majority of its members rescinded support for him after the college columns surfaced.

Both Wyden and Merkley have said Bounds purposely misled the committee by not providing them copies of the writings, saying he was asked for anything “controversial” he had authored during his career. Bounds has countered that characterization as unfair, saying he was only asked for documents dating back to law school, a request he said he fulfilled.

Though the Trump administration has withdrawn the names of several potential judges, this is the first nomination to fail after surviving a committee vote.

Questions remain as to what this means for the 9th Circuit Oregon seat, which has been vacant since Judge Diarmuid O’Scannlain took senior status at the end of 2016.

It was not clear by Thursday evening whether the nomination was formally withdrawn by the White House or whether McConnell was simply withdrawing Bounds’ name from a floor vote.

But Wyden was quick to seize on the opportunity, issuing a press release announcing he was “ready and willing to work with them on finding a nominee who deserves a seat on the Ninth Circuit.”

Publicly, the White House was silent on the development as of press time.

It was also unclear as to what the withdrawal means in the escalating debate over the senate’s “blue slip” tradition, by which consent from a nominee’s home state senators is required to move forward with a judicial nominee.

Neither Wyden nor Merkley had returned their blue slips — papers indicating approval — on Bounds when he was first nominated to the 9th Circuit in September 2017.

Democrats had decried the decision to move forward on the Bounds nomination as the death of the blue slip, which has been used in the Senate in some form for the past century.