9th Circuit nominee faces likely confirmation battle over past writings

LOS ANGELES -- When President Donald Trump nominated Kenneth K. Lee, a partner at Jenner & Block, to a vacant seat on the 9th U.S. Circuit Court of Appeals, California's two Democratic senators were quick to voice objections.

Dianne Feinstein, the ranking member of the powerful Senate committee charged with vetting federal judicial nominees, said in a statement that Lee hadn't disclosed "controversial writings on voting rights and affirmative action" to her judicial selection committee. Kamala Harris echoed concerns about the judicial pick.

Lee, who came to the United States from South Korea as a toddler with his parents, wrote extensively on the topic of affirmative action in the 1990s and 2000s, a time when high profile U.S. Supreme Court litigation on that issue captured the nation's headlines.

In a series of pieces published in the New Republic and the American Enterprise, Lee articulated concern that affirmative action programs harmed high achieving Asian American students by accepting other minority students with lower grades. Addressing the perceived issue put Asian Americans between a rock and a hard place, he said.

"Asian Americans are caught between policies that limit their admission to select colleges and opportunistic conservatives who see in them a way to further a larger social agenda," he wrote in a 1996 New Republic piece entitled "Angry Yellow Men."

He opined on perhaps the most controversial national precedent on the issue, the 1978 landmark U.S. Supreme Court decision in Regents of the University of California v. Bakke, which affirmed in a plurality decision the consideration of an applicant's race in the college admissions process. Turning to Justice Lewis F. Powell Jr.'s concurring opinion, Lee said the late jurist's reasoning "was based on the naïve assumption that universities would consider race merely as a tie-breaker."

Geographic, religious and income diversity should be important factors considered in achieving diversity, Lee wrote in the 2003 American Enterprise piece. And in order for conservatives to increase their presence on college campuses, Lee said a year earlier in the same publication, they should "appropriate the language and logic of liberals' most sacred shibboleth: affirmative action."

Lee even considered -- before explaining legal problems with his own hypothetical -- a civil rights lawsuit brought by conservatives against elite colleges for discrimination by adopting the theories of disparate treatment and impact.

A Harvard Law School graduate who eventually worked his way to a position in the White House Counsel's Office during the George W. Bush administration and later a job as counsel to Republican Pennsylvania Sen. Arlen Specter during the 2006 confirmation of now Chief Justice John G. Roberts Jr., Lee is intimately familiar with the confirmation process he will soon endure.

Reflecting on his time working on the Roberts nomination, Lee, who declined to comment for this story, told Super Lawyers magazine in 2015 that an unremarkable confirmation process is preferable for federal judicial hopefuls.

"If you remember a hearing, it's because something highly political happens," Lee opined.

Affirmative action has once again become a hot button issue, especially in light of the Trump administration's decision to trash Obama-era guidelines on weighing race as a factor in college admissions and an ongoing federal lawsuit against Harvard University alleging the school is biased against Asian Americans in the admissions process. This will be the backdrop for Lee's eventual confirmation hearing.

Feinstein does not seem poised to let the issue go. In a statement given to the Daily Journal Wednesday, her press secretary, Ashley Schapitl, said Lee failed to disclose his articles during "an important part of the vetting process."

Lee eventually acknowledged not providing "a few controversial writings," Schapitl said after Feinstein submitted her recommendations for 9th Circuit nominees to the White House.

"Since then, additional controversial writings have been identified by the senator's staff and press," Schapitl continued. "None of these writings were provided to the bipartisan committees during the vetting process."

A dispute between Oregon's two Democratic senators and Assistant U.S. Attorney Ryan Bounds, Trump's first pick for a 9th Circuit vacancy, ended up killing the nominee's chances of confirmation.

But Gregg T. Nunziata, a Washington, D.C. partner at Manatt, Phelps & Phillips LLP who worked with Lee on the Roberts confirmation, said his former colleague would likely weather any storm.

"Ken has seen how this works; he knows how this process works," the Manatt partner said Wednesday. "I'm sure he can explain anything he's written and put it in its proper context. He's very well spoken, he has a very sober and lawyerly way about him."

While the language Lee used in his early broadsides against affirmative action might have some believe he is insensitive to racial diversity, attorneys who know him say this isn't true.

"He was one of my mentors," former Jenner & Block partner L. David Russell, who is black, said in a recent interview. Russell commended Lee as an exceptional writer and "good office citizen."

The two worked on Jenner & Block's diversity committee. The nominee's former partner said Lee was a leader in ensuring that partners staffed cases with a diverse pool of associates.

"Some people [on the committee] just checked the box and didn't do much, but he was pretty involved," Russell said.

Like many federal judicial nominees, Lee has an impressive resume.

After graduating from law school in 2000, he began his legal career as a clerk to a judge on the 5th U.S. Circuit Court of Appeals: Emilio M. Garza. An offer to start as an associate at Wachtell, Lipton, Rosen & Katz brought him to New York, where he worked on insurance litigation related to the Sept. 11 terrorist attacks.

Years later, as an associate White House counsel, Lee worked on congressional investigations and oversight, judicial nominations and pardons. Lee also advised departments and agencies on legal issues.

"He was the 'glue guy,'" remembered Michael M. Purpura, chief legal officer at BlackSand Capital LLC who worked with Lee during his White House years and commended the judicial nominee for his tough work ethic and sharp legal mind. "By that I mean, he's the kind of guy that holds a team together."

Lee left the trenches of Washington, D.C. in 2009 when he came to Jenner & Block's Los Angeles office. Since then, he's developed a reputation in the California legal community as a well-respected class action litigator with a specialty in food labeling cases representing major names like Kraft Foods Group Inc.

He has secured a number of high profile wins for clients, including his 2014 victory for the California-based WholeSoy & Co., which was sued for describing its yogurt sweetener as evaporated cane juice. Lee pulled a victory out of the bag for his client by pointing to the primary jurisdiction doctrine to let the Food and Drug Administration decide the dispute, rather than a federal court.

Lee has an active pro bono practice and once represented California death row inmate Kevin Cooper, whose claims that racial animus tainted his criminal prosecution have drawn attention from the New York Times and a number of 9th Circuit judges when a different legal challenge of his failed to garner en banc review.

Jenner & Block's managing partner, Terrence J. Truax, described Lee as smart and practical, adding that he would be an "excellent jurist."

"His nomination to the federal appellate bench is a testament to both his experience and character," Truax said in a statement. "All of us at Jenner & Block are proud to call him our colleague and excited for him to begin a very important next chapter in his career."

As for his politics, his conservatism is known, but he isn't one to opine unprovoked, colleagues say.

"He's not the type of person who mouths off at cocktail parties about his personal political views," Nunziata said. "He's worked with mainstream conservative lawyers here in Washington and is comfortable with them. I would expect him to be in the tradition of the nominees of the last two Republican presidents."

Russell, who described himself as a liberal, said the two talked politics regularly when they worked together and he got to know how Lee thinks.

"He's not a knee-jerk conservative," Russell said. "My politics are very different from Ken's, but I think he'd be an excellent judge."