Trump administration calls California senators’ attack on nominee a ‘misleading smear’

The Trump administration on Tuesday called a statement by California’s Democratic senators aimed at stopping the nomination of Jenner & Block LLP partner Kenneth Lee to the 9th U.S. Circuit Court of Appeals a “highly misleading smear” and denied their allegation he had hid documents to obstruct the vetting process.

U.S. senators Dianne Feinstein and Kamala Harris, both members of the Senate Judiciary Committee, said in a statement Monday they had found more writings by Lee that they said contained “troubling views on race” and should have been made available to the committee earlier. They also said that Lee’s expressed views should disqualify him from the federal court bench. “The committee should not be moving forward with a hearing on any date,” they added.

The senators’ statement argued, “Failure to turn over controversial writings that demonstrate extreme views” not only indicates “an intention to obstruct the vetting process, it indicates Lee may continue to hold extreme and troubling views on race, which would place him out of step with the mainstream legal community in California.”

In response, an administration official said in an email to the Daily Journal: “The suggestion that Ken Lee somehow ‘hid’ documents or had an ‘intention to obstruct the vetting process’ is a highly misleading smear.”

The administration source said, “Lee disclosed more than 500 pages of materials in his original response to the Senate’s questionnaire, and voluntarily supplemented those disclosures with 40 additional pages of materials that his team discovered in an additional search of physical archives at Cornell University. The additional writings that the minority staff found in physical archives at Cornell (and which Lee has since sent to the Senate) totaled just eleven pages. And if senators think that Lee was insensitive in college, then they should want him to come before the Senate Judiciary Committee where they can ask him questions about it.”

Lee, who immigrated to the United States from South Korea when he was a child, wrote extensively on the topic of affirmative action during the late 1990s and early 2000s. In a series of articles published in the New Republic and American Enterprise, Lee expressed concern that affirmative action programs harmed high achieving Asian American students by accepting other minority students with lower grades.

In one of the examples of Lee’s writings, the senators quoted him as saying, “Liberals rarely fault a black criminal for his crime, lest they appear racist. Instead they blame racism or society. But of course, this ultimately hurts the black community. Majority of the crimes committed today are black-on-black crimes (inter-racial crimes are quite rare), and by having this lax attitude toward black crime, white liberals are allowing the majority of law-abiding African-Americans to be continually victimized.”

Lee was nominated by President Donald J. Trump for a 9th Circuit seat on Jan. 30 after his previous nomination had expired. Included in Trump’s January nominations were Munger, Tolles & Olson LLP partner Daniel P. Collins and five other nominees for California judgeships.

Feinstein, who had previously expressed concern regarding Lee’s nomination, released a statement to that affect immediately after he was again nominated.

“We are deeply disappointed that the White House had chosen to re-nominate Daniel Collins and Kenneth Lee to the Ninth Circuit,” she said.

In an interview Tuesday, former Jenner & Block partner L. David Russell, who described himself as a person of color, said his impression of the nominee was “quite the opposite” of what the senators have concluded.

Russell and Lee worked on Jenner & Block’s diversity committee, of which Russell said Lee was a leader in ensuring cases were staffed with a diverse group of associates.

“He is a consummate professional at work,” Russell said. “When it comes to diversity and inclusion, he took it quite seriously, trying to recruit minority associates and make sure they got a fair shake.”

Feinstein and Harris said failure to turn over “controversial writings” demonstrating “extreme views” on issues such as affirmative action and voting rights, have served as grounds to disqualify previous nominees, including Assistant U.S. Attorney Ryan Bounds.

In July 2018, the White house withdrew Bounds’ nomination to an Oregon seat on the 9th Circuit after an outcry in the Senate over racially controversial columns he penned as a college student. Bounds’ chances for confirmation were killed after Republican Sen. Tim Scott of South Carolina indicated he would not vote for him.

The administration official commented Tuesday, “Ultimately it will be up to the Senate to decide whether articles written more than two decades ago while in college, even if those articles contain arguably immature or insensitive comments, should forever bar highly qualified individuals from public service.”