Congress

Another Trump judicial nominee backs away from college writings

Kenneth Lee’s testimony came hours before Senate confirmation of Neomi Rao, who had also backed away from college articles

Neomi Rao, nominee to be U.S. circuit judge for the District of Columbia Circuit, takes her seat for her confirmation hearing in the Senate Judiciary Committee on Tuesday, Feb. 5, 2019. (Bill Clark/CQ Roll Call file photo)

Another of President Donald Trump’s appeals court picks distanced himself from college writings Wednesday, including articles about AIDS, LGBT rights, affirmative action and sexual harassment that raised concerns from Democrats.

“When you’re 18 or 19 you think you know everything, even though you really don’t,” Kenneth Lee, a nominee for the U.S. Court of Appeals for the 9th Circuit, told the Senate Judiciary Committee. “When you’re young you think being snarky is being witty, as you get older I think you realize it frankly comes off as insensitive or tone deaf. I’ve learned that.”

Lee’s testimony came just hours before the Senate voted, 53-46, to confirm D.C. Circuit pick Neomi Rao, who also backed away from her own college articles from the 1990s — such as one that said that a good way for a woman “to avoid a potential date rape is to stay sober” — and wrote the committee to explain her views now.

As with Rao, committee Republicans appeared set on advancing Lee as well as another 9th Circuit pick, Daniel Collins, over the concerns of Democrats, who can’t stop any nominee without the votes of several Republican senators.

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“The reason I feel comfortable is because when you look at who these gentlemen have worked with it’s pretty unanimous, it’s not whether I agree with them or not, they’re just decent lawyers and ethical people,” Committee Chairman Lindsey Graham, R-S.C., told Democrats during the hearing. “On the philosophical side, I understand that you disagree with the judicial philosophy.”

Lee was a prolific writer at Cornell University on controversial topics. On a 1994 article about AIDS, Lee said “I truly regret writing that,” and “I’m embarrassed by it,” and it was a defense of the Reagan administration’s approach to the disease that would mortify him if his friend with AIDS read it.

On casting claims of sexual harassment as “irrelevant pouting,” Lee said he was “naïve” in defending a professor he admired who had been accused and had a “major blind spot” because he “didn’t understand the dynamics” of workplace behavior.

And on an article portraying LGBT rights as “a quasi-Marxist paradigm of the oppressed and the oppressor,” Lee called many of his articles a “gut reaction” based on his experiences as an adolescent immigrant growing up in Los Angeles.

Sen. Dianne Feinstein of California, the committee’s top Democrat, reiterated her concerns about those past writings, including dozens that were not disclosed during the nominating process. Feinstein and Sen. Kamala Harris, D-Calif., opposed the committee holding a hearing.

Graham said the White House had done a lot of consultation with the California senators, and “from my view it’s time to move on.”

“If I really believe you’re holding a grudge against something or somebody, those are the people we want to knock out. We’ve had two, and I’m not going to tell you who they were,” Graham said.

Democrats might look to Republican senators outside the committee to join them in opposing Lee, particularly to Sen. Tim Scott of South Carolina. Scott, the Senate’s lone black Republican, stood in the way of two of Trump’s judicial nominees last Congress over past writings and actions on race.

Scott’s opposition dashed Ryan Bounds’ nomination to the 9th Circuit over articles that stridently criticized a culture of campus political correctness when he attended Stanford University. And his opposition also scuttled Thomas Farr’s nomination to the Eastern District of North Carolina because of actions related to black voters with the reelection campaign of Sen. Jesse Helms in 1990.

Both moves happened once Senate Majority Leader Mitch McConnell had put them on the floor, a rare public setback for Trump’s nominees. But that was last year, when Republicans held a razor thin majority.

Republicans gained two seats this Congress and widened their advantage in the Senate to 53-47. Republicans have steamrollered over Democratic concerns in recent weeks to confirm a series of appeals court judges: Chad Readler to the 6th Circuit on a 52-47 vote; Allison Rushing to the 4th Circuit on a 52-44 vote; Eric Murphy to the 6th Circuit on a 52-46 vote; and Paul Matey to the 3rd Circuit on a 54-45 vote.

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