On November 13, 2018, President Trump nominated Kenneth Lee to the Ninth Circuit Court of Appeals for the seat previously held by Judge Stephen Reinhardt. The Senate did not act on Lee’s nomination before the end of the Congress, and on January 3, 2019, Lee’s nomination was returned to the President. On February 6, 2019, President Trump renominated Lee.
Lee’s nomination takes place against the backdrop of President Trump’s intense dissatisfaction with the Ninth Circuit. The President has repeatedly attacked the independence of the judiciary overall. But his ire towards the Ninth Circuit and specific judges in the circuit has been particularly vocal and vicious. The President has said the court is a “big thorn” in his side, and has called the court a “dangerous disgrace,” a “complete & total disaster,” and “out of control.” He has threatened to “put in a major complaint” about the court.
Decisions by the Ninth Circuit (and district court judges) that have most enraged the President include rulings that struck down his Muslim Ban, that enjoined the Administration’s order withholding federal funds from cities that failed to enforce immigration laws, and that enjoined policies that made individuals crossing the southern border ineligible for asylum. The President, moreover, has already preemptively attacked the Ninth Circuit for what he anticipates will be an adverse ruling on his emergency order to fund the border wall for which Congress has refused to appropriate money:
[W]e will have a national emergency and we will then be sued, and they will sue us in the Ninth Circuit even though it shouldn’t be there, and we will possibly get a bad ruling, and then we’ll get another bad ruling, and then we’ll end up in the Supreme Court and hopefully we’ll get a fair shake and we’ll win in the Supreme Court just like the [travel] ban. They sued us in the Ninth Circuit and we lost, and then we lost in the Appellate Division, and then we went to the Supreme Court and we won.
Given President Trump’s repeated attacks on the independence of the Ninth Circuit and his desire to obtain different rulings, it is clear that he brings an agenda to any nomination he makes to the circuit. There is an overwhelming likelihood that the White House will seek out reliable partisans and ultraconservatives for Ninth Circuit seats, and Lee’s record strongly suggests that he meets those requirements.
Lee – a Federalist Society member for over 20 years – has a record of attacking “liberals,” Democrats, and “left-leaning lawyers” who have sought to enforce rights and legal protections in court. He has opposed voting rights and equal opportunity programs. He has advocated on behalf of wealthy corporations to make it harder for workers and consumers to have their day in court. And, like circuit court nominees Ryan Bounds and Neomi Rao, Lee in his student years amassed a record of intolerance. During those years he harshly criticized “multiculturalism” (a “malodorous sickness”) and fought activists advocating for racial justice, women’s rights, and LGBTQ equality.
Among other things, Lee wrote that ethnic studies on campus perpetuated a “victimization culture,” that a resource center for LGBTQ students was nothing but “a token to appease the more militant gay activists on campus,” and that “phony feminist statistics on rape, anorexia, and discriminatory treatment of girls” were rife on campus.
Lee’s record has drawn criticism from his home-state senators, Dianne Feinstein and Kamala Harris. But because the Trump White House was determined to nominate a reliable ideologue, it pointedly avoided meaningful consultation with either senator before nominating Lee. As Senator Feinstein wrote, “I repeatedly told the White House I wanted to reach an agreement on a package of 9th Circuit nominees, but…the White House moved forward without consulting me, picking controversial candidates from its initial list.”
Tellingly, Trump’s conservative base insisted he not even negotiate with home-state senators or make any effort to nominate a consensus pick. After initial (but incorrect) reports that Trump was negotiating with Senators Feinstein and Harris, conservative talk show host Hugh Hewitt said, “[c]aving on the 9th Circuit Court of Appeals nominees burdens every GOP senator up for re-election in 2020 and may cost President Trump a significant percentage of the vote in key swing states.” The Wall Street Journal said that “remaking the federal judiciary may be the only thing a Republican Senate can accomplish in divided government. The White House shouldn’t water down” its nominees “to please Democrats.”
In fact, Lee himself appears to have been so dismissive of the role of Senators Feinstein and Harris that he did not bother to disclose controversial articles he authored to Feinstein’s and Harris’s state judicial committees. This omission is similar to those committed by former judicial nominees Ryan Bounds and Gordon Giampietro, both of whom came under fire for their actions and ultimately failed to be confirmed. In the wake of those failures, Lee chose to avoid disclosure even though he must have known that the writings he failed to disclose would garner heightened scrutiny and opposition from his home-state senators. As Feinstein and Harris wrote, “We made clear to the White House that we could not support Kenneth Lee in this package, in part because he failed to turn over controversial writings to our judicial selection committees, which is an important part of the vetting process. Instead, the writings were later discovered by staff and press.”
Not only that, but weeks after providing his supposedly completed Senate Judiciary Committee questionnaire, which required submission of all writings, Lee chose to make a last-minute delivery to the committee of a sizable trove of additional writings. It is notable that the writings omitted from his original SJQ filing contain some of his most offensive statements about racial equity, women, and LGBTQ Americans.
When Goodwin Liu, President Obama’s nominee to the U.S. Court of Appeals for the Ninth Circuit, had to supplement his original questionnaire for the Senate Judiciary Committee, there was an outcry from Republicans. Then-Senator Jeff Sessions, Ranking Member of the Judiciary Committee, along with every Republican on the committee including current Chairman Chuck Grassley, wrote that Liu’s “unwillingness to take seriously his obligation to complete these basic forms is potentially disqualifying and has placed his nomination in jeopardy.” The Committee Republicans wrote that “[a]t best, this nominee’s extraordinary disregard for the Committee’s constitutional role demonstrates incompetence; at worst, it creates the impression that he knowingly attempted to hide his most controversial work from the Committee.” Senator Sessions even suggested that Liu had committed a felony. Later, Republicans successfully filibustered his nomination, and Liu withdrew his name from consideration.
In light of this background, there can be no pretext that Kenneth Lee is being nominated because of his legal ability or to neutrally apply the law. Rather, he is being nominated to achieve specific ideological results, and to carry out the partisan agenda articulated by President Trump and vocal supporters such as Hugh Hewitt. Lee’s record provides strong evidence that he would do exactly that.
AFJ strongly opposes Lee’s confirmation.