Floor Remarks: Ryan Bounds Nomination Ninth Circuit Court of Appeals

M. President, right now there’s a vitally important debate happening on this floor with respect to judicial nominations. What’s clear to me is, the majority is chipping away at a century of bipartisan tradition that has protected the interests of people in our home states and served as a check on the powers of the executive. It’s the Senate bowing down to the White House, derelict in its constitutional duty to provide or withhold advice and consent on nominees. And in my view, it’s a dangerous mistake that will have harmful consequences for decades.

Today the debate is over the mishandling of the nomination of Michael Brennan to the Court of Appeals for the Seventh Circuit. This could be the first time in decades that a judicial nominee is confirmed over the objection of a home-state Senator.

And tomorrow the Senate Judiciary Committee is going to throw out a bipartisan practice that dates back more than a century when it holds a hearing on the nomination of Ryan Bounds to sit on the Ninth Circuit Court of Appeals.

It goes without saying that individuals up for a lifetime seat on a powerful federal court must be truthful and forthcoming in their nomination process. Yet Ryan Bounds hasn’t even cleared that low bar.

Mr. Bounds misled the independent committee that considers potential nominees in Oregon by withholding inflammatory writings that reveal disturbing views on sexual assault and on communities of people who are vulnerable and disadvantaged.

He’s had ample opportunity to clean up this mess, express remorse, and explain how his views have changed, but I certainly haven’t seen it. The comments I HAVE seen suggest Mr. Bounds views this as a matter of clumsy word choice and youthful indiscretion — an issue that he can dismiss with a little wave of the hand. In my view, he’s wrong, and an individual up for a lifetime seat on a federal bench must do better than that. But his nomination has moved forward anyway.

This action by the majority throws in the dustbin a century of bipartisan tradition, it cheapens the “advice and consent” role of the Senate and, and it cedes power to the executive branch.

First, to explain what I mean, let me discuss the practice we maintain in Oregon with respect to judges. When there are vacancies on the bench, Oregon Senators convene an independent committee of people from all over the legal community to select and interview candidates for judicial nominations. The committee performs a thorough, statewide search, it conducts rigorous interviews, and it makes recommendations to Oregon’s Senators. Senator Merkley and I review those recommendations, and we submit a short list to the president for his consideration. For us, this process is the core of what “advice and consent” is all about when it comes to judicial nominees. We even wrote to the current White House Counsel very early on in the administration — more than a year ago — to make sure they knew about our practice.

As part of the work the independent committee does in Oregon, candidates are asked whether anything in their pasts would have a negative impact on their potential nomination. Any lawyer who’s read up on a hard-fought nomination in the past ought to know that inflammatory writings about women, people of color, and LGBTQ Americans certainly qualify as potentially threatening to a nomination.

But Mr. Bounds did not alert the committee to his writings. He said there was nothing to worry about. In fact, Mr. Bounds highlighted his pre-college days in an effort to paint a picture of diversity and tolerance, conveniently skipping over his intolerant writings. He misled the committee by omission, and he was wrong.

And it was not until AFTER the committee finished its work that these writings came to light. That’s why five of the seven members of the independent Oregon committee, including the chair, said this would have changed their decision to include Mr. Bounds among their recommended candidates. But the administration and the majority on the Senate Judiciary Committee have moved forward with his nomination anyway in direct violation of our longstanding practice.

Here’s the second tradition that could be thrown out — one that goes back even further. Not once in more than a century has the Senate held a hearing on a judicial nominee without input from either home-state Senator. This tradition has stood for 101 years benefitting both sides as a check on the power of the president.

In fact, let me quote a letter that the entire Senate Republican Conference sent to the last president at the very beginning of his term in 2009. They wrote that dating back to the nation’s founding, the Senate has a “unique constitutional responsibility to provide or withhold its Advice and Consent on nominations.”

They continued, quote, “Democrats and Republicans have acknowledged the importance of maintaining this principle, which allows individual senators to provide valuable insights into their constituents’ qualifications for federal service.”

So in 2009 when a Democrat was in the White House, my Republican colleagues insisted on maintaining this tradition. And Democrats did. The last administration and Democratic leaders here in the Senate respected the request of our Republican colleagues. There were no hearings on judicial nominations when neither home-state Senator had consented. Now the Republican majority is on the verge of breaking that practice, in lockstep with the White House, to seat a nominee with serious red flags.

Colleagues, the Trump White House might believe that providing advice and consent begins and ends with us rubber-stamping whatever names they send up. And the majority here in the Senate might be happy to go along. But that is the wrong way to go.

Neither Senator Merkley nor I have given our approval for this nomination to go forward. We are not stonewalling. We are not fishing around for any old reason to bring down a Republican nominee. We are honoring the bipartisan tradition that has stood for more than a century and fulfilling our constitutional duties.

I have declined to give approval for a hearing because Mr. Bounds purposely misled the independent committee that reviewed his candidacy. He omitted information that was vitally important to the vetting process. And that cannot be dismissed, ignored or wished away. It is a fact — and a disqualifying one.

I yield the floor.

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