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Ryan Bounds at his Senate Judiciary Board audition (photo by David Lat)

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To the account of Robert Bork, Miguel Estrada, and Merrick Garland, add the name of Ryan Bounds. The accessory contagion of the administrative choice activity has claimed addition victim — and the altercation acclimated to disqualify him from administrative appointment couldn’t be added wrong.

Yesterday, Senate Majority Baton Mitch McConnell (R-Ky.) and the White House withdrew the Ninth Circuit choice of Ryan Bounds, afterwards it became bright that not all Republicans were on lath to affirm him. In agreement of how that adverse arrangement of contest abundant — in the deathwatch of a acknowledged vote for cloture to end agitation on the nomination, which was accurate by all Republicans — see my beforehand story, Deconstructing The Defeat Of Ryan Bounds’s Ninth Circuit Nomination.

The purpose of this adventure is different. I’m autograph today in aegis of a acceptable and appropriate person, an accomplished lawyer, a longstanding accessible assistant who aloof capital to abide that accessible service  — and yes, a acceptable friend.

(Disclosure: as I’ve mentioned abounding times in these pages, Ryan and I accept been accompany aback law school, and we clerked calm for Judge Diarmuid F. O’Scannlain, whose bank Bounds would accept filled. So I’m not objective, and you can administer whatever abatement agency you like to my arguments. But amuse do appoint with my arguments, instead of artlessly absolution them afterwards account because of this claimed connection.)

Ryan Bounds, 45, is a abominable admired federal prosecutor in Portland, Oregon, a alum of Stanford Academy and Yale Law School, with a ample résumé featuring a clerkship to a arch ablaze of the federal judiciary; clandestine convenance at Stoel Rives, one of Portland’s top law firms; and ample government experience, including account in the U.S. Attorney’s Office, Capital Justice, and the White House (under the George W. Bush administration). Ryan won approval from the American Bar Association and from the bipartisan administrative alternative board set up by Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley, and his abilities accept never been in doubt.

Lacking qualifications-based area for advancing Ryan — which are, in my view, the arch acumen for criticizing a appointee (see the animadversion to this above-mentioned column for my views) — his opponents on the larboard army three arguments adjoin his nomination:

1. Ryan was nominated afterwards able appointment of his home-state senators, neither of whom alternate a “blue slip” accusation abutment of his nomination, and the abridgement of dejected block should be baleful to his choice (as it was beneath assertive above-mentioned chairs of the Senate Judiciary Committee).

2. Ryan bootless to acknowledge to the Oregon senators’ administrative alternative board assertive academy writings of his in which he fabricated statements that advanced groups like the Alliance for Justice and Bodies for the American Way accept characterized as “racist” and “offensive.”

3. Based on those aforementioned academy writings, Ryan is a racist (and sexist and homophobe).

I’m activity to focus on the third argument, which I appearance as the best unwarranted. For altercation of the dejected blooper issue, see my New York Times op-ed, broadcast aloft in this Above the Law post. For altercation of the acknowledgment issue, see this column by Ed Whelan.

Let’s alpha with a definition. Here’s one for “racist”: “a actuality who shows or feels bigotry or ageism adjoin bodies of added races, or who believes that a accurate chase is above to another.” So, for example, a actuality who believes that one chase is above and addition is inferior — e.g., beneath intelligent, beneath moral, beneath clean, etc. — and who treats bodies abnormally based on such behavior would be a racist.

This isn’t discussed in the definition, but in my view, racism should not be accountable to a “disparate impact” analysis. In added words, benign one activity over another, alike if the activity you favor ability disproportionately account or accountability one chase or another, doesn’t automatically accomplish you a “racist.” For example, behavior like blurred taxes or auctioning acknowledging activity would affect altered ancestral groups differently, but if your abutment for such behavior flows from factors added than ancestral animus, you aren’t a “racist” artlessly for captivation such views.[1]

Now let’s about-face to Ryan Bounds. The attacks on him as racist are not based on his acknowledged career. He doesn’t represent white supremacists (although abounding of the attorneys who accept represented white supremacists over the years, such as ACLU attorneys arguing for the First Amendment, aren’t racists either). Bounds is a federal prosecutor who works on white-collar and ecology cases (and abounding of the victims of these crimes, abnormally ecology ones, arise from boyhood or disadvantaged communities).

Outside of the courtroom, Ryan served for four three and a bisected years as a baton of the Equity, Diversion, and Admittance Board of the Multnomah Bar Association (Multnomah County, home to Portland, is Oregon’s bigger county). In this role, he formed endlessly to put calm abundant educational, scholarship, and mentoring programs aimed at advancing assortment aural the acknowledged profession. [UPDATE (7/23/2018, 3:30 p.m.): Per the Stanford Daily, Ryan served as a subcommittee armchair for three years and chaired the capital board for bristles months, which is why I’ve afflicted four to three and a half.]

Working on assortment initiatives doesn’t assume like the best use of a racist’s time. For added advice about Ryan’s abundant assignment for the ED&I Committee, see his abandonment letter, afterwards opponents of his administrative choice bedeviled aloft his academy writings to drive him out of the Committee.

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(Some of Ryan’s critics ability affirmation — afterwards affirmation — that his assignment on this board was aloof a appearance for his racism, or done to advice beforehand his administrative ambitions. But spending four years and endless hours on assortment work, which he started during a presidential administering absurd to appoint him to the federal bench, strikes me as an abominable lot of accomplishment for a actual abstract benefit.)

Let’s now attending at Ryan’s bookish writings for the Stanford Review, which accept been bedeviled aloft by many, including my aide Elie Mystal, as affirmation of Ryan’s declared racism. I accept argued that academy writings of administrative nominees should not be accordant to assessing their fettle for administrative appointment a division of a aeon afterwards (see my Wall Street Journal op-ed and this accompanying ATL post), but let’s set that abreast for now and dig in.

I’ll go through the op-eds accent by the Alliance for Justice, which took the beforehand in tarring Ryan as a racist. They based their assay on excerpts — but in anniversary case, you should apprehend the complete, basal op-ed (as I accept done, abounding times — clashing the all-inclusive majority of bodies calling Ryan a racist). I accept affiliated them all here.

First up, from the AFJ abode (I’ve aggregate the AFJ’s excerpts thematically or based on the basal op-ed they’re taken from):

Bounds wrote alarmingly about “strident ancestral factions in the apprentice body” and their assignment to “build tolerance” and “promote diversity.” He went on to affirmation that the efforts of these accepting “seem consistently to accord added to akin consciousness, aggravating intolerance, and allocation cultural identities than abounding a Nazi bookburning.”

Bounds complained about multicultural organizations at the university who “divide up by chase for their feel-good indigenous hoedowns.”

Bounds wrote that “race-focused groups” should not abide on campus, claiming that the “existence of indigenous organizations is no assured prerequisite to advancement a assorted community—white students, afterwards all, assume to be accomplishing all appropriate afterwards an Aryan Apprentice Union.”

I don’t accept these comments to be racist (read the abounding op-ed here). As I wrote in an Oregonian op-ed (co-authored with Portland advocate Courtney Angeli):

Do organizations that ascertain themselves alone by some accurately adequate appropriate sometimes aback accord to the actual altercation they seek to eradicate? Ryan aloft this catechism in one of his columns, and it’s absolutely the affectionate of boxy catechism that a anxious academy apprentice should be asking. In fact, adolescent Ryan argued that all accepting should be advised as individuals and judged, as Martin Luther King, Jr., said, on “the agreeable of their characters.”

Is Ryan’s allegory to “Nazi bookburning” antic and hyperbolic? Yes. Is the bookish of an “Aryan Apprentice Union” unnecessarily inflammatory? Sure. But that’s how academy kids write, continued on affection and abbreviate on perspective. It doesn’t accomplish them racist; it aloof agency they’re abhorrent and immature.

Ryan’s basal point, apprehensive whether an boundless focus on chase can aggravate rather than allay ancestral tension, isn’t racist — and isn’t alfresco the mainstream. It reminds me of Chief Justice John Roberts’s acclaimed quotation: “The way to stop bigotry on the base of chase is to stop acute on the base of race.”

Next excerpts (from the aforementioned basal op-ed):

Using racist and abhorrent language, Bounds claimed that there were communities on campus who believed that the “opponent is the white macho and his assembly of meanspirited lackeys: ‘oreos,’ ‘twinkies,’ ‘coconuts,’ and the like.”

Similarly, Bounds accused campus “race-thinkers” of abusive African-Americans as “oreos,” “Uncle Toms” or “sell-outs” if they alone “victimhood status.”

There’s no racism here. Abounding bodies afield accept that Ryan was adopting or deploying these abhorrent agreement himself. Instead, it was absolutely the opposite: Ryan was aspersing the use of these terms, which are active by those on the larboard to beforehand conservatives who arise to be associates of boyhood groups. This point was again antiseptic at Ryan’s accepting hearings — watch the video at about the 1:18:16 mark (Senator Cruz) or the 1:48:36 mark (Senator Crapo) — but based on some of the tweets I’ve received, abounding abide abashed on this score.

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There’s a acumen why these agreement arise in Ryan’s basal op-ed central scare-quotes. No bourgeois attacks associates of boyhood groups as “oreos,” “twinkies,” or “coconuts.” To the contrary, conservatives embrace minorities who cartel to anticipate differently. Who goes afterwards Justice Clarence Thomas as an “Uncle Tom”? Not conservatives.

Back to the AFJ:

Bounds wrote condescendingly and dismissively about animal beforehand on campus and argued that to analyze and abuse declared perpetrators, the university should beforehand the active “beyond a reasonable doubt” accepted of affidavit acclimated by law enforcement. He wrote: “Expelling accepting is apparently not activity to accord a abundant accord adjoin a abduction victim’s recovery; there is no moral acute to accident arrant absurdity in accomplishing so.”

This ability be the affliction animadversion by Ryan. Obviously a convalescent victim of animal beforehand would account from not seeing her antagonist about campus any longer.

But I don’t accept Ryan was motivated by sexism. If you apprehend the abounding op-ed, you’ll see Ryan apropos to abduction and animal beforehand as “traged[ies]” — and apprehensive about the best way to abode them, in a way that balances the rights of victims with account for due process. As Courtney Angeli and I argued in our Oregonian op-ed, whether universities or bounded law administration should booty the beforehand in administration cases of animal assault, accustomed their corresponding competencies, is a accepted accountable for discussion, and one on which reasonable minds can disagree.

Moving on:

Bounds decried “sensitivity” appear ancestral minorities and the LGBTQ community, and activism by those communities as a “pestilence” that “stalks us” and “threatens to base our bookish experience.”

You can apprehend the basal op-ed criticizing the band of “Sensitivity” — assets in the original, absorption a active Ryan Bounds aggravating to get a acceleration out of advanced readers — here.

On the affair of boyhood and LGBTQ rights, I can attest, as a gay man of color, that I’ve never apparent Ryan do or say annihilation absorption hostility toward minorities or LGBTQ individuals. I accede with our above boss, Judge O’Scannlain, who said in a account about Ryan that “there isn’t a racist cartilage in his body.”

Yes, I apperceive — cogent you about how admiring Ryan was of me aback I was disturbing to arise out, or how he blithely abounding my bells years later, will be mocked as the “some of my best accompany are gay” defense. But let me add one added abstracts point.

In our 3L year of law academy (1998-99), Ryan and I served as vice-presidents of the Yale Federalist Society, which complex us bringing speakers to campus and ambience up debates. One of our best well-attended and acknowledged contest was a agitation on same-sex alliance — which was, at the time, a hotly debated topic.

After the event, we went to cafeteria with the advisers who debated, and one of them went about the table allurement the accumulated Fed Soc admiral whether we accurate gay alliance as a activity amount (as adjoin to a amount of built-in law) — i.e., would we vote for alliance adequation at the election box (as adjoin to arty it through administrative decision).

Conservative and closeted at the time, I voted adjoin gay marriage. But Ryan — aback in 1998-99, aback gay alliance was acutely unpopular, anon afterwards the Aegis of Alliance Act — voted in favor it. Far from actuality dismissive of LGBTQ rights, Ryan was added admiring of them than I was — and far advanced of his time.

Okay, let’s go aback to Ryan’s “Sensitivity” article, which needs to be apprehend in context. This was during the “culture wars” of the backward 1990s, and the campuses of aristocratic universities like Stanford were a acute battleground. Agitation about the best way to beforehand chase relations alveolate the “color-blindness” camp, composed of bodies like Ryan who capital to focus beneath on chase and ethnicity, adjoin the “multiculturalist” camp, composed of bodies who capital to access ancestral consciousness. Both abandon believed that their access was the above one for acceptable alternate toleration, civility, and respect.

Against this backdrop, the Bounds op-ed is artlessly an altercation for the color-blindness academy — worded in an absolutely annoying and conceivably damaging way, but advancing a position that was broadly captivated at the time (and continues to be captivated by many, alike if it’s a boyhood position that’s abbreviating in popularity, in our abominable race-conscious era).

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Bounds’s altercation was that an boundless focus on “Sensitivity” — walking on eggshells aback discussing acute issues, for abhorrence of behind one accumulation or addition — could accord acceleration to a air-conditioned aftereffect that would abuse bookish discourse. If you reread the op-ed, but alter the chat “Sensitivity” with “political correctness,” you see the innocuous, about blah attributes of his reflections.

Innocuous, because Ryan was arguing for what he anticipation would get us to a apple with beneath discrimination. As he wrote abroad in the “Sensitivity” op-ed, in a area never quoted by his opponents:

[Sensitivity] divides, it discomfits, and it about never gets us what we absolutely want: abandon from the misunderstanding, prejudice, and affray that accord in anniversary of us affectionate our own problems added than anyone abroad possibly could. So, audacious hunters of the apocryphal idol, chase no longer. About-face your eyes from the adorable bubble of Sensitivity towrd a beneath arrogant angle of alternate accepting and support, and ascertain a association that Sensitivity conspires to destroy.

Reasonable minds ability disagree over Bounds’s argument, but this is a reasonable point, in account of aggravating to actualize a apple with beneath “misunderstanding, prejudice, and strife.”

Speaking of a air-conditioned effect, what aloof happened to Ryan Bounds will accept an aftereffect — a abrogating one, in my appearance — on administrative nominations activity forward. Both Republicans and Democrats now accept authorization to abrade the annal of nominees, activity aback to academy (or conceivably alike aerial school), to acquisition fodder for opposition.

And adolescent bodies who ability anytime aspire to administrative or political appointment accept abstruse that they should aloof accumulate their mouths (or laptops) shut. As I wrote in the Wall Street Journal:

Judging bodies today based on things they wrote or said as undergraduates would block abounding abominable able bodies from accessible service. The accident would be abnormally abundant accustomed their approved alertness to attack with account and claiming accepted wisdom, alike at the accident of actuality amiss or causing offense. Penalizing bookish analysis will accomplish academy a airless experience. Accepting will abstain adage or accomplishing annihilation accidentally unconventional, and we’ll end up with a administration chic of banal “organization kids,” in David Brooks’s phrase.

Finally, the AFJ additionally mentions the Stanford Review’s use about this time of “a awkward burlesque of a Native American figure” to allegorize a affection of the assessment folio alleged “Smoke Signals.” Bounds’s claimed captivation in this is not clear; he was an assessment editor at the time, although not the biographer or illustrator amenable for the caricature, it seems. But alike bold his involvement, this affectionate of ancestral aloofness or alike racism — from 25 years ago, counterbalanced adjoin Ryan’s far added contempo assignment to beforehand assortment and admittance in the acknowledged profession — strikes me as a attenuate reed aloft which to adhere bounce of his nomination.

Allow me to abutting by reminding anybody that this is aloof one person’s perspective; booty these thoughts for whatever they’re worth. As I’ve mentioned again in these pages, I’m not cold aback it comes to Ryan Bounds. So abolish my arguments if you ambition (although I’ve approved my best to ability them to address to cold and reasonable moderates). You can hardly accusation me for absent to avert a longtime acquaintance from what I appearance as arbitrary attacks.

I think, however, that bodies of acceptable will on both abandon can agree: the administrative nominations activity is acutely flawed. And it won’t be accepting bigger anytime soon.

[1] I’m application a analogue of “racist” that I accept to be adequately neutral. But you ability booty a broader appearance of the appellation “racist” (as does my aide Elie Mystal, who believes that Chief Justice John Roberts and the added bourgeois justices are white supremacists). You might, for example, booty the position that we accept acutely racist political, social, and bread-and-butter structures, which accept afflicted minorities for centuries, and anyone who is neither an afflicted boyhood nor addition angry for the accelerating eyes of how to about-face this abuse is a “racist.”

If that’s your view, again yes, Ryan Bounds is a racist — and so are all Republicans and best Americans, abnormally white Americans. But in my view, that ample a analogue renders the appellation “racist” beneath allusive than a added tailored one.

UPDATE (7/22/2018, 1:45 p.m.): The Wall Street Journal and the National Review both issued editorials arguing that Ryan was advised unfairly and should accept been confirmed. The WSJ beat declared Ryan’s writings as annihilation added than “a academy kid autograph sarcastically about political correctness, character politics, and multiculturalism on campus,” while the NRO beat declared that “Bounds’s views, while acutely expressed, were mainstream, defensible, and absent of any adumbration of abhorrence adjoin anyone based on his race.” I accede with these characterizations of the op-eds.

Good Riddance to ‘Blue Slips’ [New York Times]Give Amnesty for Academy Writings [Wall Street Journal]Ryan Bounds passes aggregation with those he allegedly maligned [Oregonian]Beyond the Bounds of Fairness [National Review]Democrats’ Beyond-Bounds Demagoguery [National Review]

Earlier:

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David Lat is editor at ample and founding editor of Above the Law, as able-bodied as the columnist of Supreme Ambitions: A Novel. He ahead formed as a federal prosecutor in Newark, New Jersey; a action accessory at Wachtell, Lipton, Rosen & Katz; and a law agent to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can affix with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can ability him by email at [email protected]

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