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Yesterday afternoon, Sens. Tim Scott, R-S.C., and Marco Rubio, R-Fla., blocked the confirmation of a conservative judicial nominee to the leftist Ninth Circuit Court of Appeals at the last minute, based on the nominee’s college writings criticizing multiculturalism. This information had been available since February, but they waited until the last minute, after 30 hours of debate time had been wasted. This is a very revealing betrayal and is ominous for several reasons.
On September 7, 2017, President Trump nominated Ryan Bounds to a vacant Oregon seat on the U.S. Court of Appeals for the Ninth Circuit. Bounds is currently an assistant United States attorney for the District of Oregon. He also clerked for Diarmuid O’Scannlain, the rare conservative Ninth Circuit judge whom he was nominated to replace.
From day one, Democrats made hay of Bounds’ writings at college (not even in law school), which poked fun at the snowflake mentality of college students and criticizing the divisive nature of identity factions on campus. Bounds, even at a young age, actually perfectly articulated a view that many conservatives hold — that an obsession with dividing people into factions is not only superfluous but harmful to our common cause as Americans. Bounds contended that the “existence of ethnic organizations is no inevitable prerequisite to maintaining a diverse community — white students, after all, seem to be doing all right without an Aryan Student Union.”
Yes, I understand why that would rile up Democrats. It challenges their entire belief of racial supremacism and politics of division over a true color-blind meritocracy. This is why both Oregon Democrats in the Senate — Ron Wyden and Jeff Merkley — opposed Bounds’ nomination. His writings served as the predominant point of contention during his confirmation hearing before the Judiciary Committee in May. At the hearing, Bounds apologized, a bit too much in my view, for his remarks as a youngster. This is why all the Republicans on the Judiciary Committee voted to confirm him. Even Jeff Flake, a champion of sanctimonious virtue-signaling and identity politics, defended him during the hearing.
Why is it that Rubio and Scott waited until the last minute, at the most embarrassing time for the president and the majority leader, to act offended about something that was the most notorious fact about the nominee from the get-go? Evidently, Scott shared this information with Rubio at the last minute and they both agreed to virtue-signal and walk into the devastating identity-politics trap of the Left and oppose the nomination. The White House, in turn, withdrew his nomination.
This is very disturbing for a number of reasons:
- Now the Democrats know how to pick the lock on the all-important issue of Republican judicial nominations. Any true originalist will likely have writings that upset the political correctness cartel because, by definition, anti-constitutional jurisprudence is always threaded with the protection of identity politics. All they have to do is threaten those who are sensitive to such virtue-signaling, like Scott and Rubio, to scuttle the nominee. They will try this tactic on Supreme Court nominees as well. Kavanaugh has a wealth of writings. As Schumer spokesman Matt House told the media, “A lower court nominee’s college writings are relevant but a Supreme Court nominee’s White House writings aren’t? I don’t think so.”
- Rubio claims that he’s upset Bounds failed to disclose his writings to this phantom judicial selection committee created by Oregon’s two senators. But Bounds was explicitly told that he only had to disclose writings from law school onward. The writings that caused the uproar were from college. What’s next? Are we going to draw the line as far back as elementary school? Rubio and Scott are creating a baseline precedent where nominees will either have to inform Democrats of every non-liberal sentence they’ve ever uttered in their lives or risk being disqualified as dishonest.
- This will incentivize the White House to pick more stealth nominees who don’t wind up being conservative. Ironically, just last week the Senate voted to confirm the first left-wing Trump nominee — also to the Ninth Circuit. Mark Jeremy Bennett of Hawaii believes gay marriage is in the Constitution but self-defense is not, yet Marco Rubio (but not Tim Scott) voted to confirm him! What gives? Either way, the White House will now be more inclined to nominate those who garner Democrat support.
- It is this political view of racial division that is the hallmark of the Ninth Circuit — ruling based on identity politics rather than the written letter of the law and the Constitution. If we ever hope to make a dent in the Ninth Circuit, we must nominate people to the court who believe in the rule of law, not in divisive identity politics. Often, even originalists are scared to issue originalist rulings because they contradict the prevailing politically correct culture on a given issue. In that vein, Bounds is exactly the man we need on the Ninth Circuit. Bounds didn’t write anything racist; he was calling out the racist names, dogma, and mindset of those who seek to divide by race.
- The fact that Rubio and Scott are bothered by such views is very troublesome even outside the context of judicial nominations. Identity politics is the lead ship in the leftist armada, and if we are not willing to show we don’t fear it, the Left will win on every issue. Either Rubio and Scott have an incorrigible fear of Democrats playing the race card, or, to echo Dianne Feinstein, the dogma itself lives loudly within them.
Where are the gutsy U.S. senators who believe in conservative dogma?
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.