Republican Sens. Marco Rubio and Tim Scott torpedoed a conservative nominee to the Ninth Circuit appeals court on Thursday whom even liberals called qualified for the bench, citing college-era political comments, energizing Democrats, and creating a new line of attack against the confirmations of dozens of other judicial picks, including Brett Kavanaugh for the Supreme Court.
Ryan Bounds, an Oregon federal prosecutor who clerked for Judge Diarmuid O’Scannlain on the Ninth Circuit, had an impressive array of credentials that impressed people on the left and the right. Even the left-wing American Bar Association (ABA) unanimously voted to rate Bounds as “qualified” for the Ninth Circuit after they reviewed his full record, showing that even those firmly aligned with liberal priorities acknowledge that college-era political riffs do not disqualify someone from a federal judgeship.
But what should have been a historic moment for the Trump administration and the Republican Party to nominate a qualified judge ended in a failed nomination due to Rubio and Scott’s efforts to take down a conservative judge due to misgivings about the nominee’s writings in a college newspaper.
Scott privately told Rubio on the Wednesday before the vote that he had concerns about Bounds’ “racially insensitive” writings in the Stanford Daily, a conservative college newspaper, back in 1995.
Rubio made a pact with Scott to vote no on Trump’s nominee, promising that Republicans would vote the same way. Both senators voted “yes” on Bounds in the procedural vote, and the Senate Judiciary Committee approved his nomination in an 11-10 vote in June.
But instead of letting the White House and the Senate Judiciary Committee know of their misgivings about Bounds months ago, Rubio and Scott raised their concerns about the Oregon federal prosecutor right before Thursday’s Senate vote—which Senate Republicans needed 50 votes in order for Bounds’ nomination to pass.
Bounds’ writings were well known on Capitol Hill since he was nominated in September 2017, but Rubio did not feign ignorance of them. Instead, he decided to speak on the record in a Thursday interview supporting Scott’s decision to take down a judicial nominee who became a priority for the conservative movement.
“Sen. Scott needed more time to talk to people who knew him and that’s not available. Sen. Scott said he couldn’t vote for him today if the vote was now. I support him in that decision,” Rubio told Roll Call.
Bounds’ failed nomination has already emboldened Democrats to put forth a strategy of judicial activism.
The Washington Post noted Thursday that the after Senate’s failure to nominate Bounds to the Ninth Circuit, Democrats are using the opportunity to demand that Supreme Court nominee Brett Kavanaugh release more than 1 million pages of documents—even if the writings have no basis in judicial opinion.
Even though Kavanaugh has a lengthy public record of opinions from serving as a judge on the U.S. Court of Appeals for the D.C. Circuit and working in the Bush White House, the failed Bounds nomination gives Senate Democrats an opportunity to obstruct judicial nominees on partisan grounds.
Senate Minority Leader Chuck Schumer (D-NY) has already responded to the Bounds fiasco by demanding all college-era writings from Brett Kavanaugh, plus every document he’s been associated with in the almost-30 years since then. Democrats are looking for other nominees’ writings as well in their quest for judicial activism.
Leftists, who have long sought out activist judges to get their priorities across, are also using establishment Republicans willing to nominate moderates to get their agenda across.
Billionaire Paul Singer–one of Rubio’s top presidential funding sources–pours tremendous funds into those left-of-center priorities—including amnesty, open borders, the LGBT agenda, gun control, abortion, and racial preferences.
As Democrat-aligned interest groups are putting out action alerts and fundraising letters, energized by Thursday’s defeat of a conservative court pick, Rubio and Scott handed the leftists a win at the expense of conservatives and the Republican Party.
The analogy to Kavanaugh and other nominees falls apart, however, because Bounds’ confirmation involved known and published writings containing political content.
The demands for Kavanaugh and other nominees are a fishing expedition where there are no known controversies, and the documents often do not even express their personal views. Objecting to the public political writings of one nominee is not the equivalent of demanding private non-political documents of another nominee.
This story continues to unfold, and the fallout for Rubio and Scott from major conservative groups whose efforts have now suffered as a result of this setback for the White House is not yet clear.