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Lessons From a Failed Nomination, for Both Brett Kavanaugh and the Senate

WASHINGTON — The doors to the Republican cloakroom off the Senate floor swung open and out walked Sen. Ron Wyden, D-Ore., who is not usually found in the inner sanctum of the majority party.

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Lessons From a Failed Nomination, for Both Brett Kavanaugh and the Senate
Carl Hulse
, New York Times

WASHINGTON — The doors to the Republican cloakroom off the Senate floor swung open and out walked Sen. Ron Wyden, D-Ore., who is not usually found in the inner sanctum of the majority party.

He had been buttonholing Republican colleagues, trying to persuade them that racially charged college writings by Ryan W. Bounds, a federal appeals court nominee from Wyden’s home state, were disqualifying and that he should be rejected. His crusade seemed unlikely to succeed, given that disciplined Senate Republicans have been pushing through Trump administration judicial picks with assembly-line efficiency over the heated complaints of Democrats.

But in a stunning development, the nomination of Bounds was withdrawn at the last minute Thursday because of Republican objections, a sharp turn of events with significant implications for both the Senate and the coming showdown over the nomination of Judge Brett Kavanaugh to the Supreme Court.

“Today, the Senate came to its senses with respect to judges,” said Wyden, who teamed up with his home-state Democratic colleague, Jeff Merkley, to try to educate Republicans about Bounds’ writings from his time at Stanford. (Democrats cited numerous articles they considered racist, inflammatory and offensive, and also said Bounds had not been forthright about producing them.)

Bounds’ nomination was pulled after Sen. Tim Scott of South Carolina, the only black Republican senator, made clear he would not vote for him because of the writings, despite a hastily arranged face-to-face meeting with the nominee. Sen. Marco Rubio, R-Fla., quickly sided with his close friend Scott, and other Republicans also signaled they would vote against Bounds.

His nomination was scratched to avoid an embarrassing defeat for President Donald Trump, a rare setback in the administration’s determined march to put conservatives on federal courts around the country. Bounds was to be named to the 9th U.S. Circuit Court of Appeals, a court dominated by liberal jurists that has been a particular thorn in Trump's side.

The outcome underscored just how narrow a margin Sen. Mitch McConnell, R-Ky., the majority leader, has to work with when it comes to Kavanaugh. Because of the continued absence of Sen. John McCain, the Arizona Republican being treated for brain cancer, the defection of a single Republican can doom a nominee if Democrats remain united in opposition.

And Democrats pounced on the fact that Bounds was undone by long-ago writings, saying the episode legitimized their demand that all documents from Kavanaugh’s past work in government should be disclosed, even though it might be a ponderous task to produce them and take weeks to review them.

“This nomination’s defeat is a sign of inadequate vetting and excessive haste,” said Sen. Richard Blumenthal, D-Conn., who sits on the Judiciary Committee. “It should stand as a rebuke to my Republican colleagues who are seeking to severely constrict review of Judge Brett Kavanaugh’s nomination to the Supreme Court. Restricting documents and time is a great mistake for lifetime judicial appointments.”

Democrats want access to hundreds of thousands of documents and emails from Kavanaugh’s service in the administration of George W. Bush, and Republicans are resisting. Sen. Charles E. Grassley, R-Iowa, chairman of the Judiciary Committee, says he won’t allow a “government-funded fishing expedition” and notes that many Democrats have already vowed to oppose the nomination without seeing any records.

Sen. Chuck Schumer of New York, the Democratic leader, has refused to schedule the traditional meeting with Kavanaugh and said he wanted to first see progress on an agreement over the documents. The undoing of Bounds is likely to harden the Democratic position and resolve.

The Bounds nomination was already notable because the two Oregon senators had withheld the customary “blue slip” showing their support for the nominee. In the past, such a refusal could doom a nomination because senators were uneasy about advancing judges over the objections of home-state senators, recognizing that the next time it could be them being rolled over.

But Grassley, at the urging of McConnell, has made clear he will not allow the lack of blue slips to derail appeals court nominees over what he calls ideological and partisan reasons. Senate confirmation of Bounds would have been the first in decades — and perhaps the first ever — with no blue slip from either home-state senator. After eliminating the 60-vote filibuster threshold against judges in 2013, Democrats were now powerless to stop Bounds without Republican help.

Though the blue slip issue was not cited as a factor in the failure of the nomination, senators said it was being discussed among themselves on the floor, and that there was relief that the showdown over respecting the arcane Senate practice had not materialized.

“We shouldn’t be walking away from special Senate traditions in this kind of cavalier way,” Wyden said.

One reason for the blue slip practice is to force the executive branch to consult with home-state senators in making judicial picks, fulfilling the “advice and consent” requirement of the Constitution. Oregon’s senators said the White House had not been sincere in trying to work with them, though Republicans said that, in their view, the administration had adequately consulted.

“Hopefully, this will send a message to the White House that you need to engage in authentic consultation if they want to have a smoother path,” said Merkley, who also praised the “courageous stand” of Scott in opposing an administration nominee who appeared headed to a lifetime seat on the bench.

The Oregon senators said they believed that the handling of the Bounds nomination would influence other nominations going forward and could provoke closer scrutiny of judicial candidates by members of both parties. The Stanford articles had been aired during the Judiciary Committee review of the nomination, and Bounds, a federal prosecutor, had apologized for them.

But they were evidently unknown to other Republican senators, who became disturbed that they were being asked to confirm him. With Democrats holding few tools to derail nominations, Republicans have been aggressively filling vacancies on the federal bench. And with Trump so dominating the political discussion, many individual nominations have been getting scant notice.

“In normal times, this should have attracted massive amounts of attention,” said Merkley, who spoke repeatedly on the floor and individually with colleagues about Bounds and the need to preserve the blue slip custom. “We were very afraid this was getting lost. I am still somewhat surprised that we had a successful outcome.”

So were many others both in and outside the Senate.

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