The Senate on Wednesday confirmed a controversial nominee to the San Francisco-based 9th Circuit Court of Appeals over the objections of both home-state senators.
Senators voted 52-45 on Kenneth Lee’s nomination to the influential appeals court, giving President Trump his 40th circuit judge since taking office.
{mosads}Lee’s confirmation came despite neither Sen. Dianne Feinstein (Calif.), the top Democrat on the Judiciary Committee, nor Sen. Kamala Harris (D-Calif.), a 2020 presidential contender, returning a blue slip on his nomination.
The blue-slip rule — a precedent upheld by Senate tradition — has historically allowed a home-state senator to stop a lower-court nominee by refusing to return the blue slip to the Judiciary Committee. How strictly the precedent is upheld is decided by the committee chairman, and enforcement has varied depending on who wields the gavel.
Lee is the fifth appeals judge this year to be confirmed without a blue slip returned from both home-state senators. Before 2019, no appeals judge had been confirmed without a blue slip returned from at least one home-state senator.
Feinstein said the vote on Lee marked the first time that the ranking member of the Judiciary Committee’s blue slip has been ignored.
“Lee repeatedly failed to turn over more than 75 controversial writings and submitted many only after we identified them. Lee took controversial positions in these writings on race, civil rights and voting rights. His lack of candor with the committee should concern all senators,” Feinstein wrote in a tweet.
Senate Minority Leader Charles Schumer (D-N.Y.) knocked Lee ahead of the vote, saying he is an example of a Trump nominee who wants to “turn the clock backwards.”
{mossecondads}”His past writings reveal shocking positions on race and diversity, affirmative action, educational opportunity, women’s reproductive freedom. He once wrote that multiculturalism is a ‘malodorous sickness’ and that sexism … to be ‘irrelevant pouting.’ That’s a man who should be on the bench?” Schumer asked.
Lee has come under fire for his college writings on issues such as sexual assault and AIDS.
In a 1994 law review article, he wrote that “a scientific explanation exists for the higher incidence of AIDS in the gay community. Homosexuals are more promiscuous than heterosexuals, and thus their risk factor increases exponentially.”
In a 1995 article, he questioned why a women would keep working for a man who had assaulted her, writing that if “a lecherous professor grabs a student’s breast, the last thing she would do is continue to accompany him on another trip – let alone four more trips – just so she can hold on to a part-time job.”
Lee apologized for his writings on sexual assault, saying during his confirmation hearing that at the time he didn’t understand workplace dynamics.
Democrats faced long odds for defeating Lee’s nomination. With a 53 seats, Senate Majority Leader Mitch McConnell (R-Ky.) can lose as many as three GOP senators and still confirm a nominee by letting Vice President Pence break a tie.
McConnell views circuit court judges as his top priority and said in 2017 that he didn’t believe opposition from a home-state senator should be enough to effectively veto an appeals court pick.
“In addition to a ‘unanimously well qualified’ rating from the ABA and a favorable report from the Judiciary Committee, Mr. Lee has earned the especially high esteem of one of our own colleagues. The junior Senator from Arkansas attended law school with the nominee,” McConnell said of Lee, referring to Sen. Tom Cotton (R-Ark.).
Judicial nominations have become a focal point for controversy during the Trump presidency, with Republicans setting a record for how quickly they have confirmed appeals court judges.
In 2013, Democrats nixed the 60-vote filibuster for executive and lower-court nominations. Republicans got rid of the same roadblock for Supreme Court judges in 2017 to confirm Justice Neil Gorsuch.
But Democrats have fumed over the decision to confirm circuit court judges over the objections of mostly Democratic home-state senators.
Democrats were able to defeat the nomination of Ryan Bounds to the 9th Circuit last year when Sen. Tim Scott (R-S.C.) warned that he couldn’t support the pick over his writings on race.
But Republicans held a narrower 51-seat majority at the time. Scott signaled earlier this year that he would support Lee’s nomination.
Scott
told McClatchy in March that he had “confidence” in Lee as an appeals court judge.
“I have not heard so far anything that would cause me to turn in an opposite direction,” he said.
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