[Congressional Record Volume 164, Number 74 (Tuesday, May 8, 2018)]
[Senate]
[Pages S2540-S2541]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Ryan Bounds

  Mr. President, there is now a vitally important debate happening on 
the Senate floor with respect to judicial nominations. What is clear to 
me is, the majority is now chipping away at a century of bipartisan 
tradition that has protected the interests of those in our home State 
and served as a check on the power of the Executive. It is the Senate 
bowing down to the White House, derelict in its constitutional 
responsibility to provide or withhold advice and consent on nominees. 
In my view, this is a dangerous mistake that is going to have harmful 
consequences for decades.
  Today, the debate at hand is over the mishandling of the nomination 
of Michael Brennan to the Court of Appeals for the Seventh Circuit. 
This could be the first time in decades that a judicial

[[Page S2541]]

nominee is confirmed over the objection of a home State Senator. 
Tomorrow, the Senate Judiciary Committee is going to throw out the 
window a bipartisan practice that dates back more than a century when 
it holds a hearing on the nomination of Ryan Bounds to sit on the Ninth 
Circuit Court of Appeals. It goes without saying that individuals who 
are up for a lifetime seat on a powerful Federal court must be 
forthcoming and truthful in the nomination process. My view is, Ryan 
Bounds hasn't even cleared that low bar. Mr. Bounds misled the 
independent committee that considers potential nominees in Oregon by 
withholding inflammatory writings that reveal disturbing views on 
sexual assault and on communities of people who are vulnerable and 
disadvantaged.
  He has had ample opportunity to clean up this mess, express remorse, 
and explain how his views have changed, but I haven't seen it. The 
comments I have seen suggest Mr. Bounds views this as a matter of poor 
word choice and youthful indiscretion--an issue he can almost dismiss 
with a small wave of the hand. In my view, that is wrong, he is wrong, 
and an individual up for a lifetime seat on a Federal bench has an 
obligation to do better than that. Yet his nomination has moved forward 
anyway.
  This action by the majority--what will happen tomorrow unless common 
sense and good will and tradition prevail tonight--will throw in the 
dustbin a century of bipartisan tradition. Tomorrow will cheapen the 
advice and consent role of the U.S. Senate, and this body will cede 
power to the executive branch.
  First, to explain what I mean, I am going to discuss the practice we 
have maintained in Oregon with respect to judges. When there are 
vacancies on the bench, Oregon Senators convene an independent 
committee of Oregonians from all over the legal community to select and 
interview candidates for judicial nominations. The committee performs a 
thorough, statewide search, conducts rigorous interviews, and then 
recommendations are made to Oregon's two Senators. Senator Merkley and 
I review those recommendations, and we submit a short list to the 
President for his consideration. For us, this process is the core of 
what advice and consent is all about when it comes to judicial 
nominees. We even wrote to the current White House counsel very early 
on in the new administration--now more than a year ago--to make sure 
they were up to date about this longstanding Oregon practice.
  As part of the work the independent committee does in Oregon, 
candidates are asked whether anything in their past would have a 
negative impact on their potential nomination. Any lawyer who has read 
up on a hard-fought nomination in the past ought to know that 
inflammatory writings about women, people of color, and LGBTQ Americans 
certainly qualify as potentially threatening to a nomination. Mr. 
Bounds, however, did not alert our Oregon committee to his writings. He 
said there was nothing to worry about. In fact, he highlighted his 
precollege days in an effort to paint a picture of diversity and 
tolerance, conveniently skipping over his later intolerant writings. My 
view is that Mr. Bounds misled the committee by this omission, and he 
was wrong to do so.

  It was not until after the committee finished its work that these 
writings came to light. That is why five of the seven members of the 
independent Oregon judicial selection committee, including the chair, 
said that this would have changed their decision to include Mr. Bounds 
among the committee's recommended candidates. Yet the Trump 
administration and the majority on the Senate Judiciary Committee have 
moved forward with his nomination anyway in direct violation of our 
longstanding practices.
  Here is the second tradition that could be thrown out, and it goes 
back yet further. Not once in more than a century has the Senate held a 
hearing on a judicial nominee without having input from either home-
State Senator. This tradition has stood for 101 years and has benefited 
both sides as a check on the power of the President.
  Let me briefly quote a letter that the entire Senate Republican 
Conference sent to the last President at the beginning of his term in 
2009. They wrote that dating back to the Nation's founding, the Senate 
has had a ``unique constitutional responsibility to provide or withhold 
its Advice and Consent on nominations.''
  They continued: ``Democrats and Republicans have acknowledged the 
importance of maintaining this principle, which allows individual 
senators to provide valuable insights into their constituents' 
qualifications for federal service.''
  So, in 2009, when a Democrat was in the White House, my Republican 
colleagues stood firm on maintaining this tradition, and the Democrats 
did. The last administration and Democratic leaders here in the Senate 
respected the request of our Republican colleagues. There were no 
hearings on judicial nominations when neither home-State Senator had 
consented. Now the Republican majority is on the verge of breaking that 
practice, in lockstep with the White House, to seat a nominee when 
there are, in my view, serious red flags.
  To my colleagues in the Senate, the White House might believe that 
providing advice and consent begins and ends with this body's 
rubberstamping whatever names are sent, and the majority in the Senate 
might be happy to go along with that. I believe that is the wrong way 
to go.
  Neither Senator Merkley nor I have given our approval for this 
nomination to go forward. As I have noted in conversations with the 
chairman of the committee, we are not stonewalling, and we are not 
fishing around for any old reason to bring down a Republican nominee. 
We are honoring the bipartisan tradition that has stood for more than a 
century, and we are fulfilling our constitutional duties.
  I have declined to give approval for a hearing because I believe Mr. 
Bounds purposefully misled the independent Oregon committee that 
reviewed his candidacy. He omitted information that was vitally 
important during a critical time of the vetting process. That cannot be 
dismissed, ignored, or wished away. It is a fact and, in my view, a 
fact that is a disqualifying one.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Johnson). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. NELSON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.