Wyden and Merkley: Out of Bounds

Senators Ron Wyden and Jeff Merkley (D-OR) should be ashamed of themselves.


The misguided duo: Sen. Ron Wyden (L) and Sen. Jeff Merkley (D-OR)

In their effort to defeat the nomination of Oregon federal prosecutor Ryan Bounds for the 9th U.S. Circuit Court of Appeals, Wyden and Merkley misrepresented the facts, relied on questionable accusations by a left-leaning judicial advocacy group, engaged in the kind of character assassination that is sadly predictable in Washington and obscured their motivations.

In September 2017, President Trump nominated Bounds, who grew up in Hermiston, OR, to fill a vacancy on the markedly liberal 9thCircuit.

That the nomination was made without the advice and consent of Wyden and Merkley hinted at a difficult road ahead. But it was a “Snapshot” report issued in February 2018 by the Alliance for Justice that provided fuel for the arguments used by Oregon’s senators. Without hesitation, they weaponized the report.

But the Alliance was no neutral observer. The Alliance is a group of 130 organizations focused on legal issues to advance progressive causes. In the 1980s, it mounted campaigns against President Ronald Reagan’s appointees to the federal courts and was a key player in a successful scorched-earth attack against D.C. Circuit Court of Appeals Judge Robert Bork, who was nominated to the Supreme Court by Reagan. The Alliance is currently a player in the fight against Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court.

The Alliance’s report was a vehement broadside against Bounds, with particular criticism of some of his writings. “…while Bounds has few public writings, those he does have are deeply disturbing,” the report said. “Particularly noteworthy are several articles Bounds wrote for The Stanford Review while a college student. He expressed hostility toward multiculturalism and diversity, often using derogatory language. Throughout these writings, Bounds displayed a strong intolerance for issues or positions he deemed liberal or progressive.”

Merkley and Wyden jumped on the opportunity to use the Alliance report against Bounds in a barrage of allegations full of sound and fury, but blissfully free of substance. In a joint statement, they asserted, “…Ryan Bounds failed to disclose inflammatory writings revealing his archaic and alarming views about sexual assault, the rights of workers, people of color, and the LGBTQ community.”

The media and liberal organizations embraced the ensuing conflict, highlighting the Alliance’s report, but not its biases, and rarely offering the public online links to the report itself. The Oregonian, the New York Times and other publications and organizations referred repeatedly to Bounds’ “inflammatory” writings.

Asserting that Bounds had “expressed his disdain for multicultural values and organizations” while at Stanford University, the report cited excerpts from Stanford Review articles Bounds had written taking to task some aspects of of multiculturalism for undermining social cohesion.

“During my years in our Multicultural Garden of Eden, I have often marveled at the odd strategies that some of the more strident racial factions of the student body employ in their attempts to ‘heighten consciousness,’ ‘build tolerance,’ ‘promote diversity,’ and otherwise convince us to partake of that fruit which promises to open our eyes to a PC version of the knowledge of good and evil,” an excerpt from a February 1995 article by  Bounds read.

Bounds expressed the opinion that  groups organized around racial identity exhibit “the fundamental behaviors of group think,” have no tolerance for individualism and are too fixated on their “sensitivity”, that  “threatens to corrupt our scholastic experience and tear our student community asunder.”

Bounds may have expressed himself clumsily (he was, after all, a brash undergraduate student at the time), but his opinions then are widely shared today, particularly among conservatives. Today’s critics argue that an overemphasis on multiculturalism undermines national unity, encourages separatism over assimilation and isolates ethnic groups within the body politic.

Kenan Malik, a contributing opinion writer for The International New York Times, addressed the issue in a Foreign Affairs article, “The Failure of Multiculturalism.” Multiculturalists “seek to institutionalize diversity by putting people into ethnic and cultural boxes – into a singular, homogeneous Muslim community, for example – and defining their needs and rights accordingly,” he wrote. “Such policies, in other words, have helped create the very divisions they were meant to manage.”

Similarly, Victor Davis Hanson,a senior fellow at the Hoover Institution, recently argued in the National Review  that an overemphasis on multiculturalism is “dividing up the country according to tribal grievances,” rather than making the nation stronger by encouraging a common culture.

Claire Fagin, former President of the University of Pennsylvania, elaborated. “We are moving into a very, very hyphenated world: It’s Asian-American, African-American . . . it’s so contrary to everything I grew up with . . . when everyone fought to just be American. For many of us who stress pluralism, these are not easy times.”

The Alliance report also took Bounds to task for writing a Commentary  in the Oct. 1994 Stanford Review  “… arguing that campus sexual assault and rape victims should have to satisfy the stringent “beyond reasonable doubt” standard. The report twisted this to mean Bounds “…supports making it more difficult to hold perpetrators of campus sexual assault accountable.”

Merkley jumped on this allegation. “Is the person fit (to serve on the Circuit Court) who says that there’s nothing wrong with a university failing to properly punish an alleged rapist?” he said on the Senate floor.

In fact, what Bounds argued against was a relaxation of the burden of proof required in prosecuting alleged violations of the University’s Fundamental Standard, especially in cases of sexual assault. In making his case, he expressed the views of many legal scholars who today argue that campus tribunals operating under university procedures do not adequately protect student rights, resulting in students losing their right to due process.

In other words, Bounds’ views 24 years ago were ahead of his time and hardly worthy of condemnation today.

Even worse, in a particularly egregious overreach, Wyden suggested a connection between Bounds and the Nazis.

Bounds  “…essentially compared tolerance and diversity to Nazi practices” in his writings, Wyden said to Willamette Week.  “…my late great Uncle Max was one of the last to be gassed in Auschwitz, and the idea that comparing tolerance to the Nazis is just so offensive that this is somebody who was not fit to be on an important court. A judge ought to be held to a higher standard.”

Nazis! Auschwitz! This crossed the dividing line between civil discourse and hysterical vitriol.

Wyden was presumably castigating Bounds for writing, “I am mystified because these tactics (by racial factions at Stanford) seem always to contribute more to restricting consciousness, aggravating intolerance, and pigeonholing cultural identities than many a Nazi bookburning.”

Merkley piled on, asking in remarks on the Senate floor, “Is the individual fit when the individual says that promoting diversity contributes more to restricting consciousness and aggravating intolerance than a Nazi bookburning?”

But that’s not really what Bounds said. Bounds was saying that some of the divisive tactics adopted by campus groups were more harmful to the school’s sense of community than the censoring of beliefs and ideas represented by the hateful burning of works decreed by propaganda minister Joseph Goebbels to be “un-German”.

Bounds was most certainly not equating tolerance with Nazism. Accusations that he was were a political cheap shot that illustrate the depths to which politicians will sink in this hyper-partisan time.

Wyden and Merkley celebrated when Senate Majority Leader Mitch McConnell abruptly withdrew Bounds’ name on July 19, 2018 after a Republican Senator, Tim Scott (R-NC), indicated he wouldn’t vote for Bounds.

Though Wyden and Merkley tried to sound high-minded in their victory, their real elation was that they had set the stage for possibly delaying a vote on Brett Kavanaugh’s nomination to  a seat on the Supreme Court until after the midterms (when the Democrats hope to take control) or defeating the nomination based on some as yet undiscovered material.

Sen. Dianne Feinstein (D-CA), Chair of the Senate Judiciary Committee, has already said Bounds withdrawal makes it clear the Senate should have access to all the records associated with Kavanaugh’s lengthy career in Washington before voting on his nomination.

“If Republicans agreed that Bounds is not qualified because of what he wrote in college, how could they possibly argue that material from Brett Kavanaugh’s time in the White House and as a political operative aren’t relevant?” Feinstein said in a statement        released the same day as McConnell’s announcement.

Before Bounds’ withdrawal, Wyden told Willamette Week  that Senators are honorable people. “We don’t reward people who mislead,” he said.

Apparently they do.













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