WASHINGTON ― The Senate on Wednesday confirmed Kenneth Lee to a lifetime federal judgeship over the objections of both of his home-state senators and despite his past controversial writings on sexism, AIDS, LGBTQ rights, slavery and Native Americans.
Lee, 43, won confirmation on a 52-45 vote to the Court of Appeals for the 9th Circuit, headquartered in San Francisco. Every Republican present voted for him. Every member of the Democratic caucus who was present opposed him.
Lee, an attorney in a Los Angeles law firm and former associate White House counsel to President George W. Bush, faced criticism for a series of offensive articles he wrote in the mid-1990s as a student and newspaper editor at Cornell University.
At the time, Lee argued that claims of sexism are “irrelevant pouting”; that LGBTQ rights advocacy is “yet another way to portray people as victims in need of preferential treatment”; that gay people are more promiscuous than straight people, which is why “9 out of 10 people with AIDS are gay or drug users”; that multiculturalism is a “malodorous sickness”; and that African Americans’ fight for equality in the aftermath of slavery is similar to other immigrants trying to overcome discrimination.
In “The Native Americans vs. the Indigenous People,” Lee mocked the “politically correct clique” of people offended by professional sports teams that use Native American caricatures and stereotypes as mascots and in cheers. In his role on the appeals court, Lee will adjudicate cases in a circuit with 427 federally recognized tribes.
Mr. Lee has a long record of controversial writings and statements on race and diversity, immigration, affirmative action, women’s rights, and other issues. Sen. Dianne Feinstein (D-Calif.)
During his confirmation hearing in March, Lee said he regretted writing the inflammatory articles. But he initially hid some of them from senators and from California officials charged with reviewing his background, which did not help his case and was part of the reason neither of his home-state senators, California Democrats Dianne Feinstein and Kamala Harris, supported his confirmation. His missing articles were later discovered by Senate staff and by the press.
“First, Mr. Lee has a long record of controversial writings and statements on race and diversity, immigration, affirmative action, women’s rights, and other issues. Second, Mr. Lee failed to disclose dozens of problematic writings to our in-state judicial commissions and to the Judiciary Committee itself,” Feinstein said in a Wednesday statement. “That failure raises significant doubts about Mr. Lee’s candor and judgment and it should be concerning to all members of this body.”
During Wednesday’s debate, Senate Minority Leader Chuck Schumer (D-N.Y.) singled out his writings on sexism as particularly problematic.
“That’s a man who should be on the bench?” Schumer asked. “Mr. Lee, if confirmed today, may preside over cases dealing with gender discrimination.”
But Senate Majority Leader Mitch McConnell (R-Ky.) praised Lee for a record “marked by success,” and noted that he went to law school with Sen. Tom Cotton (R-Ark.), who “personally testified that Mr. Lee is, quote, not only a brilliant lawyer but more important, a man of high character.”
Lee’s confirmation marks the fourth time the Senate has ever confirmed a judge over the objections of both of his or her home-state senators. Feinstein and Harris did not turn in “blue slips” for Lee, which are literally blue pieces of paper that signal a senator is ready to advance a judicial nominee from their home state. Traditionally, the Senate won’t move forward unless both blue slips are turned in. Some nominees have advanced with one turned in.
Like the vast majority of Trump’s court picks, Lee is a member of the conservative Federalist Society, which has been funneling judicial nominees to the White House who oppose abortion rights, LGBTQ rights and voting rights.
He is also Trump’s 40th confirmed appeals court judge. That’s so many ― more than any president has obtained by this point in a first term ― that one in every six seats on a U.S. appeals court is now filled by a Trump nominee.