Kenneth Lee

United States Court of Appeals for the Ninth Circuit

AFJ Opposes
Court Circuit Court

On
November 13, 2018, President Trump nominated
Kenneth Lee to the Ninth Circuit Court of Appeals for the seat previously held
by Judge
Stephen Reinhardt. The Senate did not act on Lee’s
nomination before the end of the Congress, and on January 3, 2019, Lee’s
nomination was returned
to the President. On February 6, 2019, President Trump renominated
Lee.

Lee’s nomination takes place against the backdrop of President Trump’s intense dissatisfaction with the Ninth Circuit. The President has repeatedly attacked the independence of the judiciary overall. But his ire towards the Ninth Circuit and specific judges in the circuit has been particularly vocal and vicious. The President has said the court is a “big thorn” in his side, and has called the court a “dangerous disgrace,” a “complete & total disaster,” and “out of control.” He has threatened to “put in a major complaint” about the court.

In light of this background, there can be no pretext that Kenneth Lee is being nominated because of his legal ability or to neutrally apply the law. Rather, he is being nominated to achieve specific ideological results, and to carry out the partisan agenda articulated by President Trump and vocal supporters such as Hugh Hewitt. Lee’s record provides strong evidence that he would do exactly that.

AFJ strongly opposes Lee’s confirmation.

Biography

Lee
earned
his B.A. from Cornell University in 1997 and J.D. from Harvard Law School in
2000. He was a law clerk to Judge Emilio M. Garza on the Fifth Circuit from
2000-2001 and then worked as an associate at Wachtell, Lipton, Rosen &
Katz. He spent three years as Associate Counsel and Special Assistant to
President George W. Bush, and since 2009 has been a lawyer at Jenner &
Block LLP in Los Angeles.

In
addition to his corporate practice, he has taken a broad range of pro bono
cases, including asylum cases, prison litigation, and excessive force cases. He
also advocated,
pro bono, in Vergara v. State of California, 246 Cal. App. 4th
619 (2016)to eradicate
educators’ job protections, a position rejected by California’s Court of
Appeals, 246 Cal. App. 4th 619 (Cal. App. 2d Dist., 2016) and not
reviewed by the state Supreme Court. 2016 Cal. LEXIS 8387 (Cal. Aug.
22, 2016).

Ideological and Partisan Bias

In
an op-ed for The American Enterprise, written while he was a law clerk, Lee attacked
“left-wing lawyers” claiming “the Left has for years been relying on courts to
accomplish what it could not achieve in the voting booth.” He continued:

From freeing the mentally ill in New York City to defending racial preferences in California to contesting the presidential election in Florida, left-leaning lawyers have successfully waged a “rights revolution” over the last three decades. Trial lawyers increasingly litigate new entitlements for favored groups, establish exotic new individual rights, and overturn well-established legal and legislative prerogatives.

While
raising the question of what court decisions he considers “new entitlements for
favored groups” or “exotic” rights, importantly, Lee did not – nor has he ever
– made a similar criticism of litigation initiated by conservatives.
Conservatives have repeatedly sought to invalidate policies enacted by the
democratically elected branches of government, such as efforts to provide
health care and protect individuals with preexisting conditions, the Voting
Rights Act, the Violence Against Women Act, efforts to address gun violence,
environmental laws, money in politics, or immigration reforms. Lee does not
criticize any of these efforts, exclusively reserving his criticism for efforts
by “left-wing lawyers.”

His
silence on the subject of politically-motivated litigation by conservative
forces exposes the agenda at the heart of Lee’s complaint
about “relying on courts to accomplish what it [the Left] could not achieve in
the voting booth.” It appears that his objection is not based on any neutral
principle, but on a results-oriented approach that he can justify if he
supports the litigation (and goals) in question.

Lee’s bias is further evidenced by his
extreme partisanship in other contexts. Lee, who once wrote
that “Watergate had a tinge of political witch hunt,” has repeatedly been
vicious in his attacks on Democrats. For example, in writing about a
congressional investigation into the 1996 House election of Loretta Sanchez, he
suggested
that “Democrats, cynically but shrewdly play[] the race card.” He said
Democrats “patronizingly offer[] race-based programs.” He also wrote
that “liberal Democrats” “lure Asian-Americans into the ‘victimization
culture,’ in which only benevolent white liberals in the government can come to
the rescue of inexorably oppressed minorities.”

His
critiques of the “Left” have not been limited to the government. He has characterized
much of the “Left” as “intellectually fraudulent and morally bankrupt.” He once
sarcastically asked, “[A]fter all, why would any sane
person want to be a leftist?” He said that professors “proselytize their
left-wing gospel” and criticized
what he perceived as “epidemic lying in the ivory tower” and liberalism at
universities. He wrote that “[f]rom Afrocentric claims of Cleopatra’s being
black to phony feminist statistics on rape, anorexia, and discriminatory
treatment of girls, academia has in recent years been beset by revelations of
fraudulent facts and spurious studies.”

Moreover,
Lee’s writings raise serious concerns about his ability to act as a neutral
arbiter with the ability to fairly weigh evidence and apply the law. In several
writings, Lee dismissed reports demonstrating inequality when the data did not
comport with his established ideological biases.

For
example, Lee criticized
an author who cited an Equal Employment Opportunity
Commission report that Asians with professional degrees earn less than
similarly educated whites. Lee retorted that “[s]tatistics can often be
misleading when not handled properly.”

In
another article,
discussing “supposed bigotry towards” women, Lee writes of the gender pay gap,
“As for income inequality, statistical
subterfuge once again emerges” [emphasis added]. In that same piece, Lee
wrote:

A close scrutiny of [minorities’] claims exposes their spurious “facts” and assumptions. Cries of racism often stem from isolated incidents or from unreliable studies based on statistical chicanery. Homosexual groups hurl epithets whenever one refuses to swallow their [argument] hook, line and sinker. And charges of sexism often amount to nothing but irrelevant pouting [emphasis added].

These
views are troubling considering that Lee is nominated for a position in which
he would regularly weigh factual evidence, including statistical evidence, to
determine legal outcomes of controversial issues.

Voting Rights

In
a 2006 article, Lee criticized, as “the latest cause célèbre” of the left, the restoration of voting rights to
individuals once they have returned to their communities after being released
from incarceration. He called the argument for restoration of voting rights
“unconvincing and problematic.”

It
bears noting that in the United States in 2016, an estimated
6.1 million adult citizens were disenfranchised as a result of a criminal
conviction. Most recently, in 2018, the citizens of Florida, by 65 to 35
percent, voted
to amend their state constitution to automatically restore the right to vote
for most individuals with prior felony convictions.

Lee
also suggested
that if a state were going to restore “an ex-convict’s voting right” it “should
be done on a case-by-case basis through an administrative mechanism because it
would be difficult to draft a statute that draws a bright-line rule taking into
account factors such as the seriousness of the crime, the potential for
recidivism and the number of prior offenses.”

Lee’s
case-by-case scheme is precisely what Florida formerly used. Under the previous
law, people with prior felonies never regained their right to vote in Florida
unless a state board used its discretion to individually restore their voting
rights. As the Brennan Center noted:

By December 2015, nearly five years after taking office, Gov. Scott’s administration had restored voting rights to fewer than 2,000 Floridians statewide, while over 20,000 applications remained pending. Meanwhile, in the period between 2010 and 2016, the disenfranchised population [of] Floridians grew by nearly 150,000 to a staggering estimated total of 1,686,000.

In 2018, Florida’s felon disenfranchise-ment
system, the type of system that Lee endorsed, was struck
down by a federal court as unconstitutionally discriminatory.
Lee’s support for such a system is deeply problematic.

Lee also condemned efforts to register
students to vote. He wrote:

To complement this left-wing rhetoric, Cornell spent thousands of dollars last year to send voter registration ballots to all its students. Some people may view this as an attempt to encourage civic responsibility. That would be too naive [sic]. Considering that young people tend to be liberal and that professors and administrators routinely bash Republicans, Cornell knows that most students will vote Democratic. Maybe Cornell’s Professional Ethics Committee should look into this matter – if it isn’t too busy conducting sexual harassment witch hunts.

Lee’s contempt for supporting and
facilitating the right to vote is concerning in a nominee to a lifetime seat on
the federal bench.

Racial Justice

Lee’s record suggests that he does not adequately understand or respect the impact or role that race has in the United States. For example, he once commented that, as someone on a panel “explained during [a] debate, economic factors have virtually eliminated rampant racism” [emphasis added].

Just
as Bounds
and Rao
criticized multiculturalism on college campuses, so did Lee. For example, he
criticized “ethnic theme houses” and “separate study lounges” in an article
titled “Separate & Unequal: Segregation on Campus.” He wrote:

“[R]acial separatism on campus is rife with ironies. . .The same universities that enact affirmative action programs to foster diversity and mutual understanding also encourage self-segregation along ethnic lines. Their motivations arise partly in response to intimidation, and partly from well-intentioned but misguided liberal paternalism” [emphasis added].
“Soft-hearted liberal paternalism explains some of these actions. Administrators truly want to make the school more hospitable to minority students, and many also see racial consciousness as the healthy expression of a multicultural community. But a more insidious rationale also exists. Minority students drop out at higher rates than whites, and critics have attributed this to affirmative action programs that admit unqualified students to challenging schools where they are likely to fail. . .So by paying special attention to minority students, universities hope to retain more of them and quell criticisms of affirmative action” [emphasis added].
“From the moment minority students are accepted at Cornell, the school isolates them and treats them like delicate commodities.”

As
a fervent opponent of affirmative action policies, Lee alleged
that “[t]he main problem with affirmative action is not that it hurts a white
or Asian student,” but instead that “[t]he real problem is that it hinders
progress for black Americans.” Regarding his own university, Lee complained
that “[i]t is a sad day when students at an elite Eastern university feel a
need to portray themselves as oppressed to participate
in a pernicious ethnic spoils system” [emphasis added].

He
also compared African
Americans’ fight for equality since slavery to the experiences of other
immigrants to the United States:

Does anybody believe that Irish and Jewish immigrants would have overcome discrimination had they cried “victim”, [sic] and labeled other people as insensitive oppressors and demanded preferential treatment? Of course not. Those actions would have exacerbated racial tensions and created a backlash against them, thus reinforcing negative stereotypes and fueling a vicious cycle. But this is exactly what is happening today. And empirical evidence – from the US to Malaysia to Nigeria – shows that preferential treatment inflames racial tensions.

In
another article, titled “End Racist Policies,” Lee wrote,
“Like the McCarthy era in the 1950s, the reigning politically correct orthodoxy
suppresses free thought and dissenting views in the academe. The main culprits
espousing this new intolerance tend to be affiliated with the
ethnic/multicultural classes.” He said that “[e]thnic studies classes have
stoked this fire of intolerance by perpetuating the victimization culture.” He
added that “by dwelling on the West’s racism (without having any world
perspective), students become ultra-sensitive. They border on paranoia as they
see racism in virtually everyone.”

In
fact, Lee wrote
that he “adamantly despise[s[ the victimization culture pervasive in America”
and how “[e]very single person in America considers themselves a ‘victim.’”
Moreover, Lee alleged that “[w]henever minorities do not succeed, they cry
racism. And when whites fail in their endeavors, they attribute it to ‘reverse
racism.’ We have become a nation of whiners, and I deplore that.” He then
wrote:

I’d personally like to see this ubiquitous oppressor that subjugates all races. He must be some sort of pseudo-black/white/Asian/Latino/native-American [sic]/Michael Jackson mutant on a wrathful rampage to wreak havoc in America.

Lee
further wrote,
“[w]e can see this victimization culture in effect as virtually every group on
the Cornell campus purports itself to be ‘oppressed’. The ethnic minorities
claim that their culture is quashed by a hegemonic Eurocentric society. Gays
and lesbians argue that we live in a heterosexist world.” He also added,
“Latino students have also employed the victimization culture as well.”
Further, Lee noted that “some of the Asian activists are afflicted with what
one may call the ‘Me too’ syndrome.
Since Asians have not reaped the same benefits as other minority groups, they
want a share in piece [sic] of the pie” [emphasis added].

In
an article about
Latino protesters at Cornell, who demanded “more Latino faculty, more vigorous
affirmative action programs, more funding for Latino organizations,” Lee described
the “administration’s naïve effort to curry favor with the multiculturalists on
campus.”

Lee’s
writings also demonstrate a profound trivialization of America’s racial history
and laws enacted to ensure equal rights for people who have historically faced
discrimination, including persons of color.

For
example, in an article
titled “Time to Fight Back: An Anti-Discrimination Campaign Waiting to Happen,”
Lee advocates for “stealing a few pages from the civil rights handbook” in
order to increase the proportion of Republican and conservative faculty at
universities. He wrote:

The simple legal logic underlying much of contemporary civil rights laws applies equally to conservative Republicans, who appear to face clear practices of discrimination in American academia that are statistically even starker than previous blackballings by race [emphasis added].

Lee
also equated
Cornell’s Program Houses – self-selected dorms based on hobby or cultural
identity – with pre-Brown v. Board of
Education segregation. Although campus affinity groups exist to support
diversity on campus, he called them “racial apartheid.” He added:

It is ironic that this battle over the “new self-segregation” has occurred on the 40th anniversary of Brown v. Board of Education. The landmark decision not only ruled that segregated public schools was [sic] unconstitutional but also challenged the racist ethos existing in America at the time. Ending this “new segregation” may be as painful and divisive as it was in Alabama 40 years ago [emphasis added].

Further, Lee, in an article
about sexual harassment allegations brought by four women against a professor,
lamented that even if the professor was innocent, the prevailing attitude was
“we’ll lynch him anyway.”

Lee, in other words, compared the systematic and
centuries-long national effort to deprive African Americans of equal rights and
equal opportunity, often with violence and unchecked terrorism, to concerns
that “conservative Republicans” do not have tenure-track positions at some
universities. He compared the debate over diversity programs on campus to the
organized effort, often with violence, to resist the Supreme Court order to
desegregate schools in Alabama (efforts which involved, among other things,
U.S. marshals and the national guard). He compared credible allegations of
sexual harassment to lynchings.

These
comments, at best, indicate an ignorance about American history. More
importantly, they raise serious questions regarding Lee’s ability to properly
apply some of our nation’s most critical laws.

As
noted, Lee is extremely critical of equal opportunity programs. In 1996, he
wrote in The New Republic, in an article
titled “Angry Yellow Men,” that
Asian Americans were “caught between [affirmative action] policies that limit
their admission to select colleges and opportunistic conservatives who see in
them a way to further a larger social agenda.” He also alleged that certain
California affirmative action policies were actually “special efforts to woo
the Angry Yellow Male vote. ”

In another article,
“Affirmative Action at the Bursar’s Window,” Lee wrote:

[Affirmative action] goodies are granted regardless of financial situation – Congresswomen’s children and dentists’ sons of the right skin color automatically qualify for full subsidy – making it clear that the university’s goal is not boosting the disadvantaged but rather building a publishable box score of enrollment by race that conforms to liberal decorum and the demands of the gene-counters [emphasis added].

He also wrote that “universities should recruit intellectually conservative
professors with the same zeal they display for balancing flesh tones” [emphasis added].

After law school, Lee advised Republicans to “appropriate the language and logic of liberals’
most sacred shibboleth: affirmative action,” in order to obtain better
representation of “beleaguered Republicans and Christian conservatives” at
universities.

Lee also encouraged the
Supreme Court to invalidate affirmative action programs. In
reference to Regents of the University of California
v. Bakke, 438 U.S. 265 (1978), he wrote
that “indecisive and conflicted, Justice Powell opted for a politically
palatable but practically unfeasible approach.” He explained
that “[l]iberals have increasingly relied on the ‘diversity’ rationale to
defend racial preferences. As a purely legal proposition, the diversity
rationale for racial preferences remains questionable.”

Women’s Equality

Lee
wrote a number of pieces that reflect an attitude that is hostile to women’s
rights and women’s equality. His writings on women’s issues range from
problematic views on sexual harassment, to skepticism regarding the reported
prevalence of rape on college campuses, to reproductive rights. He even broadly
claimed
that “charges of sexism often amount to nothing but irrelevant pouting.” Lee’s
expressed views raise serious concerns that he would not be a fair-minded
jurist when it comes to women’s rights.

Lee’s
record is rife with statements in which he mocks and minimizes women’s fight
for equality. For example, in one article
(in which Lee also misspelled “women” six times in an apparent effort to mock
the feminist term “womyn”), Lee wrote:

Some egalitarians have charged that womon [sic] should be treated equally in all cases; this would include putting womein [sic] into the front-line battlefield. Unfortunately, no matter how many times they cry that both genders are equal, the reality is that men and womoen [sic] are biologically different, e.g. men are usually innately physically stronger than womin [sic] (although exceptions to that rule exist, especially in the author’s case). Any one [sic] who disputes that fact disputes nature. Some tasks are better suited for men, and others for women. This is not sexism; it is reality [emphasis added].

In another article,
Lee identified what he considered “some of the schizophrenic contradictions in
feminist shibboleths,” such as:

Feminists have argued that women are just as strong and competent as men – they deserve to be on the front-lines of the military; they should be fire-fighters; they should attend the Citadel. But feminists suddenly complete a 180 degree turn and claim that women are meek and helpless victims of men: they need to be protected from things such as Playboy. So which is it?

Additionally,
Lee argued
that “reasoning with some feminists is futile” because “[f]eminism today,
unfortunately, is not about extending equal rights and opportunities to women.
Instead, it is about adhering to a stifling orthodoxy.”

Particularly
troubling is an article
Lee wrote defending a Cornell University professor accused of sexual
harassment. The main thrust of this piece is less a defense of the professor
himself, his character or record, than an all-out attempt to discredit the
women who came forward. In so doing, Lee traffics in every harmful stereotype
and misunderstanding about women and survivors. For example, he criticizes a
student who alleged that the professor once grabbed her breasts on a work trip,
questioning why she would then continue to work as his assistant on four more
trips. Lee deduced that “[i]f 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.” This false
narrative reinforces negative stereotypes that scrutinize the reactions of
survivors of sexual violence instead of the actions of the perpetrator, and
flies in the face of what is known about survivors’ frequent reluctance to come
forward and jeopardize their work and relationships.

Similarly,
Lee inappropriately characterized – and unfairly criticized – the alleged
mental state of this same student following the alleged incident. He wrote:

Co-workers testified that the complainant did not seem depressed during this time period, and they failed to note any change of behavior in the complainant. One would expect her to display some downtrodden emotions. After all, she claimed that she was so traumatized by this incident that she had run out of the room teary-eyed and locked herself in the bathroom for hours.

Lee
continued in the same article by speculating
about the true “motives” behind the four survivors’ allegations. “The two main
instigators of this witch hunt were twin sisters” who worked for the professor.
He characterized the survivors’ claims as a “witch hunt” in several additional
publications he authored. Their “witch hunt,” in Lee’s opinion, derived not
from reality, but because they were brainwashed by “radical” “feminist” ideas
the students took from their coursework at the university:

They had described their working relationship with [the professor] as “fun” until they took a human sexuality course in the Human Ecology College and became teaching assistants for the coures [sic]. The class propagated the pernicious view that all women are victims of the inexorable sexism inherent in our patriarchal society. Indeed, a central tenet of some radical strands of feminism is the quasi-Marxist notion that the [sic] all actions of the “oppressors” (males, in this case) are used to perpetuate their dominance over the “oppressed” (females).

Moreover, Lee noted that “[a]fter being exposed to these feminist ideas, the twins joined a date rape and a Violence Against Women organization. They then suddenly construed [the professor’s] kindly acts – the same actions that they had previously welcomed – as sexual harassment.”

In
another article,
Lee criticized efforts by “feminists” on his university’s campus fighting
against objectification of women and its relationship to sexual assault. Lee –
once again placing the responsibility to deter sexual assault on women instead
of perpetrators – argued, “If feminists truly want to deter sexual crimes, they
should support strict and harsh punishments against sexual offenders.” Notably,
Lee failed to provide any evidence that the “feminists” did not support such punishments
for offenders. Instead of listening to and supporting survivors, Lee focused on
telling survivors how to deter and respond to sexual assault.

Lee’s
harsh and misinformed rhetoric regarding sexual harassment highlights
problematic stances he has taken when considering women’s rights issues. His
dismissal of survivors’ experiences demonstrates a lack of understanding and
empathy as it relates to the reality of sexual violence that women face every
day, and he should be questioned closely about the views he has expressed.

Additionally,
Lee has expressed doubts about the prevalence of rape and sexual assault on
college campuses. He wrote in an article
titled “Untruth in Academe”:

If political power is the most important element in society, then being untruthful is not terribly wrong if it helps “your” side gain power. This postmodern playing with facts has thoroughly infected feminist arguments about the oppression of women. On most college campuses, professors repeat the mantra “one in four girls is a victim of rape or attempted rape.”

Lee
then asserted that “this claim is deeply flawed.” In fact, RAINN (Rape, Abuse & Incest National
Network) estimates that “[a]mong undergraduate students, 23.1% of females and 5.4% of
males experience rape or sexual assault through physical force, violence, or
incapacitation.” Lee was factually inaccurate in his critique of sexual
assault statistics on college campuses. More importantly, his comments highlight
how dismissive attitudes toward women’s experiences reinforce a culture that
overlooks the epidemic of sexual violence against women.

Lee
also expressed hostility towards “feminists” and reproductive rights. He claimed
that “[i]n fact, most feminists support unfettered abortion-on-demand.”
Further, he said these “feminists” “want the government to subsidize abortions
for 16 year olds without parental consent, and they have no moral qualms about
it.” Lee continued, asking, “Why? Because
they see abortion in terms of purely ‘rights’ and not morality” [emphasis
added].

Lee’s
disdain for women’s rights is not limited to domestic politics. Lee also
criticized “leftists” for using a human rights framework to advocate for
women’s rights and equality around the world. He argued:

Contrary to what one may think, leftists repeatedly condemn other cultures as “barbaric” and “savage”. [sic] Of course, they don’t use those words; they couch it in the diplomatic jargon of human rights [emphasis added].

Lee
argued that “a salient example” of this was the U.N. Conference on Women, where
Hillary Clinton stated
that “human rights are women’s rights, and women’s rights are human rights.”
Instead of supporting women’s rights abroad, Lee argued
that:

Liberals like Hillary Clinton, in an arrogant display of closed-mindedness and intolerance, lambasted countries for not conforming to American cultural standards. China, for instance, was excoriated for its mistreatment of women. Most Muslim countries were equally denounced for treating women as virtual property of men. But how can American liberals criticize these countries?. . .[I]t may offend us, but it is natural for them.

LGBTQ Equality

Lee’s
record includes extremely troubling views on LGBTQ equality, ranging from harmful
stereotypes about the LGBTQ community and the AIDS epidemic, to characterizing
LGBTQ campus advocacy as the work of “militant gays.”

He
dismissed
the need for LGBTQ advocacy, explaining his view that “[w]hile most people can
agree that gays should be accorded respect and equal rights, the creation of
another ‘ism’ (like racism) is yet another way to portray people as victims in
need of preferential treatment.” He wrote
“[h]omosexual groups hurl epithets whenever one refuses to swallow their [argument]
hook, line and sinker.”

Most
disturbingly, Lee propagated harmful and offensive views about the LGTBQ
community and the AIDS epidemic. In one article, Lee wrote:

The media and Hollywood spokespersons have worked assiduously to dispel the notion that AIDS is a ‘gay-disease.’ They reiterate the mantra that AIDS is everybody’s disease. But the fact remains that 9 out of 10 people with AIDS in America are either gay or drug users [emphasis added].

Lee
– who has no demonstrated medical or scientific expertise on the issue of AIDS
– callously proclaimed
that the explanation for his claim connecting LGBTQ individuals to AIDS is that:

Homosexuals are generally more promiscuous than heterosexuals, and thus their risk factor increases exponentially. Another reason stems from the nature of homosexual sex. To be rather blunt, homosexual sex often involves blood. And blood is the most conducive bodily fluid for the AIDS virus (more so than semen). Promiscuous heterosexuals are also susceptible to AIDS, but at a lower risk factor than homosexuals and drug users because blood is not often involved in heterosexual sex [emphasis added].

Confident
in his amateur explanation of how AIDS is transmitted, Lee also cast doubt on
the ability or need to find a cure for AIDS. Lee suggested that it was more useful
to address the “values” involved than to conduct research. He argued:

Research should continue, but we must not put inordinate hopes on a scientific breakthrough. Instead we must focus on values and responsibility. To avoid AIDS, one has to only abstain from drug-use and promiscuity. So simple, yet so hard to grasp [emphasis added].

He
then compared
efforts to address AIDS with efforts to address the plague in Europe:

When the black plague destroyed much of Europe, this pernicious disease was eradicated not by some miracle antidote, but through some fundamental changes (sanitation methods, in this case). In the battle against AIDS, we should not hopelessly place our faith on a vaccine, but instead focus on personal responsibility [emphasis added].

Lee
also supported
the military’s ban preventing gay individuals from serving their country. He
argued against the so-called “[m]yth” that “[t]he military’s ‘hostile’ policy
toward homosexuals shows America’s homophobia.” Instead, Lee argued that “the
truth” was that “to hurl epithets such as ‘homophobe’ and ‘bigot’ for opposing
gays in the military is unscrupulous.” He defended the proposition that:

Many tolerant, rational-thinking people oppose the lifting of the ban not because they detest homosexuals, but because they believe that such an integration would diminish the camaraderie of the military’s macho ethos” [emphasis added].

Lee
also criticized
the opening of a Gay, Lesbian and Bisexual Resource Office at Cornell. He said
the school’s argument that the center was necessary was “specious at best” and
that the “money could have been better used.” In fact, he said “[a]lthough the
administrators vehemently deny it, the Gay Resource Office is more political in
nature than anything . . . a token to appease the more militant gay activists on campus” [emphasis added].

In
his criticism of a Latino Living Center, Lee also chastised
LGBTQ students:

There is a reason for the homosexual groups’ eager support of the Latino Living Center that is not immediately obvious from the popular frontism of their rhetoric. (In an open letter, the Gay/Lesbian/Bisexual Coalition declared, “We share many of [the Latinos’] goals and realize that this is a common struggle.”) Although the Student Assembly passed the gay dorm proposal last year, [Cornell’s President] vetoed the resolution. The homosexual groups see the Latino Living Center as a stepping stone to a dorm of their own.

He
added,
“[Cornell President] Rhodes and the rest of the administration blew the lid off
altogether by not pursuing disciplinary action against protesters. Those who
watched the evolution of this campus donnybrook believe that it will someday be
regarded as a dry run for militant gay activists who now have no reason not to
make their move” [emphasis in
original].

Native American Rights

Lee’s
disparagement of “victimization culture” extended to offensive commentary on
Native Americans. In an article
titled “The Native Americans vs. the Indigenous People,” Lee mocked the
“politically correct clique” for criticizing professional sports teams that use
offensive Native American caricatures and stereotypes in their mascots and
cheers.

This rhetoric is especially concerning
considering Lee’s nomination to the Ninth Circuit. If confirmed to the Ninth Circuit, which
covers nine states and two Pacific Island jurisdictions, Lee
would adjudicate cases in a circuit with 427 federally recognized tribes. The National Congress of American
Indians notes that “the Ninth Circuit hears more tribal cases than any
other” court of appeals, often taking a leading role in Indian law matters.

Access to Justice

During his time in private practice,
Lee represented corporate interests and criticized those who sought to
vindicate their rights using class-action lawsuits. In his writings, he supported
making it more difficult to hold corporations accountable when they act
illegally and harm the American people.

In a 2013 article
titled “Questionable Classes: Recent decisions in false advertising class
actions have shown less favor to plaintiffs,” Lee wrote specifically about
false advertising claims. His comments, though, reflect a general disdain for
the ability of aggrieved consumers with common claims to join together in challenging
corporations or institutions in positions of power. As the Supreme Court
recognized, class actions “overcome the problem that small recoveries do not
provide the incentive for any individual to bring a solo action prosecuting his
or her rights.” Amchem Prods. v. Windsor,
521 U.S. 591, 617 (1997) (internal quotation marks omitted).

In contrast, Lee wrote
that “a large number” of suits are “essentially lawyer-manufactured lawsuits in
which there has been no real harm to the consumers.” He was extremely
supportive of heightened pleading standards created by the Supreme Court in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) and Ashcroft v. Iqbal,
556 U.S. 662 (2009), calling their policy rationale “doubly persuasive in the
class action context.” He applauded judges who have “relied on common sense to dismiss
class action lawsuits.”

In
another piece, he criticized
the “surge of wage-and-hour class action lawsuits” in California, including one
case where Walmart had “to pay $172 million in damages for failing to provide
30-minute meal breaks to its employees in accordance with California labor law.”
As he wrote, “[t]hese lawsuits can dent the bottom line of Fortune 500
companies and potentially cripple small businesses.” Absent from his article, “California,
Home of Wage and Hour Lawsuits,” is any concern for the 116,000
workers whose rights were violated or any criticism at all for a
company that was flagrantly violating the law. In contrast to Lee, as one juror
in the Walmart case pointed out, “state law is the only protection that a lot
of workers have for basic rights, like meal breaks and getting their breaks on
time.”

Additionally,
Lee criticized
civil discovery, emphasizing that “named plaintiff can demand defendant
companies to spend hundreds of thousands of dollars to scour for internal
documents.” At a time when conservative judges are trying to curtail discovery, his remarks are concerning.

While Lee did not articulate specifics
in his criticism of discovery, any effort to limit it could have disastrous
consequences for those trying to hold corporations accountable. Discovery is
the stage of a court case where information to prove or disprove a claim can be
obtained. Discovery is typically the only way for those whose rights have been
violated to obtain the necessary facts to prove their claims. Limiting plaintiffs’
access to important information – which is often only in the control of
defendant corporations – would have the effect of further harming workers and
consumers.

Conclusion

President
Trump’s own words and actions make it abundantly clear that he is eager to
bring about a dramatic change in the makeup of the Ninth Circuit. His selection
of Kenneth Lee for a seat on the court indicates that the President and his
advisors have high confidence that Lee would be a reliably right-wing vote on
the court – and Lee’s record confirms that.

The
views Lee has expressed over the years about women’s rights, racial equity and
LGBTQ rights are not just conservative: they are extreme. He has demonstrated
his affinity for corporate interests over the rights of consumers and workers.
His views on voting rights ignore racial and other inequities perpetuated by
the disenfranchisement of those formerly imprisoned for felonies. Finally,
Lee’s nomination is being forced to proceed over the strong objections of his
two home-state senators, who note that he failed to disclose controversial
writings to in-state screening committees.

Based
on these factors, we believe Kenneth Lee would bring a partisan agenda to the
court at the expense of many who would come before him, and that his nomination
represents yet another agenda-driven and cynical end-run around the normal
nomination process. AFJ strongly opposes his confirmation.