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Ken Lee Confirmation Likely Despite Affirmative Action Writings

May 14, 2019, 3:45 PM

Kenneth Lee likely will be confirmed this week to a federal appeals court seat despite opposition from Democrats over his writings on affirmative action and voting rights.

A Jenner & Block partner and first generation South Korean immigrant, Lee cleared a procedural hurdle in the Senate on Tuesday as lawmakers voted 50 to 45 to limit debate on his nomination. That set the stage for a vote on confirmation.

Lee would be the 40th appeals court judge confirmed under President Donald Trump and the fifth of his appointments headed to the San Francisco-based U.S. Court of Appeals for the Ninth Circuit.

Trump has been unusually critical of the Ninth Circuit over rulings against his policies. The court has 29 authorized seats. It currently has 16 judges appointed by Democrats and nine by Republicans.

The Senate this week is considering a number of Trump judicial selections, mainly to district courts. Lee’s vote followed the confirmation of Michael Truncale to the U.S. District Court for the Eastern District of Texas.

Truncale campaigned for conservative positions in his unsuccessful Republican primary bid for a Texas congressional seat, in 2011 and 2012. He also volunteered for the Trump campaign in 2016.

No Blue Slip Support

Lee also would be one of the few judges confirmed so far without the support of both home-state senators. California Democrats Dianne Feinstein and Kamala Harris have publicly opposed his nomination.

Feinstein, the top Democrat on the Senate Judiciary Committee, criticized Lee for not disclosing what she described as controversial writings on affirmative action and voting rights.

He wrote extensively in opposition to college affirmative action programs and other issues, including harassment and gender topics. A number of columns were published while he was an undergraduate at Cornell University in the mid 1990s.

Lee told the Judiciary Committee in March that he regrets a number of writings from the period, saying he was naïve and lacked maturity.

Though Lee has opposed affirmative action, Jenner managing partner Terrence Truax said he’s been an active member of the firm’s diversity and inclusion committee and has mentored minority attorneys.

Lee served as associate counsel to President George W. Bush and was an associate at Wachtell Lipton Rosen & Katz.

Trump has appointed appeals court judges at a record-setting pace due in part to vacancies held open by Republicans during the Obama administration and their decision not to require “blue slip” approval, or clearance from home-state senators.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com