Senate Republicans staged a five-month filibuster in 2011-12 against
whom President Obama had nominated as a New York-based trial judge. They didn’t question his qualifications but objected to his past writings, including a piece titled “Bang, Bang, You’re Dead! The NRA Supplied the Lead!” During his confirmation hearing, Mr. Furman said: “I wrote those words as an 18-year-old with no legal experience or training and, frankly, spoke with more confidence than was warranted.” The Senate eventually confirmed him.
Now the tables are turned. Ryan Bounds—like Judge Furman a Yale Law graduate, former federal law clerk, and federal prosecutor—has been nominated to the Ninth U.S. Circuit Court of Appeals. But the senators from Mr. Bounds’s home state, Democrats
are blocking his nomination.
As in Judge Furman’s case, the senators do not question his qualifications—which would be awkward, since their own judicial selection committee recommended him. Instead, taking their cues from the Alliance for Justice and other liberal interest groups, the senators cite a handful of op-eds Mr. Bounds wrote almost 25 years ago as a Stanford undergraduate. Mr. Bounds poked fun at the excesses of political correctness, for which the senators tar him as biased against minorities, women and gays.
Anyone who reads the articles or knows Mr. Bounds—as I have for more than 20 years, dating back to law school—knows these charges lack merit. But there’s a bigger point: Collegiate scribblings from decades ago should have no bearing on one’s fitness for public office, and making an issue of them is bad for the country.
College is traditionally a time of experimentation and exploration. We adopt and discard ideas and try out different identities, sometimes in rapid succession. These identifies often bear little resemblance to our mature selves—
was once a “Goldwater girl,” while
was a Black Panther sympathizer—but exploring them is how we learn about ourselves and acquire wisdom—how we grow up.
I speak from experience. In 1994, as a 19-year-old junior, I wrote a Harvard Crimson column titled “Those ‘Happy Homos.’ ” I mocked gay-pride events, arguing they were gratuitous on a gay-friendly campus like Harvard, and posed a rhetorical question: “How many homosexual Harvard students are still in the closet? Two? Three?”
Well, at least one. My column was a clumsy, youthful attempt to come to terms with an aspect of my identity. Today I am happily married to a man.
Judging people today based on things they wrote or said as undergraduates would block many highly qualified people from public service. The loss would be especially great given their demonstrated willingness to grapple with ideas and challenge conventional wisdom, even at the risk of being wrong or causing offense. Penalizing intellectual exploration will make college a stifling experience. Students will avoid saying or doing anything remotely unconventional, and we’ll end up with a leadership class of bland “organization kids,” in
How can we prevent college musings from becoming millstones around nominees’ necks? For starters, the Senate Judiciary Committee questionnaire should make clear that nominees need not list publications before law school, the start of one’s legal career. If earlier writings come to light anyway, senators should ignore them unless current information suggests the nominee still holds the views in question.
The risk of being unfairly defined in the present based on information from your distant past affects anyone with a “digital footprint”—and the problem will only grow as more personal information makes its way online, from younger and younger ages.
There’s probably no legislative or regulatory fix. The best solution is an informal societal understanding that all of us must be responsible and judicious in using old information. Let him who did not embarrass himself in college cast the first stone.
Mr. Lat is founder of the website Above the Law and author of the novel “Supreme Ambitions.”