Kenneth Lee – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Jenner & Block Partner Kenneth Lee is President Trump’s first nonwhite nominee to the Ninth Circuit.  He has drawn strong opposition based largely on college writings that lay out controversial views.

Background

Kenneth Kiyul Lee was born in Seoul on August 30, 1975.  Lee received a B.A. from Cornell University in 1997 and a J.D. from the Havard Law School in 2000.[1]  After graduating from law school, Lee clerked for Judge Emilio Garza on the U.S. Court of Appeals for the Fifth Circuit.[2]

After his clerkship, Lee joined Wachtell Lipton Rosen & Katz as an associate in their New York City Office.[3]  Five years later, he moved to the White House Counsel’s Office in the Bush Administration.[4]  In 2009, Lee moved to Jenner & Block’s Los Angeles Office as a Partner and has served there since.

History of the Seat

Lee has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat is scheduled to open on March 29, 2018 when Judge Stephen Reinhardt, a liberal lion, passed away.

However, Lee had been under consideration for a judicial appointment over a year earlier, when he interviewed with the White House Counsel’s Office and the Department of Justice.[5]  In November 2017, Lee interviewed with a Judicial Advisory Commission set up by Sen. Dianne Feinstein (D-CA) and in March 2018, with a Commission set up by Sen. Kamala Harris (D-CA).  Lee was formally nominated on November 13, 2018, without the support of either senator.

Political Activity & Memberships

Lee is a Republican who has occasionally donated to Republican candidates, including a $2000 donation to Sen. Tom Cotton in 2014.[6]  Lee has also donated to U.S. Sen. Ted Cruz and Rep. Elise Stefanik.[7]

Furthermore, Lee has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 1997.[8]

Legal Experience

After his clerkship, Lee has spent his career focusing on both trial and appellate level litigation.  He has served as Chief Trial Counsel in four cases, as well as serving as Second Chair in one additional case.

Wachtell

From 2001 to 2006, Lee served as as Associate at Wachtell Lipton Rosen & Katz where he primarily handled commercial litigation.  Lee notably second-chaired a trial securing $4.6 billion in insurance damages for his client, the leaseholder of the World Trade Center, after the September 11 attacks.[9]

White House Counsel

From 2006 to 2009, Lee served as Associate Counsel to President Bush.  In that role, Lee defended the White House against investigations for the incoming Democratic Congress while working on litigation strategy in cases implicating the White House.

Jenner & Block

Since 2009, Lee has been a Partner with Jenner & Block handling matters of complex civil litigation.  During this time, Lee notably represented Kraft Foods in defending against a putative class action suit alleging false advertising relating to the fruit content in Newtons.[10]  Lee also defended Clorox in false advertising suits relating to Fresh Step cat litter ads.[11]

Writings

Like previous appellate nominees Ryan Bounds and Neomi Rao, Lee has his share of controversial writings, primarily based in his college years.  For example, in a 1993 article titled “Is America Evil,” Lee argued against criticism of racism, sexism, and homophobia in the United States.[12]  In the article, Lee suggests that criticism of structural racism arises from “statistical chicanery” and that charges of sexism are “irrelevant pouting.”[13]  Lee also writes against criticisms of sexism, noting:

“Unfortunately, no matter how many times they cry that both genders are equal, the reality is that men and women are biologically different…Anyone who disputes that fact disputes nature.  Some tasks are better suited for men, and others for women.  This is not sexism; it is reality.”[14]

Lee goes on to suggest that sexism is worse in other cultures than in America, noting that the Koran “states that ‘men have authority over women because Allah has made the one superior to the other.’”[15]

In another article, Lee wrote that “nine out of 10 people with AIDS are gay or drug users.”[16]

To be fair, Lee has walked back from many of his college writings, stating before the Judiciary Committee that he was “embarrassed” of them.[17]  His disavowal was sufficient to secure the support of Sen. Tim Scott, whose opposition killed other Trump nominees.[18]

Overall Assessment

As the Senate prepares for a final vote on Lee’s nomination, his confirmation looks likely. (While, in theory, the opposition of four GOP senators is enough to kill a nomination, the actual hurdle is higher, since many Democratic senators have been missing votes while campaigning for the Presidential nomination.)

Looking at Lee’s record overall, it reads (setting aside the college writings) as that as a mainstream (albeit conservative) nominee.  That being said, the college writings can reasonably be described as sexist, homophobic, and Islamophobic, and may be enough, in and of themselves, to persuade senators not to support Lee.  As such, senators must determine how heavily they must weigh such writings in their review of his overall record.


[1] Sen. Comm. on the Judiciary, 115th Cong., Kenneth D. Lee: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Lee, supra n. 1 at 27.

[6] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=kenneth+lee&cycle=&state=CA&zip=&employ=&cand= (last visited May 11, 2019).  

[7] Id.

[8] See Lee, supra n. 1 at 5.

[9] SR Int’l Bus. Ins. Co., et al. v. World Trade Cntr. Props. LLC, et al., No. 01-CV-9291 (S.D.N.Y.), 345 F.3d 154 (2d Cir. 2003).

[10] Evangeline Red v. Kraft Foods, 754 F. Supp. 2d 1137 (2010); Manchouk v. Mondelez, 603 Fed. App’x 632 (9th Cir. May 18, 2015).

[11] In re Clorox Consumer Litig., 894 F. Supp. 2d 1224 (2012).

[12] Kenneth Lee, Is America Evil, The Cornell Review, Nov. 11, 1993, https://afj.org/wp-content/uploads/2019/02/Is-America-Evil.pdf.  

[13] See id.

[14] Id.

[15] Id. 

[16] Emma Dumain and Emily Cadei, Trump Pick on Track to Join Californias 9th Circuit Despite Feinstein, Harris Opposition, Sacramento Bee, Mar. 13, 2019, https://www.sacbee.com/latest-news/article227517189.html..  

[17] Id.

[18] Id.

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