Last week Washington raised its eyebrows at a surprising spectacle: Donald Trump had found a conservative judicial nominee whose views were troubling enough for Senate Republicans to temporarily put away their rubber stamps.
Ryan Bounds, a nominee for a seat on the 9th Circuit appeals court, could not get the 51 Republican votes needed to clear the Senate, with Sens. Tim Scott of South Carolina and Marco Rubio of Florida signaling they would vote no. With no Democratic votes, that was enough for Senate Majority Leader Mitch McConnell to withdraw Bounds’ nomination on the same day a vote was scheduled to take place.
What sunk Bounds was a series of columns he had written in a conservative student publication, the Stanford Review, as an undergraduate at Stanford in the mid-1990s. Bounds, who is white, was sharply critical of what he saw as “multiculturalism” as manifested through things like race-based affirmative action and ethnic student organizations. He wrote scathingly against what he saw as students who “divide up by race for their feel-good ethnic hoedowns” and “contribute more to restricting consciousness, aggravating intolerance, and pigeonholing cultural identities than many a Nazi bookburning.”
He also served as the Review’s opinion editor at a time when the publication revived and repeatedly used an old Native American caricature mascot for a feature called “Smoke Signals.”
Bounds publicly apologized for his writing earlier this year, saying that it was “overheated, over-broad and too often not as respectful as it should have been of opposing viewpoints.” Supporters of Bounds also pointed out that he had written the articles over 20 years ago, as a college student. But this was reportedly insufficient for Scott, the sole black Republican in the Senate, and Rubio, who is Latino. Bounds now sticks out as a rare judicial failure for an administration that has rapidly been filling vacant federal appointments with conservative judges.
What makes this incident bizarre is that Bounds is far from being an outlier. He, like the great majority of conservative judges, was schooled at a liberal-leaning institution of higher education, where student conservative organizations pushed boundaries and pulled stunts to get noticed. Bounds’ rhetoric was inflammatory, but it was quite typical for the sort of campus institutions that are rites of passage for conservatives on their way up to the Federalist Society and the conservative legal movement. And the sort of conservative jurists whom Senate Republicans prize will have spent quite a lot of time in spaces where Bounds-style argument was commonplace.
Put simply, if Bounds is beyond the pale based on the things he wrote in the Stanford Review, looking at the history of the Review and conservative rhetoric more broadly, the Senate will also need to reject a nontrivial swath of the up-and-coming conservative judicial elite.
The Stanford Review is a prototypical example of such a campus conservative-leaning institution, and its history is illustrative. The Review, founded in 1987 by Norman Book and Silicon Valley billionaire Trump donor Peter Thiel, has been a cornerstone of Stanford’s political right for three decades. The Review has long presented itself as a free-thinking, contrarian bastion, unafraid to take on Stanford’s dominant political liberalism.
I have researched its extensive rabble-rousing history, which includes a successful lawsuit against Stanford’s “speech code” in the 1990s and a consistent pattern of sending its alumni to work for Thiel’s companies and venture capital firms. Besides Thiel, notable Review alumni include people like PayPal entrepreneur-investors Keith Rabois and David Sacks, and Palantir cofounders Joe Lonsdale and Stephen Cohen (Thiel is also a cofounder of PayPal, a payments company, and Palantir, a data analytics firm).
The Review has a proud tradition of (often mockingly) holding forth against a recurring cast of enemies, including multiculturalism, political correctness, and, as Thiel put it, “institutionalized liberalism.” Its articles over the years vary greatly in tone and level of willingness to provoke, but the Review is also consistently willing to go further than Bounds ever did.
For example, David Sacks contributed several articles to an issue of the Review in 1992 devoted to sexual assault featuring, among other things, an article (written by another student) suggesting ways to “avoid sexual assault charges” and “thwart the feminazis” and a cover image attaching a swastika to the female Venus symbol. As noted in Emily Chang’s Brotopia, Sacks himself wrote, “If you’re male and heterosexual at Stanford, you have sex and then you get screwed.” He became the editor-in-chief the following volume.
(Sacks recently apologized for comments in The Diversity Myth, a 1996 book he cowrote with Thiel, in which he called date rape “belated regret.” Thiel also apologized for the comments, but my previous reporting indicates that that may not have been sincere.)
Joe Lonsdale’s last issue as editor-in-chief, in 2003, included a section called “Telling Liberals Apart: Rational But Misguided Versus Completely Insane,” in which the “rational liberal” says that “affirmative action is an imperfect solution that helps redress past de jure inequalities” and the “insane liberal” says:
“Yo the crazy evil white man / He be keepin' us down like the fryin' pan / We be workin' hard day an' night / He be rapin' our race and givin' da children fright… Man, affirmative action DO NOT go far enough to raise us out of this oppressive trough of racism and hate. It's a fake cop-out, where extreme reparations are needed.”
There are countless other instances of the Review aggressively pushing back against the campus left, denouncing all sorts of progressive positions on economics, sexuality, race, and more, often with a mischievous or caustic tone (in one notable flare-up, editor-in-chief Stephen Cohen revived the Smoke Signals section with the Native American caricature in 2004). The issues and line remain fairly consistent because student politics, especially at the elite institutions attended by the rising legal class, has remained fairly consistent: Progressives dominate campus rhetoric, and campus conservatives strike back, building their own institutions to host a rebellion.
The fiery Dartmouth Review, which counts Dinesh D’Souza and Laura Ingraham as alumni, has very much filled that role. In 2005, D’Souza wrote a reflection on his time as an undergrad in the 1980s (which included publicly outing members of Dartmouth’s Gay Student Association), describing “the larger dilemma facing conservative students in a liberal culture”:
Typically, the conservative attempts to conserve, to hold on to the values of the existing society. But what if the existing society is liberal? What if the existing society is inherently hostile to conservative beliefs? It is foolish for a conservative to attempt to conserve that culture. Rather, he must seek to undermine it, to thwart it, to destroy it at the root level. This means that the conservative must stop being conservative. More precisely, he must be philosophically conservative but temperamentally radical. This is what we quickly understood at the Review.
D’Souza is expressing a dynamic that scholars have also explained: an environment for college conservatives that enables and encourages crass behavior to trigger the libs. The recent phenomenon of far-right provocateur Milo Yiannopoulos represents this trend reaching a new peak. The other recent campus conservative phenomenon, Ben Shapiro, who in comparison to Yiannopoulos has been described as a thoughtful “gladiator,” has said that “Arabs” “value murder” and “like to bomb crap and live in open sewage.”
Regardless of how acceptable you believe Bounds’ comments were, and whether you think it is legitimate for decades-old college writings to be used against him, the failure of his nomination raises a different question. Why was it that his words in the Stanford Review — in the context of a conservative movement that has tolerated and amplified such rhetoric for decades — were where Senate Republicans drew their line in the sand?
Bounds reportedly faltered because he was unable to convince Sens. Scott and Rubio — who, it should be noted, endorsed Donald Trump for the presidency and consistently vote for his other nominees — that he was mature enough to be a federal judge. If Scott and Rubio hold all conservative judges to the standard that they held Bounds, then there will be more failed nominations on the horizon.
Andrew Granato is an economic researcher and freelance journalist based in Chicago.