Republican senators are recommending that the White House counsel’s office no longer make judicial nominees available to the American Bar Association for evaluation after the group viciously smeared a Trump nominee in a clearly political letter to the Senate Judiciary Committee.
During a Senate Judiciary Committee hearing Wednesday, Judge Lawrence VanDyke broke down in tears trying to defend himself against the scurrilous allegations in the letter.
The ABA Standing Committee on the Federal Judiciary gave VanDyke, President Trump’s nominee to the Ninth Circuit, a rating of “Not Qualified,” despite his vast experience as an American lawyer and former Solicitor General of both Nevada and Montana.
VanDyke graduated magna cum laude from Harvard Law School and served as an editor of the Harvard Law Review. He clerked for Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit before launching his appellate career. VanDyke has the distinction of having served as both the solicitor general of Montana and Nevada, where he oversaw every important case affecting those states. He has argued over 20 appeals in the federal circuit courts (most in the Ninth Circuit) and has been the counsel of record on 28 briefs before the U.S. Supreme Court. Lawrence VanDyke is one of the standout appellate litigators of his generation.
Even with that impressive legal background, the ABA letter claimed—without evidence—that VanDyke was a lazy and arrogant ideologue who was unfamiliar with “day-to-day practice including procedural rules.”
“Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” it said. “There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.”
As bad as that was, the part that really upset the judge was the allegation he would not be fair and impartial to members of the LGBTQ community.
Sen. Josh Hawley (R-MO) asked VanDyke about the ABA’s claim that people had expressed concern that he would not be fair to LGBTQ litigants and that he “would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”
VanDyke had kept his emotions in check up until that point, but struggled to keep his composure.
“I did not say that,” VanDyke trembled after a long pause. “No, I did not say that. I do not believe that. It is a fundamental belief of mine that all people are created in the image of God. They should all be treated with dignity and respect, senator,” he added, breaking into sobs.
VanDyke also told Hawley that he was not given a fair opportunity to respond to the allegations during his ABA interview. He said when he was confronted with concerns about his views, he tried to answer but was cut off by the interviewer Marcia Davenport, who said they were running out of time.
Hawley noted that the ABA had made Davenport the lead evaluator in the case, even though she had once contributed to the campaign of a judicial candidate who was running against VanDyke.
“I find that absolutely unbelievable,” Hawley said, stating it “probably explains the totally ad hominem nature of this disgraceful letter.”
At the beginning of the hearing, Committee Chairman Sen. Lindsey Graham (R-SC) asked VanDyke if he thought he could be a fair judge to a gay colleague.
“Do you think you can be fair to anybody who comes before you?” Graham asked.
“Absolutely, Chairman,” VanDyke replied.
“Do you know Patrick over here?” Graham said, referring to VanDyke’s fellow Ninth Circuit nominee, Patrick Bumatay, who is gay. “Could you be fair to him?”
“I would sure hope so. Yes, I would,” VanDyke said.
The ABA’s unfair assessment spurred outrage from conservative groups.
“Even for the ABA, this is beyond the pale,” the Judicial Crisis Network’s Carrie Severino said in a statement, accusing the ABA of “bias against conservative nominees to the judiciary.”
Prior to the hearing, former Nevada State Bar president Alan Lefebvre also blasted the ABA’s evaluation.
“Lawrence’s reputation for excellence in all he strives to do shines through by a sampling of his written product,” Lefebvre said, citing a number of cases VanDyke has worked on in the past. “It would be impossible for a reviewer to challenge such a qualified nominee’s abilities unless he was yoked with an ideologue’s agenda.”
“The ABA is a liberal dark-money group, fronting for trial lawyers who donate millions of dollars to Democratic politicians,” said Mike Davis, who served as chief counsel for then-Judiciary Chairman Chuck Grassley. Davis said the ABA process was “fatally flawed, as it is intentionally structured to couple liberal activists with a subjective, black-box process that oftentimes results in unfair hits on conservative judicial nominees.”
Hawley urged the White House counsel’s office “not to make nominees available any longer to the ABA for these interviews,” and that “they should be treated like any other special interest group.”
Senator Mike Lee (R-UT) also chastised the ABA and questioned their methods. He called for greater transparency and accountability in the ABA’s process for either recommending or not recommending judicial nominees and also asked that the Senate “suspend the unique access that the American Bar Association has until such time as a thorough investigation and review is undertaken to inquire into how these functions are performed.
“The ABA has lost its credibility as a neutral arbiter,” Lee concluded. “It should be treated no differently than any other special interest group.”