The American Bar Association (ABA), on the eve of a Trump judicial nominee’s hearing before the Senate Judiciary Committee, said that Lawrence VanDyke was “not qualified” to serve on the United States Court of Appeals for the Ninth Circuit. The ABA went so far as to say that 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.” Conservatives immediately responded that the timing and tenor of the letter suggested a “political drive-by shooting.”
Per the letter addressed to Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) and Ranking Member Dianne Feinstein (D-Calif.):
The evaluator’s Formal Report is based on 60 interviews with a representative cross section of lawyers (43), judges (16), and one other person who have worked with the nominee in the four states where he has worked and who are in a position to assess his professional qualifications. They include but are not limited to attorneys who worked with him and who opposed him in cases and judges before whom he has appeared at oral argument. The evaluator obtained detailed background materials such as more than 600 pages of publicly produced emails involving and/or written by Mr. VanDyke, news reports where Mr. VanDyke had been interviewed, and articles and opinions written about him.
Although the ABA says VanDyke is “a highly educated lawyer with nearly 14 years of experience in appellate law, including one year as a law clerk, an associate in a law firm, and as a Solicitor General for over five-plus years, first in Montana and then Nevada, two states in the Ninth Circuit where he would serve if confirmed,” these accomplishments are “offset by assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to- day practice including procedural rules.”
What’s more, the ABA says, 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.” The ABA claimed that interviewees expressed concern, for example, that VanDyke might not be “fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community.”
The ABA concluded that VanDyke is “clearly smart,” but may not have been prepared in cases “in which he did not have a particular personal or political interest.”
Mike Davis, a former law clerk to Neil Gorsuch and former Chief Counsel for Nominations to then-Senate Judiciary Chairman Chuck Grassley (R-Iowa), is calling foul on the ABA letter. Davis is now the president of the conservative group The Article III Project, which “fight[s] to confirm President Trump’s judicial nominees — and punch[es] back at leftwing attacks on nominees, the process, judges, & judicial independence.”
Davis called out Marcia Davenport, calling her the ABA’s “secret evaluator.” Davenport’s name is on the ABA letter under the Ninth Circuit.
He claimed that Davenport donated to a VanDyke opponent during the 2014 Montana Supreme Court race. Law&Crime attempted to reach Davenport by email for comment. The photo of VanDyke at the top of the story is from a VanDyke campaign video. The topic of the video? Judges shouldn’t legislate from the bench; they should follow the law, not politics.
Davis touted VanDyke’s accomplishments and the fact that he has never been reprimanded by a court. He also disputed one key line of the ABA letter (“Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community”).
“The ABA letter falsely claims that Lawrence VanDyke ‘would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community,'” Davis claimed. “In fact, he flatly told the secret ABA evaluator (Marcia Davenport) that he would be fair to all litigants.” Davis pointed to the ABA website, where there is an amicus brief available for viewing. That brief has VanDyke’s name on it as counsel in support of the petitioner, Gays & Lesbians for Individual Liberty.
(2) The ABA’s evaluation of nominees is fatally flawed, as it is intentionally structured to couple liberal activists (like Marcia Davenport) with a subjective, black-box process that oftentimes results in unfair hits on conservative judicial nominees (like Lawrence VanDyke).
— Mike Davis (@mrddmia) October 30, 2019
Davis called the ABA’s evaluations “fatally flawed” and this one, in particular, a “political drive-by shooting.”
Berkeley Law Professor Orin Kerr called the letter “remarkable” and said he didn’t think he’s “seen anything like this before.”
Conservative judicial activists noted that the ABA letter sparked the former President of the Nevada State Bar to “quit in protest.”
Carrie Severino, Chief Counsel and Policy Director at the conservative Judicial Crisis Network, mentioned VanDyke’s challenges of Obama administration “overreach” in her statement supporting the nominee.
“Lawrence VanDyke was a classmate of mine at Harvard Law School, and you couldn’t ask for a better lawyer or a man of more exemplary character,” Severino said. “With deep roots in the West, Lawrence is very familiar with the challenges faced by states in the Ninth Circuit, and, as Solicitor General for Montana and Nevada, he was on the frontlines of the legal challenges to the overreach by the Obama Administration and its job-killing EPA.”
Hiram Sasser, General Counsel for the conservative, religious liberty-focused First Liberty Institute, said in a statement that the American Bar Association launched an “eleventh-hour attack” filled with “political smears.”
“The American Bar Association’s subversive attack on Lawrence VanDyke should shock all Americans. This eleventh-hour attack and attempted character assassination of a brilliant lawyer was spearheaded by VanDyke’s former political opponent, and it should be rejected without further consideration,” Sasser said. “VanDyke defended America’s most cherished freedoms—including the dignity of the individual and the freedoms of speech, religion, and more—as a public servant and in private practice. Anyone who validates the ABA’s political smears is woefully ignorant of VanDyke’s qualifications and professionalism.”
A team of individuals VanDyke worked with when he was Solicitor General of Nevada said the ABA’s criticism of VanDyke’s professionalism and work habits “could not be more false.” They signed their names on the statement.
At the VanDyke hearing, Sen. Mike Lee (R-Utah) asked the nominee directly if he would be fair and impartial to all litigants and to judge them by the merits of claims and their legal arguments. VanDyke said, “Absolutely, senator.” He committed to have an open mind, committed not to prejudge a case, and committed to follow the law where it leads.
VanDyke was also asked if he had any “personal animus against LGBT persons.”
“None at all,” he said. VanDyke teared up and said, “It’s a fundamental belief of mine that all people are created in the image and likeness of God.”
Sen. Lee, for his part, ripped the ABA.
Read the ABA letter below.
[Image via YouTube screengrab]
Have a tip we should know? [email protected]