Law Professors Criticize Judge Lawrence VanDyke
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Circuit Judge Criticized for Footnote Comparing His Colleagues to Career Criminals with Rap Sheets

Lawrence VanDyke cries during his confirmation hearings

A federal appeals court judge increasingly known for his at times odd musings has drawn the attention – and ire – of some legal experts and appellate attorneys for a footnote in a recent case where he compared his colleagues on the bench to criminals with extensive prior records.

U.S. Circuit Judge Lawrence VanDyke, who sits on the Ninth Circuit Court of Appeals, penned a lengthy dissent in a case about the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996.

“Our circuit’s cases misapplying AEDPA deference are legion, and the resultant game of whack-a-mole the Supreme Court has been forced to play with our habeas decisions is so well known at this point as to need no supporting citation,” the dissent begins.

The footnote to that sentence reads: “To give credit where credit is due: my diligent clerk did prepare a very nice string-cite spanning multiple pages. But including it felt awkward—like trying to shame a career offender with his rap sheet.”

The line was not well received by some.

“I genuinely don’t care who appointed who or what the topic is or how serious the disagreement is – judges should not write like this about their colleagues,” appellate attorney Raffi Melkonian chided via Twitter. “Call me a putz or a Pollyanna. But no.”

“Exactly so,” replied University of Texas Law Professor Steve Vladeck — who began the social media call-out by sharing the screenshot initially, saying, “In which one circuit judge compares his colleagues to a career criminal, and a list of decisions in which they’ve been reversed by #SCOTUS their ‘rap sheet.'”

“Who would’ve thought an anti-gay bigot might not be so nice on the bench?” asked Georgia State Law Professor Anthony Michael Kreis.

In 2019, the American Bar Association rated then-Trump judicial nominee VanDyke “Not Qualified.” The move resulted in an uproar from conservative activists, who called the rating a “political drive-by shooting.” Part of the ABA’s decision was based on impressions from several interviewees who expressed concern that VanDyke might not be “fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community.” VanDyke tearfully denied that at a hearing and went on to be confirmed.

Sen. Mike Lee (R-Utah) asked VanDyke if he had any “personal animus against LGBT persons.”

“None at all,” VanDyke said. “It’s a fundamental belief of mine that all people are created in the image and likeness of God.”

Additionally, the ABA said that VanDyke’s long career in law was “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.”

University of Michigan Law Professor Leah Litman cited the ABA’s evaluation in a brief Twitter thread about VanDyke:

Dozens of others also joined in on the pile-on, with many wondering what conservative judicial activists had to say about the ABA’s evaluation now.

“Remember when the Harvard Law career office chastised students for refusing to apply for a clerkship with VanDyke?” legal journalist Mark Joseph Stern mused. “Can’t imagine why they wouldn’t leap at the opportunity.”

The castigated judge’s voluble dissent and footnote were issued in a case concerning Keith Ford, who was convicted of murder in the first degree in 2014. Ford appealed to state and federal courts based on the premise that his rights were violated by the prosecutor who misstated the law during closing argument by saying:

This idea of this presumption of innocence is over. Mr. Ford had a fair trial. We were here for three weeks where . . . he gets to cross-examine witnesses; also an opportunity to present evidence information through his lawyer. He had a fair trial. This system is not perfect, but he had a fair opportunity and a fair trial. He’s not presumed innocent anymore.

Ford’s habeas corpus petitions were rejected by several courts until a three-judge panel on the Ninth Circuit took the case. At first, they granted the petitioner relief. Then, however, another judge on the circuit requested an en banc hearing on the case–a hearing in which the entire Ninth Circuit would have reviewed the decision.

“Confronted with an en banc petition, the panel was forced to reverse itself, issuing an amended opinion that, this time, begrudgingly deferred to the state court’s conclusions on the part of Ford’s case that mattered, and so appropriately denied habeas relief,” VanDyke noted. “As Judge [Ryan D.] Nelson observed in his partial dissent from the panel’s amended opinion, this was a commendable move that likely saved the panel majority from being reversed either by our own court en banc or by the Supreme Court.”

In issuing the revised opinion, the Ninth Circuit panel denied the convicted murderer the win he’d been seeking for over six years–but Judge VanDyke was upset about the way in which this decision was handled. That’s because the revised opinion contained a lengthy discussion about when deference under the AEDPA is warranted.

The concept of AEDPA deference stems from the statute’s language that limits the relief available under the writ of habeas corpus.

Under the law, federal judges are limited from granting such relief when state courts have previously issued contrary opinions. The only time federal courts can effectively overrule state courts on such questions is when the state court makes an error that is so bad it is later determined to have been harmful. Errors deemed harmless, however, are not enough to overcome AEDPA deference.

Under several Supreme Court rulings, the power of state courts has been consistently enlarged to the detriment of federal courts who have tried to offer criminal defendants habeas corpus relief.

In essence, the Supreme Court now tells lower courts that the prejudicial effect of the government’s misconduct must be taken into account–a prosecutor’s error alone is not enough for relief.

But in its revised opinion, the Ninth Circuit sought to claw back some of that lost power by noting that “even if there were a state-court decision holding that the prosecutor did not misstate the law, we would conclude that such a holding would have been unreasonable.”

Here’s how VanDyke described that bit of dicta:

[A]las, like a sullen kid who spits in the cookie jar after being caught red-handed, the panel majority decided that if they couldn’t get away with directly defying AEDPA in this case, they could at least opine in their revised opinion about how they would refuse to defer to a purely hypothetical state court ruling not presented in this case at all.

That imagery also was cause for an upbraiding on legal Twitter:

[image via screengrab/C-SPAN]

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