Law & the Courts

The ABA’s Attack on Lawrence VanDyke Doesn’t Make Sense

Lawrence VanDyke testifies on Capitol Hill, Oct. 30, 2019. (Sen. Josh Hawley/YouTube)
What kind of nominee suggests in his ABA interview that he would not be a ‘fair’ judge?

Lawrence VanDyke, a judicial nominee for the 9th Circuit Court of Appeals, choked up during his confirmation hearing on Wednesday when he was asked if he might be a bigot.

The day before the hearing, the American Bar Association sent a letter to the Senate Judiciary Committee stating that a majority of its Standing Committee on the Federal Judiciary had determined that VanDyke was “Not Qualified” to serve as a federal judge. According to the ABA’s letter, lawyers interviewed by the ABA anonymously “raised concerns about whether Mr. VanDyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community. Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”

VanDyke, a Harvard Law grad and former solicitor general of Montana and Nevada who is an Evangelical Christian, was questioned about the ABA’s accusation at Wednesday’s hearing.

“Did you say that you wouldn’t be fair to members of the LGBTQ community?” Republican senator Josh Hawley asked.

“I did not say that,” an emotional VanDyke replied. “I do not believe that. It is a fundamental belief of mine that all people are created in the image of God and they should all be treated with dignity and respect.”

Were VanDyke’s comments to the ABA twisted or taken wildly out of context in order to paint him as a bigot? It is hard to believe any judicial nominee would suggest during an interview with the ABA that he might not be “fair” to all litigants.

On Thursday, I contacted the American Bar Association to ask if it would release the transcript of the relevant question VanDyke was asked during his interview and his response to it. “No, the process is confidential,” ABA communications project manager Matthew Cimento told me. “I realize VanDyke spoke about it—what he believed his version was. But we promised him confidentiality.”

What if VanDyke requested that the ABA release the portion of the interview in question? Cimento replied: “I suppose if he wanted us to release what was said in the interview, we could do that.”

Cimento then asserted that his comments were not “for attribution” and he could not speak for the ABA’s Standing Committee on the Federal Judiciary, which is its own entity. “I don’t know exactly what” the Standing Committee “would do,” he said. (At the beginning of the phone call, I had clearly identified myself as a reporter for National Review and never agreed to speak off the record or on background.) I sent an email and left a voicemail for William C. Hubbard, the author of the ABA’s letter and chair of the Standing Committee, but I have not yet received a response.

The ABA’s letter broadly and vaguely impugned VanDyke’s character, stating that lawyers granted anonymity to discuss VanDyke had deemed him “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules. 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’s] description was polar opposite of the Lawrence VanDyke I worked with every day” for four years, former Nevada attorney general Adam Laxalt tells National Review. Laxalt, who hired the six-foot-seven VanDyke to serve as solicitor general, called him a “gentle giant” because “he’s the most humble, low-key guy that you could ever imagine.” He also described VanDyke, who served as an editor of the Harvard Law Review, as “brilliant.”

“He worked well with everyone, and we had full representation of the population in my office,” Laxalt said when asked about anonymous claims VanDyke might not be fair to LGBT Americans. Laxalt said the staff of 400 employees in the Nevada AG’s office had predominantly been hired by his Democratic predecessors.

Laxalt was interviewed by Marcia Davenport, a trial attorney in Montana who served as the ABA’s lead evaluator for VanDyke. Davenport has drawn criticism for not recusing herself from the evaluation because she made a $150 donation to VanDyke’s opponent in a Montana Supreme Court election. Laxalt described Davenport’s interview of him as short and perfunctory: “She did not ask me to comment on anyone else’s critiques of his character or professionalism.”

Several others spoke up in defense of VanDyke on Thursday, as well.

Legal scholar Adam White, a fellow at the American Enterprise Institute who had previously served in the leadership of the ABA’s Administrative Law Section, took to the pages of the Wall Street Journal to dispute the ABA’s characterization of VanDyke.

“I’ve known Mr. VanDyke for nearly 20 years, and that doesn’t sound like my friend. To be sure, I’m biased. But that’s precisely the problem with the ABA’s black-box review system: We have no basis on which to evaluate any of the broad-brush descriptions of Mr. VanDyke,” White wrote. “We don’t know what basis, if any, his critics have for these judgments, or even who they are. We’re expected to take the ABA’s disparagement at face value.”

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