Law & the Courts

Smearing Lawrence VanDyke

(Carlos Jasso/Reuters)
The American Bar Association and critical journalists have done little to substantiate their claims about the judge.

Lawrence VanDyke was confirmed Thursday to the Ninth Circuit Court of Appeals, and several journalists are pointing out that the American Bar Association published a scathing letter about VanDyke in which the ABA asserted he was unqualified to serve as a federal judge.

“Lawrence VanDyke got a ‘not qualified’ ABA rating because his OWN colleagues described him as ‘arrogant, lazy, an ideologue, and lacking in knowledge of the day-today practice including procedural rules,” tweets Jennifer Bendery of HuffPost. The same ABA letter claims that “Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”

There are several reasons why the ABA’s attacks on VanDyke are either dubious or absurd.

First, the ABA’s lead evaluator of VanDyke was a trial attorney in Montana who made a $150 donation to VanDyke’s opponent in a Montana Supreme Court election. Adam Laxalt, the former Nevada attorney general who hired VanDyke to serve as solicitor general, described Davenport’s interview as perfunctory. Why didn’t Davenport recuse herself? The ABA has not explained that.

Second, the ABA’s attacks on VanDyke are all based on anonymous interviews, and the criticism has not been substantiated. Adam White, a well-respected legal scholar at the American Enterprise Institute who previously served in the leadership of the ABA’s Administrative Law Section, defended VanDyke in the Wall Street Journal and criticized the ABA’s “black-box review system.”

“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.”

Several other legal scholars and colleagues spoke up in defense of VanDyke’s character and intellect. VanDyke was an editor of the Harvard Law Review before serving as the solicitor general for the states of Nevada and Montana. To my knowledge, none of VanDyke’s detractors has provided to the public a specific example of VanDyke’s being “lazy” or “lacking in knowledge.” Some lawyers might fear publicly taking on someone on his way to becoming an appellate judge. But if there are so many lawyers out there with so many stories of VanDyke’s alleged flaws, couldn’t a reporter find just one to anonymously provide a specific example of VanDyke’s misdeeds? That hasn’t happened.

Third, the attack on VanDyke as a possible anti-LGBT bigot appears to be absurd.

VanDyke was asked about the ABA’s claim during his confirmation hearing. “Did you say that you wouldn’t be fair to members of the LGBTQ community?” Republican senator Josh Hawley (Mo.) asked.

“I did not say that,” VanDyke replied, as he began to choke up. “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.”

It simply doesn’t stand to reason that any judicial nominee would suggest he might not be “fair” to “any litigant before him.” The ABA has refused to release the precise wording of the question asked of VanDyke but has been more than happy to characterize VanDyke’s supposedly incriminating response in the worst light possible.

This attack on VanDyke appears to have more to do with the fact that he is an evangelical Christian who had previously done legal work for Alliance Defending Freedom, a Christian legal organization that works to protect religious liberty.

In the end, mudslinging did little to jeopardize VanDyke’s confirmation. He got the vote of every Senate Republican present except Susan Collins and became the 50th appeals court nominee confirmed during the Trump administration.

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