Bench Memos

Law & the Courts

Here’s What Senator Blumenthal Did Not Tell You

Senator Richard Blumenthal (D., Conn.) on Capitol Hill in Washington, D.C., May 1, 2019. (Aaron P. Bernstein/Reuters)

On Dec. 10, Senator Richard Blumenthal (D., Conn.) argued against confirming Lawrence VanDyke to the U.S. Court of Appeals. Doing so, he said, would depart from “bedrock principles that once guided the exercise of the Senate’s constitutional duty to advise and consent” on the president’s nominations. Blumenthal neglected to mention some important information that puts his criticisms in a very different light.

First, Blumenthal said that Van Dyke does not have the support of his home state senators. He failed to explain that, while such support has long been critical for nominees to the U.S. District Court, it is less important for appellate court nominees such as Van Dyke. The reason is obvious. Judicial districts do not extend beyond the borders of a single state, while appeals court circuits include multiple states.

Blumenthal also said nothing about his own voting record. This year alone, he has voted against nearly three dozen district court nominees, each of whom was supported by both home state senators.

Second, Blumenthal noted that the American Bar Association rated Van Dyke “not qualified” for the Ninth Circuit. If past confirmation practice is as important as Blumenthal says, however, this would not disqualify Van Dyke. During the last four administrations, two Republican and two Democrat, 19 judicial nominees have received a “not qualified” rating from the ABA. The Senate confirmed 13 of them, nine of those without any opposition.

Blumenthal knows first hand about the Senate’s treatment of nominees with “not qualified” ABA ratings. In 2006, President George W. Bush nominated Vanessa Bryant to the U.S. District Court in Connecticut. Her ABA rating was identical to Van Dyke’s. The Connecticut Attorney General not only supported Bryant’s nomination, but criticized the ABA’s evaluating and rating process. In particular, he expressed great concern “with the credibility of anonymous sources when those sources are used as evidence for a subjective characteristics such as judicial temperament.” That AG was Richard Blumenthal.

In addition, so far in 2019, Blumenthal has voted against 40 judicial nominees who had been rated “well qualified” by the ABA. Perhaps that ABA rating just isn’t as big a deal as Blumenthal now suggests.

Third, Blumenthal claimed that, as a judge, Van Dyke would handle issues the same way he had as a lawyer in private practice or as Solicitor General of Nevada and Montana. It is common for the Left to say that judges decide cases based on their personal views and to virtually ignore the distinction between the advocate who appears before the bench and the judge who sits behind it. The oath of judicial office required by federal statute, however, requires judges to decide cases impartially and to do equal justice to every litigant — exactly the opposite of the politicized judicial process Blumenthal apparently advocates.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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