Bench Memos

Law & the Courts

The ABA Has Outdone Itself Rating Lawrence VanDyke ‘Not Qualified’

Today the ABA Standing Committee on the Federal Judiciary notified that Senate Judiciary Committee that it has given a rating of “Not Qualified” to Lawrence VanDyke, President Trump’s nominee to the Ninth Circuit. The ABA has amassed quite the history of bias against conservatives over the last few decades, but with VanDyke, it has really outdone itself.

VanDyke graduated magna cum laude from Harvard Law School and served as an editor of the Harvard Law Review. He clerked for Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit before launching his appellate career.  VanDyke has the distinction of having served as both the solicitor general of Montana and Nevada, where he oversaw every important case affecting those states. He has argued over 20 appeals in the federal circuit courts (most in the Ninth Circuit) and has been the counsel of record on 28 briefs before the U.S. Supreme Court. Lawrence VanDyke is one of the standout appellate litigators of his generation.

Nonetheless, the ABA has made the astonishing determination that VanDyke is “Not Qualified.”  Consider for a moment the absurdity of that conclusion applied to someone who would be the only circuit judge to have served as the chief appellate litigator of two states—and one with major victories under his belt.  Yet even the Committee could not ignore the VanDyke’s impressive resume and experience, noting that it “was tasked with balancing Mr. VanDyke’s accomplishments with strong evidence that supports a ‘Not Qualified’” rating.  So instead, the Committee alleged that Mr. VanDyke lacks “professional competence” and “judicial temperament.”

The ABA is correct to recognize there are concerns here, but they are properly directed to the ABA and Van Dyke’s lead evaluator, Marcia Davenport, a trial attorney in Montana. A search of Montana’s campaign electronic reporting system shows that in 2014 Davenport contributed $150 to Michael Wheat, VanDyke’s opponent when he ran for a seat on the Montana Supreme Court. Yes, you read that correctly: VanDyke’s lead ABA evaluator has a history of opposing VanDyke politically. Moreover, the linked contribution report shows dozens of campaign contributions made by Ms. Davenport in recent years, but never one to a Republican (note that Davenport’s maiden name is Maynard).

And whom did Davenport rely upon in writing her evaluation? We can safely assume that at least one person she interviewed was Michael Black, given her reference to “600 pages of publicly produced emails” that she used in writing her formal report. Black was the Chief of the Civil Division Bureau of the Montana Department of Justice, and also publicly opposed VanDyke when he ran for the Montana Supreme Court, launching personal attacks against VanDyke. After Black came out against VanDyke in 2014, he told the Great Falls Tribune, “[Black’s] had a long, sort of mysterious vendetta against me, and I’m not sure why.” Black unsuccessfully sought a seat on the Montana Supreme Court, applying for an appointment in early 2014 when a seat came open.

So there you have it. A left-wing partisan who opposed Lawrence VanDyke in Montana led the ABA’s evaluation process, interviewing other political foes of VanDyke and — surprise! — found their gripes about his professionalism and temperament to be very credible. And then the ABA Standing Committee blessed that sham of a process by giving VanDyke a “Not Qualified” rating.

The Code of Judicial Conduct takes the issue of a judge’s impartiality seriously. Canon 3 states: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which . . . the judge has a personal bias or prejudice concerning a party.” Yet the ABA—whose self-professed mission is “to serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession” — ironically can’t recognize the compromised impartiality of VanDyke’s lead evaluator.

And of course, this is just one more drop in the bucket with respect to the ABA’s long history of bias against conservative nominees to the judiciary. Thankfully the ABA is given very little credence by Republican presidential administrations and senators because of its embarrassing history, but this latest episode shows that it should have no role whatsoever in the judicial nomination process.

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