The Corner

Law & the Courts

When Did the ABA Start Endorsing Hearsay Evidence?


The American Bar Association’s Standing Committee on the Federal Judiciary has rated Ninth Circuit nominee Lawrence VanDyke “not qualified” on the grounds that he is “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” The committee’s evidence for these charges is that — wait for it — some unnamed interviewees said so. That’s it. The ABA provides no verifiable examples of Mr. VanDyke’s allegedly poor character and no on-the-record statements from witnesses. This is a textbook example of hearsay evidence that would not be admissible in court. That an association of lawyers, of all people, would expect it to be taken seriously is very dispiriting.

Of course, the Senate is not conducting a criminal trial when it decides on VanDyke’s nomination, but I see no reason why hearsay should be given any weight, as the same concerns about the truthfulness and neutrality of second-hand information are still present. In fact, due to their political nature, confirmation hearings seem especially susceptible to biased rumor-mongering. If there really are witnesses who have found VanDyke to be “arrogant, lazy” etc., let them testify to that fact themselves, under oath, in an open hearing where their reliability can be assessed.

Unless that happens, the Senate should handle the ABA’s “evidence” in the same manner that a judge would in a criminal trial: discard it.

Jason Richwine is a public-policy analyst and a contributor to National Review Online.

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