Lawrence J.C. VanDyke grew emotional, with his face turning red as he defended himself against the letter’s conclusions that he could would not treat LGBTQ litigants fairly.
“I do not believe that,” VanDyke said. “It is a fundamental belief of mine that all people are created in the image of God,” adding, “they should all be treated with dignity and respect.”
The rare outburst comes as the ABA is under continued attack from conservatives who question its methodology and argue that the group that has rated potential nominees for decades is biased against conservatives. It also comes as the President and Senate Republicans have pushed through a record number of judicial nominees as Democrats have questioned their qualifications.
President Donald Trump nominated VanDyke, who currently serves as a deputy assistant attorney general for the Environment and Natural Resources Division at the Department of Justice, last month for the post on the 9th US Circuit Court of Appeals. The President has repeatedly attacked the liberal-leaning 9th Circuit for rulings that have blocked administration initiatives, especially on immigration.
The ABA on Tuesday night issued a blistering analysis of the nomination.
“Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” William C. Hubbard, chair of the ABA’s standing committee on the federal judiciary, wrote. “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.”
So far, at least six of the President’s nominees have received a “not qualified” rating as the Trump administration and the Republican-led Senate has transformed the face of the judiciary by placing nearly 160 nominees on the federal bench including two Supreme Court nominees. But the letter triggered an angry backlash from supporters of the Harvard-educated lawyer who called it a hit job from a liberal-leaning group.
“The ABA is a liberal dark-money group, fronting for trial lawyers who donate millions of dollars to Democratic politicians,” said Mike Davis, who served as chief counsel for then-Judiciary Chairman Chuck Grassley and now runs the Article III project, a group that supports Trump’s nominees. Davis calls the ABA process “fatally flawed, as it is intentionally structured to couple liberal activists with a subjective, black-box process that oftentimes results in unfair hits on conservative judicial nominees.”
And Carrie Severino of the Judicial Crisis Network, which advocates for conservative nominees, charged that the lead evaluator of VanDyke, Montana attorney Marcia Davenport, previously contributed to Van Dyke’s opponent in a 2014 election for a seat on the Montana Supreme Court.
That criticism from this Congress has been muted of late, however, because Senate Judiciary Chairman Lindsey Graham, a South Carolina Republican, has praised the group’s role.
VanDyke is former solicitor general of both Montana and Nevada, but the ABA letter about his fitness for the federal bench was particularly harsh on his temperament. It notes that some interviewees raised concerns about whether 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,” the letter said.
At the hearing, VanDyke said he was “disappointed, shocked and hurt” when he received the letter Tuesday night. He testified that he was “still processing” it and said he’d since learned that one of the ABA raters involved had donated to his opponent when he ran for a state judiciary race and ultimately lost. He said that during a three-hour meeting with the ABA as the group studied his record in connection with the nomination to federal court, he tried to respond to some of the negative comments lodged against him but the rater told him that she was in a “hurry” and that she wouldn’t let him fully respond.
Graham turned to another nominee, Patrick J. Bumatay, who was sitting next to VanDyke, and is also up for a seat on the 9th Circuit. During his opening statement, Bumatay had introduced his husband and their two children. Graham asked Bumatay if he thought VanDyke could be fair to him. Bumatay said he could.
Democrats on the committee, meanwhile, reacted with concern about the allegations in the letter.
Sen. Patrick Leahy called it “one of the most alarming he’d seen” after some 45 years in Congress. Sen. Chris Coons noted that the letter was “fairly damning” because it was based on interviews with people who had worked with the nominee over the years. Sen. Sheldon Whitehouse suggested that the ABA should be brought in to testify about the matter.
But Republican Sen. Mike Lee reacted furiously, claiming that the letter was “unfounded.” “If this man is not qualified, I don’t know who is,” Lee said. He added that the ABA no longer deserves a “seat at the table” because it has little transparency and cannot be seen as a neutral player when it comes to confirmation hearings.
“The time has come,” Lee said, for the White House and the committee to suspend the ABA’s involvement until there could be a thorough investigation. Texas GOP Sen. Ted Cruz said the group had found VanDyke to be guilty of “practicing law while conservative.”
Asked for comment, the ABA declined to comment on the record, but acknowledged that Davenport had made a $150 contribution to VanDyke’s opponent.
One ABA official said that the group were not going to comment on a $150 contribution made five years ago and pointed to the group’s rules that specify a member of the standing committee agreed not to participate in, or contribute to, any federal election campaign or engage in any partisan political activity on a federal level. The race in question was for the Montana state Supreme Court.
Importance of ABA ratings
The ABA ratings have been used to criticize Trump nominees who liberal critics fear, and conservatives hope that will provide major rulings on issues such as abortion, the Second Amendment and affirmative action. And if some of those cases make their way to the Supreme Court, conservatives will be content to know that the strong conservative majority with Neil Gorsuch and Brett Kavanaugh will be there to rule in their favor.
As of last week, the Senate has now confirmed five judges the ABA deemed unqualified: Leonard Steven Grasz, Charles Barnes Goodwin, Holly Lou Teeter, Jonathan Kobes, and Justin Walker. Goodwin and Teeter received support from Democrats, while the other three were approved only with Republican votes.
Overall, the setbacks have been few as Senate Majority Leader Mitch McConnell has pushed through a record number of appellate judges and often praises a legacy that will last decades.
Two Trump judicial nominees who have been called unqualified by the ABA — John O’Connor and Brett Talley — have withdrawn from consideration. But the setbacks for McConnell and Trump have been far outweighed by their successes in confirming scores and scores of judges. Their effort to reshape the judicial branch with young conservatives is perhaps their longest-lasting legacy.
Last week, Graham shepherded the confirmation of Justin R. Walker, 37, an assistant professor of law at the Brandeis School of Law at the University of Louisville, who received a “not qualified” rating from the ABA, to be a judge on a US district court.
A spokesperson for the ABA said that its rating process is done by a standing committee of the federal judiciary which is independent of the ABA leadership and does extensive peer reviews of the nominees writings and interviews with people who have worked with them. They have three criteria: integrity, temperament and experience and say that ideology does not factor in the evaluation at all.
The ABA rated Walker not qualified, it said in a letter, because he “does not presently have the requisite trial or litigation experience or its equivalent.” The letter stressed that the committee had no questions on his temperament or integrity and that in the future it felt like he had “great potential to serve as a federal judge.”
McConnell, for his part, called Walker “unquestionably the most outstanding nomination that I’ve ever recommended to Presidents to serve on the bench in Kentucky.”
Another nominee the ABA has deemed unqualified is US district judge nominee Sarah E. Pitlyk, who serves as a special counsel at the Thomas More Society, a national public interest law firm that has litigated against Planned Parenthood and was nominated for the Eastern District of Missouri.
The Senate Judiciary Committee is scheduled to vote on her nomination Thursday.
The ABA also criticized her lack of trial and litigation experience.
“A nominee to the federal bench ordinarily should have a minimum of 12 years’ experience in the practice of law,” the committee wrote, although they said the guideline is “neither a hard-and-fast rule or an automatic disqualifier.” “However, Ms. Pitlyk’s experience to date has a very substantial gap, namely the absence of any trial or even real litigation experience.”
“Ms. Pitlyk has never tried a case as lead or co-counsel, whether civil or criminal,” wrote William Hubbard, chair of the ABA’s standing committee on the federal judiciary. ‘She has never examined a witness. “Though Ms. Pitlyk has argued one case in a court of appeals, she has not taken a deposition. She has not argued any motion in a state or federal trial court. She has never picked a jury. She has never participated at any stage of a criminal matter.”
That letter sparked a fight during Pitlyk’s nomination hearing before the Judiciary Committee. Sen. Ted Cruz, R-Texas, said the ABA has a “ridiculous record of behaving as a partisan mouthpiece when it comes to judicial nominations,” and that some members have donated to Democratic lawmakers.
Illinois Democratic Sen. Dick Durbin then remarked that Hubbard had donated to Graham in the past.
“A good man,” joked Graham. He later defended the ABA’s recommendations as “helpful,” calling it a “fine group” that was politically left in his view, but employed people whose judgment he trusts. Graham added that it failed to appreciate Pitlyk’s “non-traditional practice.”