GOP Critics: ABA to Face Senate Action After Suspect VanDyke Rating

GOP Critics: ABA to Face Senate Action After Suspect VanDyke Rating
AP Photo/Carolyn Kaster
GOP Critics: ABA to Face Senate Action After Suspect VanDyke Rating
AP Photo/Carolyn Kaster
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Senate action against the American Bar Association’s black-box rating system for judicial nominees is just a matter of time, according to conservative critics. 

So far, senators aren’t rushing to haul ABA officials up to Capitol Hill to answer questions about the integrity of its process for evaluating President Trump’s judicial nominees amid a fierce new wave of criticism about the group’s latest “not qualified” rating.

An ABA spokesman told the RealClearPolitics that the group had not received any Senate requests to appear before the Judiciary Committee as of Tuesday afternoon. Washington insiders predicted it could take until next year for any grilling of the ABA to occur; that’s when Sen. Chuck Grassley will retake the panel’s chairmanship from Sen. Lindsey Graham if Republicans maintain their majority in the upper chamber.

But more scrutiny of the ABA is definitely on its way after the once-vaunted organization took a beating during last week’s dramatic confirmation hearing of Lawrence VanDyke, a nominee for the Ninth Circuit U.S. Court of Appeals.

The ABA had issued a rare “not qualified” rating of VanDyke on the eve of the hearing. Its accompanying letter included highly personal attacks on his character and work ethic, arguing that the nominee’s professional accomplishments are “offset by the assessment of interviewees that VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.”

Conservatives groups denounced the “not qualified” rating, labeling it an attempted “drive-by shooting” motivated more by the Trump nominee’s conservative leanings and expected opinions on abortion-related and environmental cases than any job performance or true character issues.

With VanDyke’s nomination pending, Trump could latch onto the conservative ire toward the ABA Wednesday afternoon during a White House event on his judicial nomination successes. As of late October, the Senate has confirmed 157 federal judges the president has nominated, which Trump has boasted is a percentage-wise record of confirmations that pales only beside George Washington’s.

VanDyke, who graduated magna cum laude from Harvard, served as the solicitor general of two states and argued more than 20 appeals in the federal circuit courts, grew tearful during the hearing last week when disputing an ABA claim that he would “not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”

“I did not say that. I do not believe that,” VanDyke responded, choking up. “It is a fundamental belief of mine that all people are created in the image of God. They should all be treated with dignity and respect.”

Earlier that day, news broke that the lead evaluator for the “not qualified” rating, Montana trial attorney Marcia Davenport, had made a political donation to a judge during a 2014 campaign in which VanDyke was challenging him for a Montana Supreme Court seat.

That donation should have prevented Davenport from serving as the lead evaluator of VanDyke’s nomination, according to the ABA’s internal rules. The association declined to comment when RCP asked why Davenport was not disqualified from the lead evaluator position, and the spokesman referred to a letter its president, William Hubbard, sent to senators defending the “not qualified” rating as “based on 60 interviews with a representative cross-section of lawyers (43), judges (16) and one other person who have worked with the nominee in the states where he has worked who are in a position to assess his professional qualifications.”

Hubbard argued that the ABA’s ratings are nonpartisan, noting that nearly all of the 264 ratings it’s provided of Trump’s nominees have been favorable. With VanDyke’s included, the ABA has rated nine of Trump’s nominees “not qualified,” a record number. That compares to zero such ratings of President Obama’s nominees, eight of George W. Bush’s and four of Bill Clinton’s.

The ABA declined to provide a breakdown of how many lawyers and judges were interviewed from each state where VanDyke spent his career and whether those numbers lined up with the amount of time he spent in each role. For instance, VanDyke served as solicitor general of Montana for less than a year and spent four years in the same position in Nevada.

Fireworks at last week’s confirmation hearing included calls from the right, as well as the left, to investigate the ABA’s evaluation process. Conservative senators argued for ending the organization’s elevated role in evaluating judicial nominees and the deference the Senate Judiciary Committee has traditionally granted its evaluations.

Sen. Mike Lee, a Utah Republican, called on the Senate and the White House to “suspend the unique aspect the American Bar Association has, until such time a thorough investigation and review is undertaken into how these functions are performed. … The ABA has lost its credibility as a neutral arbiter and should be treated no differently than any other special interest group, which it is.” 

Lee referred to a 2012 academic paper published in Political Research Quarterly that found “strong evidence of systematic bias in favor of Democratic nominees” in the ABA’s vetting process.

Sen. Ted Cruz lambasted the group’s “long and ridiculous record of behaving as a partisan mouthpiece when it comes to judicial nominations.” He pointed to federal election records showing that the majority of the ABA’s standing committee that evaluates nominees had donated more than $60,000 to Democratic candidates and related groups and none to Republicans in recent election cycles.

One of the more liberal senators on the judiciary panel, Rhode Island Democrat Sheldon Whitehouse, surprised some of his Republican colleagues in echoing the call for an investigation into the ABA’s evaluation practices.

“I’m no fan of the ABA,” he said during the hearing, even as he amplified the “pretty darned serious concerns” raised in VanDyke’s evaluation.

“We can resolve this by bringing in the ABA folks and letting them explain what the basis was for these charges, what cases they were talking about,” he said. “We can do it in a private way.”

“Just to gloss over concerns that have been publicly raised of this magnitude is a very bad precedent for us to set,” Whitehouse added.

Mike Davis of the Article III Project, a conservative judicial advocacy group, urged the Senate Judiciary Committee to question the ABA on several inconsistencies in the evaluation and its own rules governing it.

Davis questioned the ABA’s claim that VanDyke would not affirm his impartiality to all litigants involved in cases that come before him, including members of the LGBTQ community. VanDyke, during his sworn testimony, flatly denied failing to make that affirmation during his evaluation.

Davis also complained that the ABA has refused to disclose the names of the individuals it interviewed to form the basis of its evaluation, or provide transcripts, notes or recordings of its interviews with names redacted. 

“If the ABA ran this evidentiary process in any courtroom across American, they would be sanctioned by a judge,” he told RCP. “The ABA has publicly advocated for more due-process rights for suspected terrorists at Gitmo than the ABA provides to conservative judicial nominees.” 

Davis added, “When liberals like Sen. Sheldon Whitehouse are so stunned by the ABA’s political drive-by shooting of a conservative judicial nominee that he calls for a follow-up, you know the ABA is in trouble.”

Over the last week, several attorneys interviewed by the ABA during its VanDyke evaluation said they were shocked to learn of the “not qualified” rating and the attacks on his character and professionalism.

“It’s just completely shocking that the ABA could have rated someone of Lawrence’s caliber as ‘not qualified,’” former Nevada Attorney General Adam Laxalt told RCP. “What’s worse is that the string of attacks on him accusing him of being lazy, incompetent and lacking humility are absolutely 100% the polar opposite of the Lawrence VanDyke I worked next to for four years.”  

Laxalt, a Republican who ran an unsuccessful campaign for governor last year, hired VanDyke as solicitor general and the two worked closely together to defend the state from legal actions against it from 2015 to 2019.

“To invert his greatest traits – he is one of the most humble human beings I’ve ever known in my life – that is so disappointing and deeply saddening to him,” Laxalt said. “My range of emotions goes from deeply disappointed and saddened to very angry and upset that something clearly nefarious is going on here for them to arrive at the polar opposite results of the man I know.”

He described Davenport’s interview with him as perfunctory and lacking in follow-up questions, as if she had already reached a conclusion and was just going through the motions to check off enough boxes of people interviewed.

Laxalt wants to know exactly whom the ABA interviewed or at least get a breakdown of how many were from VanDyke’s one-year experience in Montana compared to the four years he spent as solicitor general in Nevada.

“If it’s a giant balancing scale, then how did the Nevada positives not outweigh the short stint in Montana?” he asked. “That’s the problem with the ABA – it’s very subjective.”

Another attorney the ABA interviewed, Joseph Tartakovsky, who served as the deputy solicitor general in Nevada, expressed similar concerns.

Tarakovsky said the interview lasted between five and seven minutes and Davenport didn’t ask any real follow-up questions nor did she ask about the nominee’s temperament or his ability to serve as a judge even though the ABA’s letter said “[t]he negative issues discussed in this letter were thoroughly discussed with interviewees.”

“I told her candidly my views, which are that Lawrence is an incredibly talented lawyer – one of the best legal strategists that I’ve ever worked with,” he said. “… He was one of the best in what we in the business call spotting issues.”

“I would say these things and [Davenport] would just move on to the next question. She didn’t seem to be trying to develop a positive record,” he said.

Ashley Johnson, another attorney who had a close working relationship with VanDyke for several years when both worked in the Dallas office of Gibson Dunn, tweeted about her brief interview experience with Davenport.

“I told her truthfully, that he was an excellent lawyer, a very good friend, a hard worker, and would have admirable judicial temperament,” Johnson wrote.

“The call lasted fewer than 5 minutes. She did not say that she had received ANY negative comments or ask if they matched my experience over the 13 years I have known Lawrence. Instead, she read through what was clearly a script of questions, thanked me for my time, and hung up.”

Susan Crabtree is RealClearPolitics' White House/national political correspondent.

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