by Brenée Goforth
Communications Associate, John Locke Foundation
The American Bar Association (ABA) has been known to give conservative judges lower ratings than liberal judges. That truth was prominently on display last week when the ABA issued a letter to the Senate Judicial Committee holding that Lawrence VanDyke is “not qualified” to serve on the United States Court of Appeals for the Ninth Circuit.
This week, JLF’s Jon Guze responded with a research brief, strongly disagreeing. He wrote:
By any objective measure, Mr. VanDyke is clearly well qualified. He graduated magna cum laude from Harvard Law School, and while he was there, he was an editor of the Harvard Law Review, the most prestigious law journal in the country. He clerked for Janice Rogers Brown on the United States Court of Appeals for the District of Columbia Circuit… And he went on to serve successively as assistant solicitor general of Texas, as solicitor general of Montana, and as deputy assistant attorney general for the United States Department of Justice.
Guze explains, Mr. VanDyke was ruled “unqualified” because, according to the letter:
“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. 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.”
While the letter never specifies a single witness to, or action of, Mr. VanDyke’s that would support these claims, Guze writes that numerous people have come out publicly to say the opposite:
Another attorney who has worked with VanDyke, former Utah solicitor general Parker Douglas, found it “a little surprising” that he was not interviewed by the ABA, given his history working alongside VanDyke. “I was surprised by the letter,” Douglas told Fox News. “The guy’s not lazy, I can tell you that,” he added. He recalled having esoteric conversations with VanDyke about appellate procedure, called him a “great appellate practitioner, and said it would be “just nonsense” to say otherwise.
…Joseph Tartakovsky, who was the Nevada deputy solicitor general for three years under VanDyke, said, “[I]t was clear to me that [the interviewer] was going through the motions,” as she did not ask follow-up questions. Tartakovsky said he was “surprised and dismayed” when he read the ABA’s letter, as he too gave VanDyke a strong recommendation, saying he was an “exceptional lawyer” who would be good for the job. “I told her that I thought he was born to be a judge.”
In addition, the letter seemingly spun Mr. Van Dyke out of context. Guze explains:
[The ABA letter stated:] “Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.” While that sounds worrying, as law professor Josh Blackman noted in the Atlantic, it’s actually a deliberate distortion, a nasty piece of sophistry that uses deceptive language to make a standard response to a standard question sound bad:
“I have watched many confirmation hearings. Often a nominee is asked whether he or she would be fair to a particular group. The nominee invariably replies, ‘I will be fair to everyone.’ It would be improper for a judge to single out any group for particular treatment.”
VanDyke confirmed this interpretation when he was asked about this part of the ABA’s case against him at his confirmation hearing. Holding back tears, he said, “I did not say that. I do not believe that. It is a fundamental belief of mine that all people are created in the image of God, and they should all be treated with dignity and respect.”