Judicial Nominees should only meet with ABA investigators if a court reporter is present

The ABA's report about Lawrence VanDyke included a claim that is, at best, misleading

|The Volokh Conspiracy |

President Trump nominated Lawrence VanDyke to the Ninth Circuit. (Disclosure: I worked with VanDyke on a few cases during his tenure as Nevada Solicitor General.) On the eve of his confirmation hearing, the American Bar Association gave him a "Not Qualified" rating. Among other claims, the letter stated:

Some interviewees raised concerns about whether Mr. 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.

I have watched many confirmation hearings. Often a nominee is asked if 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 a particular treatment.

When I first read the letter, I simply assumed the ABA asked VanDyke the same question: would he be fair to people in the LGBT community? And VanDyke replied that he would be fair to everyone. But that is not what the ABA reported. Instead, the letter parsed a very lawyerly statement that is, at best, misleading. That is, VanDyke "would not say affirmatively" that he would be fair to people in the LGTB community. Would any reasonable person actually think that VanDyke said he would not be fair to LGBT people? Of course not. The "not say affirmatively" line is designed to give a false impression.

During his confirmation hearing, VanDyke emphatically rejected the insinuation in the letter. Please watch the clip. He struggles to hold back his tears:

I agree with my colleague Chris Walker. The ABA should withdraw this letter immediately. The organization should be embarrassed that this smear was even released.

This letter demonstrates, unfortunately, that the ABA cannot be trusted to accurately recount the conversations that transpired. Going forward these interrogations should be treated as hostile depositions. A court reporter and videographer should be present, as well as private retained counsel to push back on unfounded accusations.

Nominees, of course, could refuse to meet with the ABA. But if a not-qualified rating is given, I think it would be far more effective to put these investigations on YouTube so that the world can see how they transpire. This process should no longer be a Black Box. Shine some light on the process.

Update: The ABA Journal provides a statement from William C. Hubbard, chair of the standing committee and a past president of the ABA:

"The American Bar Association's Standing Committee on the Federal Judiciary issued a rating of 'not qualified' to Lawrence VanDyke, a nominee to the United States Court of Appeals for the 9th Circuit.

"The Standing Committee bases its evaluations solely on a review of integrity, professional competence, and judicial temperament. The committee's work is insulated from, and independent of, all other activities of the ABA and its leadership.

"The Standing Committee provides the Senate, the Administration and the public with candid, confidential assessments of the nominee's professional qualifications based on interviews with judges, lawyers, and other professionals who know or who have worked with the nominee. The rating is based on the committee's peer review of the nominee and represents a composite of those interviews from the peer review process.

"The evaluations are narrowly focused, nonpartisan, and structured to assure a fair and impartial process. No nominee gets a 'not qualified' rating without another review.

"During the current administration, the ABA Standing Committee has conducted 264 ratings and issued 'well qualified' or 'qualified' ratings to 255— 97%—of those individuals.

"The ABA believes that it has a responsibility to the Senate, the public, and the profession to conduct evaluations that help assure an eminently qualified judiciary to individuals being considered for lifetime appointments."

The emphasized portion tells me that Hubbard is worried about pressure from the rest of the ABA. He should be. This organization risks losing its credibility by doubling down on this misleading letter.

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  1. ” The ‘not say affirmatively’ line is designed to give a false impression.”

    No it isn’t. It’s designed to, and does, give the correct impression… that the candidate tried to evade the question.

    1. Why on earth would he try to “evade the question”? Do you think he was plans to be, in his own view, unfair to gay people, but doesn’t want to dishonestly answer the question?

      1. A lie to the ABA is hardly perjury.

      2. 12,
        Yes. I think that any judge who is homophobic or who holds any animus towards gay people would be more likely to make unfair rulings against their interest. Any since judges are quite intelligent, any potential nominee would (as the OP notes) lie about this and would falsely claim that he or she would be fair to everyone.
        (Note: I know nothing about this nominee, so I personally have zero opinion about whether this guy is or is not prejudiced . . . I’m just giving the commonsense answer to 12’s question.)

        1. Even if he isn’t holding any animus towards gay people, perhaps he is worried about obtaining confirmation from people who are (or, for state judges who have to be re-elected, worried about losing that re-election campaign).

        2. ” Any since judges are quite intelligent, any potential nominee would (as the OP notes) lie about this and would falsely claim that he or she would be fair to everyone.”

          Well, that’s the point. Either the judge is convinced that he will rule fairly, or he will lie about it. He’s not going to “evade the question.” No judge is going to say, “Yeah, I’m gonna totally fuck over the homos, but I better change the subject so I don’t have to lie if they ask me about it.

          1. His ¨fair to everyone¨ answer is a dodge.

            1. How so? Shouldn’t that be the standard answer?

              1. Evidently, everyone is fair before him, but some people should be more fair than others.

            2. I don’t think an affirmative answer is all you think it is, for instance if he said “I will be fair to LGBTQ litigants, I will also be fair to murderers, rapists and child molesters.”

              I would hope the judge would be “fair” to anyone who who shows up in his court, but he shouldn’t have to list everyone he will be fair to, mainly because there shouldn’t be a list of people he isn’t fair to.

              1. Then of course whatever favored group he left out would be proof of his intolerance.

            3. “His ¨fair to everyone¨ answer is a dodge.”

              If, in fact, that was the answer he gave. The only evidence we have for this is Prof Blackman’s imagination.

          2. “Well, that’s the point. Either the judge is convinced that he will rule fairly, or he will lie about it. He’s not going to “evade the question.””

            That’s how it worked out in your imagination. But here in the real world, he evaded answering the question. He objectively did not do what you want to imagine he would do.

      3. Obviously because he doesn’t want someone in the future to be able to say to him “but you said at your confirmation hearing that you would be fair to us.”

        So make of that what you will.

      4. “Why on earth would he try to “evade the question”?”

        Well, obviously I would know the answer to this question. Obviously, despite having never met the man I know all about his mental quirks.
        The person whose question he evaded should have asked follow-up questions, and if the responses were not satisfactory, should have rated the gentleman as “not qualified”.

        “Do you think he was plans to be, in his own view, unfair to gay people, but doesn’t want to dishonestly answer the question?”

        I’m not the person who interviewed him.

        Let me help you, and anyone interviewing me for a judicial appointment in the future.
        The correct answer to “can you be” or “will you be” fair to (subgroup) is “yes, because I’ll strive to be fair to everyone, as judges should be, at all times.”

        1. “Well, obviously I would know the answer to this question.”

          Well, you pretend to know that he evaded the question, when you obviously don’t know that.

          1. “you pretend to know that he evaded the question”

            Because the people who WERE there reported this.

            1. And they could have recorded the interview, and didn’t, so why should we take their word over Van Dyke’s?

              1. “And they could have recorded the interview, and didn’t”

                A fact you are aware of because… undisclosed psychic abilities?

                1. Because recording devices are ubiquitous, have been for more than a decade now, and especially so for those with higher incomes? I’d expect every single reader of this post to have one in their pocket (or perhaps in a jacket, or on the table). Even many non-smart phones pre-iPhone era had recorders.

                  1. Thank you for your support. Yes, recording devices are cheap and ubiquitous. He’s claiming knowledge, however, that this interview was not recorded, and my question remains… how does he know this?
                    He states it as fact, but doesn’t seem to have any way of learning or knowing that fact, which leaves us with the paranormal.

      5. Because not everyone is a fantastic liar and under a proper interview, people often leak a lot of information.

        For instance, my first thought was that it was odd that Blackman thought we should uncritically accept the word of the nominee over the word of the ABA…. Until I realized he wasn’t even asking that.

        Basically, the ABA letter states they had concerns about his bias towards LGBTQ people. And when they interviewed him he avoided saying he would be fair to LGBTQ people.

        But instead of countering that specific charge he denied that he affirmatively expressed bias. And the followup of the sympathetic senator was again a general “treat everyone with respect” rather than a specific inquiry on LGBQT individuals.

        In other words, they answered the charge of evading the question by again, evading the question.

        1. See, there’s the problem.

          “Can you be fair to LGBTQUERTY people?”
          “I’m going to be fair to EVERYBODY who comes before me.”

          Is not an example of evasion, because LBGTQUERTY people are, trivially, part of “everybody”. If you’re going to be fair to everybody, you don’t need to additionally state that you’re going to be fair to left-handed redheads with BO. That just automatically falls out of being fair to everybody.

          What the ABA is treating as “evasion” is just the candidate’s insistence that fairness to this group and fairness to that group aren’t distinguishable things, they’re just instances of “fairness” that’s owed to everybody. The candidate isn’t rejecting fairness, they’re rejecting intersectionality.

          1. “Is not an example of evasion, because LBGTQUERTY people are, trivially, part of “everybody”.”

            IS an evasion, because, when asked a yes or no question, any answer that isn’t “yes” or “no” (or possibly “could you repeat the question?” is evasive.

            ” If you’re going to be fair to everybody, you don’t need to additionally state that you’re going to be fair to left-handed redheads with BO.”

            If you’re asked specifically about left-handed redheads with BO, and you do, in fact, expect to be fair to everybody, then the correct answer is “yes”, followed by any clarification you’d like to add. If the true answer is “no”, but you’re practicing for a confirmation hearing at which “no” is considered a disqualifying answer, then you try to avoid saying either “yes” or “no”.

            1. Have you stopped beating your wife?

              And remember, by your own standard, any answer other than yes or no is being evasive.

              1. Fine. Instead of 3 responses, we can add a fourth.
                1. Yes
                2. No.
                3. Can you repeat the question.
                and now we add…
                4. Can you clarify your question? I think you accidentally asked a trick question, where there is no correct answer. Did you mean to ask me, “Have you ever beaten your wife?”? Because that is a question I can easily and clearly answer. (The answer is “Absolutely no. Never.” by the way.)

                1. Evading a gotcha question is not the same as evading a real one.

                  1. Exactly, and this question is clearly a gotcha question.

              2. Actually, that’s not his standard.

                He was talking about fair questions, not loaded questions.

                On that topic:

                “Can you be fair to neo-Nazis?”

                Sure, logically I should say:
                “Yes, I can be fair to neo-Nazis”

                But that’s one of those statements where it sounds like I’m approving of neo-Nazis, and I reaaaally don’t want people thinking that.

                So I might say something like, “I’m fair to everyone”. Not contradicting then, but making sure I don’t sound like I’m OK with neo-Nazis. And leaving myself with the wiggle room where I can be biased against neo-Nazis because neo-Nazism is something you should be biased against.

                One might accurately conclude I have a big problem with neo-Nazis.

                1. “But that’s one of those statements where it sounds like I’m approving of neo-Nazis, and I reaaaally don’t want people thinking that.

                  So I might say something like, “I’m fair to everyone””

                  So you answer the question by saying “yes, I can be fair to neo-Nazis. I believe I can be fair to everyone.” If you want to pound it home, you might also add something about how even halfwits deserve a fair day in court.

              3. “Have you stopped beating your wife?”

                I don’t have a wife, Matthew. Your questions is both stupid and pointless, Matthew. I guess I HAVE successfully evaded your gotcha trap, Matthew.

                Now… why do you bring up wife-beating, Matthew? Is there something you need to get off your chest?

                1. Your continued silence speaks volumes, Matthew.

          2. What the ABA is treating as “evasion” is just the candidate’s insistence that fairness to this group and fairness to that group aren’t distinguishable things, they’re just instances of “fairness” that’s owed to everybody.

            Except that the candidate has insisted in the past that gay people and straight people are distinguishable, and that gay marriages should not be treated the same as straight marriages.

            In light of how that view was rejected by the SCOTUS, is it really unfair to get a concrete answer on if his past beliefs reflect his current beliefs regarding whether or not he should treat gays and straights the same?

          3. “Is not an example of evasion, because LBGTQUERTY people are, trivially, part of ‘everybody'”

            Yeah. And you know these are the words he used in the interview because… uh… those psychic abilities again?

            1. And you know the actual question asked, because, again, psychic?

              1. Number of times I’ve claimed to know the actual question asked: 0.

                Number of times you’ve claimed I’ve claimed to know the actual question asked: 1

                Why are these numbers different, Robert?

    2. That statement, at best, is true only from a certain point of view.

      Let me give an example. Buzz Aldrin, when confronted by a man who literally jumped out of the bushes with a bible demanding that he swear that the moon landing was real, punched the conspiracy theorist in the face. You could state (and indeed the conspiracist did state) that Aldrin “refused to confirm the moon landing was real”. While this is technically true, it was deliberately deceptive.

      This is why the oath is “The truth, the WHOLE truth, and nothing but the truth”. An omission is as good as a lie.

      1. “You could state (and indeed the conspiracist did state) that Aldrin ‘refused to confirm the moon landing was real’. While this is technically true, it was deliberately deceptive.”

        I don’t think it’s technically true. It depends on how you interpret the actual response. It can be interpreted either way… it’s a perfectly reasonable response to calling a man a liar to his face, or it’s a perfectly reasonable response to exposing a man’s lies.

    3. You are a terrible person. You have made that clear to everyone in these comments.

      Your parents must be ashamed.

    4. Have you stopped buggering goats?

      1. Our contributor from the goat lobby.

        1. James did not answer the question directly.

          I’d like to report James as unqualified to post on this blog because he evaded the question and would not affirmatively say he doesn’t fuck goats.

          1. That was some major evasion on the question of goat buggery

          2. You also did not answer the question, despite insisting that it’s a valid question to ask. So take your goats and go.

            1. Should he goat-uh-hell?

              (It’s funnier [barely] if you say it quickly, out loud)

              1. I concur with your assessment of the humor potential of your joke. A noble effort, but ultimately not that satisfying.

    5. I’ve long wondered why we permit a trade cartel to determine who judges should be.

      1. Because politicians are too lazy to vet folks themselves, and are happy to let someone else do the work.

        1. And because the ABA wasn’t always partisan about it.

          1. Meh. Even if you want to argue that they’re partisan†, either the Republicans or the Democrats would have found a new group willing to do their dirty work that either wasn’t partisan or conformed to their own biases.

            So it’s not like getting a “trade cartel” out of the process is going to happen, it’s just which “trade cartel” it is.
            ________
            †and seeing how much both Democrat and Republican politicians rely on it, I doubt that.

            1. ” Even if you want to argue that they’re partisan†, either the Republicans or the Democrats would have found a new group willing to do their dirty work that either wasn’t partisan or conformed to their own biases.”

              They do now have Fox News to deliver partisan news to partisans. Yes, it is theoretically possible to create a new Twitter, or a new Facebook, or a new ABA to do what the existing entities do, but in a partisan manner that supports the Republicans. But doing so sould take time, effort, and money.

              Much easier to just whine that whatever ISN’T partisan in a way that supports the Republicans, MUST SO be being partisan in a way that supports the Democrats. Darn their divisive partisan ways! The real amusement is that they keep trying to apply this to objective reality… it isn’t the way they want it, so there must be some cabal of dark forces conspiring against them.

          2. Amusingly, about 60 years ago, Justice Douglas wrote in one of his books that we should ignore ABA judicial nominee ratings because the ABA was too conservative.

  2. I was with you until that “struggled to hold back his tears” bit. (Not your words, I know.) A Trump nominee with a background working for the Trump DoJ shouldn’t be shocked at having the possibility of anti-gay animus come up. When they deny such animus, they should be given the benefit of the doubt, but if they act like they’re shocked or “struggle to hold back their tears” they should be chucked out of the room as unreliable play-actors. That’s the kind of behaviour you’d expect from a politician, but not from a judicial nominee.

    1. To be fair, it sounds like he wasn’t given the benefit of the doubt, but instead was maliciously libeled for political purposes. To not be genuinely either offended or hurt by this, is the kind of behavior you’d expect from a politician, or someone who was guilty as charged.

      1. I have to agree with this. I feel like our innate libertarian cynicism with regards to politicians tends to blind us to the fact that plenty of people who end up politics-adjacent are not in fact politicians.

      2. Sorry, but he does have a record of anti-gay activism.

        When you go out of your way to file amicus briefs in opposing LGBTQ rights there are reasonable grounds to suspect animus.

    2. Exactly right.

      And if they don’t hold or act like they are shocked, it means they probably expected the allegations because they harbor the bias that they are accused of.

      Either way, they’re guilty.

    3. He was barely in the Trump DOJ. He’s been there less than a year and he’s in Environmental and Department of Natural Resources.

      Most people aren’t perfect emotionally and react to things differently. I thought it was silly just like I think it’s silly when my spouse cries about bad things happening to fictional characters in movies. But that doesn’t make the emotions less genuine.

    4. “you’d expect from a politician, but not from a judicial nominee”

      A judicial nominee is a politician. Its a political process, he or she is picked because the appointing president’s people are comfortable with their ideology or at least political affiliation. Politicians vote to confirm or reject.

    5. Was Ed Muskie an “unreliable play-actor” when, outraged by the Manchester News-Leader’s article about his wife, he broke down while speaking in front of the newspaper’s office during his 1972 presidential campaign? Or is it only Republicans who are expected to be Vulcans?

    6. Holding back tears isn’t probative of anything.

      Neither is an an ABA rating.

      That Prof. Blackman finds tears proof the ABA lied is…quite a conclusion.

      1. “That Prof. Blackman finds tears proof the ABA lied is…quite a conclusion.”

        Concluding that Prof. Blackman finds tears proof the ABA lied is…quite a conclusion.

        1. The “not say affirmatively” line is designed to give a false impression.

          During his confirmation hearing, VanDyke emphatically rejected the insinuation in the letter. Please watch the clip. He struggles to hold back his tears:

          I’m being generous assuming that counts as evidence. Other than that it’s just parsing, supposition, and spite.

      2. It shows humanity. How many Democrats remember what humanity is like?

        1. How many Republicans can even perceive it in others?

          Which flavor of politics was it that decided that putting children in cages was the prudent and proper option, again? Which one decided that torture was an American way to operate?

          1. How many more decades do you intend to use that as your excuse for being evil and cheerleading for your contemporaries when they do evil?

            I hope many others haven’t become as irreversibly alienated from their humanity as it seems like you have.

    7. Yet Trump has a much better record of advocating for gay rights than either Bill and Hillary Clinton or Obama. For instance commenting on Clinton’s DADT policy: “In 1999, while Democrats defended DADT, Trump opined that gays and lesbians serving openly was “not something that would disturb me.”

      And “In 2000, Trump proposed an amendment of civil rights law to ban discrimination on the basis of sexual orientation, which would have rendered moot the employment discrimination case currently before the Supreme Court.”

      1. “Yet Trump has a much better record of advocating for gay rights than either Bill and Hillary Clinton or Obama. ”

        Yet for some reason, you can’t seem to provide an example of Trump actually advocating for gay rights. (Using a definition of “advocating” that requires actually doing something, rather than just talk.)

        1. “Yet for some reason, you can’t seem to provide an example of Trump actually advocating for gay rights. (Using a definition of “advocating” that requires actually doing something, rather than just talk.)”

          So, if a person does not actually take actions to support a political position, they must be against it? And if the issue is something that you care about, they must therefore be evil?

          You have a very twisted sense of “fairness”, and no sense of logic whatsoever. Very progressive, very totalitarian.

          1. Given the judges he’s pushing, and the party he heads, it’s game-playing facetiousness to argue Trump’s our most pro-gay President.

          2. “So, if a person does not actually take actions to support a political position, they must be against it?”

            That’s an odd position for you to take, but if it works for you, I won’t tell you it’s wrong, just how silly it is.

            ” if the issue is something that you care about, they must therefore be evil?”

            No, people who disagree with me are wrong, but not necessarily evil. Please try to keep this straight in future.

        2. James, do you know what advocate means. Break the word down. The “vocate” part means to speak, not to do. Don’t refute someone by redefining a word they used when they were using the word correctly in the first place.

        3. And James, answer the question from above: Yes or no (only), have you stopped beating your wife?

          1. To clarify, you want to know if a single man has stopped beating his wife? Is that your question?

    8. Should everyone who appears in front of a Congressional committee when they have a real interest in a particular outcome, who struggles to hold back tears, be chucked for being an actor? And actors just auto-chucked?

      Sounds like a plan.

    9. Yeah, I know what you mean. My own reaction was, “This drove you to tears? Maybe you should look for a less stressful job?”

    10. Why a Trump nominee specifically? Trump is the only US President to date that supported gay marriage throughout his campaign, so if anything the default assumption should be the opposite.

      1. Trump is the only US President to date that supported gay marriage throughout his campaign,

        One of several dozen that he reversed, in office.

      2. ” Trump is the only US President to date that supported gay marriage throughout his campaign”

        He’s also the only US President who ran his campaign after the issue was settled in the gays’ favor.

  3. The bigger question is why anyone should care what the ABA thinks in the first place?

    1. Well, they’re a professional association of lawyers, and laypeople foolishly assume that lawyers would know best who should be a judge.

      1. They’re a professional association of first-year law school graduates nearly all of whom drop their membership once the free year runs out. The ABA has been a joke for years.

      2. Are you a member of the ABA?

          1. If laypeople care what lawyers think, lawyers think the ABA is not a serious organization. Including the ones who join it.

            1. AND OBAMA IS A KENYAN!

      3. “Well, they’re a professional association of lawyers”

        They’re a partisan association of a vastly more limited selection of lawyers than most people think.

        1. OK. Don’t like their organization? Put your own together and then do whatever you want.

    2. The bigger question is why anyone should care what the ABA thinks in the first place?

      An even bigger question is why so many seem to believe their ratings are dispositive. I’d obviously take them over the Federalist Society, which is blatantly partisan.

  4. Sounds terrible on behalf of the ABA. If you’re going to insinuate that a judicial nominee claimed that he would be unfair to a group of people, you need to clearly articulate the basis for your claim.

    1. This seems to be a fair point.

    2. ” If you’re going to insinuate that a judicial nominee claimed that he would be unfair to a group of people, you need to clearly articulate the basis for your claim.”

      What you have inferred may not be what was implied.

      1. The purpose of weasel words is to mislead while maintaining deniability if called on it.

        1. Agreed on this point. We just disagree on who is guilty of using them in this instance.

  5. I’m going to go out on a limb and guess that they’re not trying to find out if he’d be fair to, say, criminal suspects who claim anti-gay bias at their trial.

    Instead, what they’re probably reaching for is some kind of assurance that the nominee will be open to inventing new rights for gay litigants such as bathroom usage, compulsory cakes and the like.

    If I’m wrong, I’m wrong, it won’t be the first time anyone was wrong on the Internet.

    1. “new rights for gay litigants such as bathroom usage”

      You’re of the opinion that gay litigants don’t have a right to use a bathroom?

      1. As I understand it there are bathrooms in the courthouse which they have the right to use.

        1. Is this one of the new rights for gay litigants you spoke of?

          1. I answered the question just as you phrased it.

            1. Speaking of “evasion”…

              You claimed that judges were inventing new rights like using bathrooms for gay litigants. This is news to me… I was under the impression that gay people are allowed to use bathrooms just like straight people are. But you say this is new.

              1. You ought to have realized that I was speaking of the “trans rights” movement. I’m sorry you weren’t able to realize this. 🙂

                1. (Observe I am assuming that you had genuinely forgotten about the trans rights movement)

                  1. If you are chafing at Mr. Pollock’s comments, perhaps you should apply some emolument.

                    1. Great, now you come along and steal my emolument joke.

                      Let me try to summarize my reactions in song:

                      https://www.youtube.com/watch?v=MA_v0YMPN9c

                  2. “(Observe I am assuming that you had genuinely forgotten about the trans rights movement)”

                    Observe I am mocking you for not knowing the difference between G and T.

                    1. You knew what I meant, you simply wanted to enact your Walter Mitty fantasies about being a ruthless cross-examiner.

                    2. Observe me continuing to mock you for doubling down, and trying to make excuses for not knowing the difference between two very different things.

                    3. Everyone knows G and T go together – everyone except you, apparently.

                      https://www.urbandictionary.com/define.php?term=G%26T

                    4. Squirm about all you want, Eddy. It amuses me to watch you try to excuse your mistake(s).

                    5. I don’t squirm for the likes of you, and my choice of phrasing was not because I couldn’t tell the difference among various alphabet-soup characters as you assert – but error has become second nature to you.

                    6. You can neither deny, nor do you wish to defend, the fact that the ABA is using a judge’s views on the sacred constitutional right of bathroom access as a test of fairness to the Alphabet-American community.

                      Instead, you go into Walter Mitty mode, fantasizing you’re Perry Mason and thinking that by challenging my shorthand usage for the Alphabet-Americans, you can distract attention from what’s really going on.

  6. I don’t think this will work. Most of the work is the contacting and screening of references and legal community members. The ABA will want to allow anonymity for these people in order to get honest answers. These interviews, and how they are filtered to the committee, is going to be where bias is most likely to leak into the process. Not the committee’s interview of the nominee.

    (P.S. sorry to the first two commenters for accidentally flagging your comments. Apparently you can’t unclick flag)

  7. Nominees should refuse to meet with the ABA. Suggested statement regarding this: “The ABA is just another partisan group. I have no interest in meeting with any of them; my attention is focused on the Senate whose approval of my nomination is what matters.”

    1. Exactly. Its like going to the DNC for an interview.

      1. That’s odd. Just a few comments above you said that judges were politicians just like any other. If so, why shouldn’t they meet with partisan groups?

        1. A judicial nominee is a political figure, who is practicing politics. Without participation in politics, he does not get appointed or confirmed. Also, of course, many other judges are straight up elected.

          Referring to someone that participates in politics, including campaigning to get votes, as a ‘politician’ seems to meet with the definition and common usage.

          However, judges are not politicians “like any other” as you said. Once they have been voted into their office, they have a responsibility to be impartial and unbiased. Take a look at the Code of Conduct, and notice how much it differs from what a Congressman or Cabinet member is expected to comply with.

        2. Meet with partisan groups, sure. Meet with partisan groups pretending to be neutral (at best) or planning a setup at worst, no.

  8. That is, VanDyke “would not say affirmatively” that he would be fair to people in the LGTB community.

    That’s not what the ABA claims though. They said he “would not say affirmatively that he would be fair to any litigant before him”. If in fact he said the expected “I will be fair to everyone”, then he did say affirmatively that he would be fair to any litigant before him, and the ABA’s statement is outright false rather than merely misleading.

    1. Not quite. What the ABA letter says is :

      Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.

      We don’t have the actual question and answer, but the “notably members of the LGBTQ community” strongly implies that LGBTQ was specifically mentioned in the question.

      Thus, for example :

      Q : “Will you be fair to everybody, including members of the LGBTQ community ?”

      A : “Of course I will be fair to everybody. That’s an absolute requirement in a judge.”

      Strictly and literally, that’s consistent with the ABA’s letter because although he says he’ll be fair to everybody, he fails to note the LGBTQ community.

      There might be (but only might be) more light and less heat if we had the actual question and answer.

      Which underlines Blackman’s point – you’re a mug to sit for an important interview with a hostile party without recording it.

  9. It would be nice to see the question asked of VanDyke and how he answered it, rather than relying on paraphrases which don’t appear to agree with each other. At any rate, some of the ABA’s concerns were also raised when VanDyke was considered for the Montana Supreme Court so it would seem that his position on LGBT matters is not the only red flag here. I’d be concerned about his belief in Creationism and his interest in seeing it taught in schools, concerned enough to disqualify him but that’s just me.

    1. Religious tests for holding an office are explicitly unconstitutional, of course.

      1. Creationism isn’t a religion.

        1. Sarcastro : Creationism isn’t a religion.

          No, it’s a religious belief. The belief that Jesus rose from the dead is not a religion either, it’s a religious belief.

          Disqualifying a judicial candidate because of a religious belief is just as much a “religious test” as disqualifing a judge for adhering to a particular religion.

          1. That’s not what creationists say when they want it taught in school.

            The religious test clause doesn’t work like that. And good thing, otherwise it would require everyone who wanted to become a judge if they just associated their beliefs with their faith.

          2. “Disqualifying a judicial candidate because of a religious belief is just as much a “religious test” as disqualifing a judge for adhering to a particular religion.”

            If the religious belief prevents them from carrying out the job, then it’s disqualifying. If a judge shows up and starts handing out death sentences because they believe death is the appropriate punishment for non-believers, they can (and should) be removed, and someone who says they’re going to do this during confirmation should not be confirmed.

      2. Intelligent design is, according to its adherents, not a religion, but a scientific theory, sort of like the phlogiston theory, or arguments that the moon is made of green cheese.

        No one who believes it has enough respect for fact to be a judge.

        1. I have a narrow disagreement with that, with the understanding that neither of us knows everyone who believes in some variation of that theory.

          Just because someone believes a facially plausible explanation for how evolution works (Or any other process) because that’s the only explanation they’ve ever heard in detail, and it’s not related to a field they’re actively involved in should not be ruled out has having too little respect for facts.

          We have too many false, incomplete, or approximate scientific theories that are widely believed to act otherwise, or everyone would be ruled out.

          Newtonian mechanics are wrong, but so close to getting the right answer at low fractions of C that it’s useful for almost anything other than dealing with mechanics across a gravity gradient. It’s wrong – literally never right outside of thought experiments, but we still teach it because it’s useful.

          Darwinian evolution is wrong, the actual mechanisms he describes are simply incorrect. But it’s a good introductory idea both to how evolution really works (at least the parts we understand) and to the scientific method of iterations that we still teach (a variant of) it.

          CO2 causes climate change is so wildly wrong as to be a literal joke, but it’s used by the zealous as if it were true, and by the competent to summarize the real processes that drive climactic changes – each of which requires significant expertise is seemingly unrelated fields, such a physics, geology, hydrology, chemistry, and numerous others.

          Given an hour with anyone on this forum I could identify some theory each person believes is true that’s both well understood and where their theory had been positively disproven, and I expect any other polymaths here to be able to do the same to me. None of that should exclude any of you for your lack of care about facts.

          Setting that aside, the underpinnings of Intelligent Design aren’t even wrong, because they’re not scientific. ID (in the non-idiotic version) just expresses that there’s some level of complexity we don’t understand yet, so it must have been designed. But since literally no test could ever prove that wrong, it’s not science.

          1. “CO2 causes climate change is so wildly wrong as to be a literal joke”

            Tell that to the people who live on the surface of Venus.

      3. Bigotry accompanied by a claim of superstition is still bigotry.

        A nonsensical conclusion — moon made of green cheese, Biblical creationism, storks delivering babies, few-thousand-year-old Earth, evolution a Satanic plot, tooth fairy — is not rescued by a claim that religion compels the daft conclusion.

      4. “Doesn’t advocate for teaching religious dogma as science fact” isn’t a religious test for office.

  10. I would think that the bar association, of all groups, would be willing to put aside their politics to fairly ascertain judges. This clear misstatement, which at best is a “Jedi Truth” and would be counted as perjury by any reasonable judge, casts doubt onto all of their recommendations.

    1. I think the very term “American Bar Association” is potentially misleading, because it could lead to confusion with the state bar associations. The latter are regulatory/disciplinary bodies for lawyers, and lawyers must belong.

      The ABA is a voluntary membership association. It can make recommendations (aka lobbying) but it cannot make binding rules or discipline lawyers.

      There’s an informal tradition of relying on their supposed expertise in order to rate potential judges, but that tradition isn’t binding and the President and Senate can ignore their recommendations.

      1. Nobody said otherwise. So thanks for confirming the hysteria in this “report.”

        1. Uh, you’re welcome, I guess.

          1. whoooooooooooooooooooooosh

          1. Nobody said otherwise. So thanks for confirming the hysteria in this “report.”

  11. Sorry. No more blubbering Kavanaughs please. Let’s see some judicial nominees with the spine to face down criticism without losing dignity.

    1. Apparently getting red faced and crying and emotional and throwing accusations is now the standard for Republican judicial nominees. At least the male ones.

      At least this one didn’t see fit to proclaim to the world that “I like beer.”

      1. “You all need to cooperate better while we play our little games of slandering you as a gang rapist and so on in front of your children.”

        1. Do you think the people you are talking to have the humanity to grasp the point you are making?

          More and more of them seem to have lost that, if they ever had it to begin with.

        2. The argument is not that the nominee should cooperate better, but that he should resist better—with more class, and a less evident sense of frustrated entitlement.

          1. No. Well, maybe yes, in the sense that I would rather see a revival of the practice of dueling, as opposed to crying.

            1. You’re welcome to bring it back. Be aware that, depending on which state you’re in, it may disqualify you for a judicial nomination.

          2. The argument is that, after the nominee does something, you can make up a new standard for behavior that the nominee fell short of. Works for any nominee and any behavior.

    2. “How dare a guy accused of raping girls in school and running trains on them get offended at the accusations!” — Stephen Lathrop

  12. Instead, the letter parsed a very lawyerly statement that is, at best, misleading. That is, VanDyke “would not say affirmatively” that he would be fair to people in the LGTB community.

    Huh? What lawyerly statement did the ABA parse? Is there a longer report somewhere.

    Note that this issue was far from the only concern expressed by the 60 people the ABA interviewed. There were concerns about VanDyke’s work habits, temperament, open-mindedness, and integrity.

    Justin Walker, Sarah Pitlyk, now this guy.

    When is Adler going to come around and tell us how wonderful these judges are? Or is he too embarrassed about Barr?

    1. “What lawyerly statement did the ABA parse?”

      What does “…would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community,” mean? Do you think the told them that the would be unfair to gay people? If he did, they should come out and say that. If he didn’t, they should explain what he said.

      1. Blackman lied about the very words you cited.

        1. You misspelled “paraphrase”.

          1. ANOTHER failure by you! (sneer)

      2. “What does “…would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community,” mean?”

        It means they asked him if he would be fair to any litigant before him, and he didn’t answer the question.

        1. Actually, if we want to be technical, the committee may not have even asked the question “Will you be fair to these people?”

          1. Actually, if we want to be technical, you’re incorrect.They said the candidate WOULD NOT say, not that he DID NOT say. The difference between these two is whether or not he was prompted to say he’d be fair to the LGBT litigants.

            1. You’re assuming he was prompted. You have no clear evidence of this, beyond your assumption.

              1. Yeah, I have nothing except for my assumption, and what words mean. Other than that… nothing.

      3. Um. To parse a statement means to interpret it.

        I’m still looking for the statement by VanDyke that the ABA parsed.

        1. Which is why a court reported or video transcript is needed. The full interview wasn’t recorded.

          1. Nah. Partisans who support the candidate will claim it was edited, or that the questions were “gotcha” questions, or come up with some other excuse for why the video doesn’t show what the critics of the candidate say it does.

            1. Of course those who oppose the candidate will do exactly the same thing.

              1. In this case, it’s the supporters of the candidate who are claiming that the reporting is inaccurate.

          2. OK. But then where does Blackman get off making assumptions about the actual question and answer?

            He’s claiming the exchange was distorted in the ABA report. How does he know? Was VanDyke asked about the actual exchange during the hearing?

            1. 1. Van Dyke (presumably under oath before Congress) denied the allegation.

              2. The wording was odd in the letter. “would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community”

              You really need to parse point 2 here. The letter didn’t say that Van Dyke said “he wouldn’t be fair to any litigant before him”. It said “he would not say affirmatively”…. Which is really odd. And suggestive of oddities.

              1. It means they asked him the question, and he evaded or didn’t answer it. What you infer from that is up to you.

    2. What is wrong with Justin Walker? Certainly not lacking for legal knowledge. Quit the snark

      1. You like judges who have never actually practiced law?

        1. Yes. Muchly. A few folk on the bench who understand law, but are not members of the guild, are a welcome dose of diversity to the collective judicial mind. I take your point that we probably don’t want every judge to be a non practitioner, but a sprinkling is fine.

          They may start out a little shaky on procedures. On the other hand they may have heard of things like the 1st Amendment (which seems a wholly novel concept to some judges), and may be less willing to put up with prosecutorial abuse. Having an unending stream of former prosecutors on the bench is not necessarily a good thing.

          1. Having an unending stream of former prosecutors on the bench is not necessarily a good thing.

            I agree with that.

          2. The state bar associations usually appoint a non-lawyer to their directing boards. Not enough to override the actual lawyers, of course.

  13. The ABA is going down the same path as what were formerly main stream newspapers and journalists. Maybe it’s time for a difference association for lawyers.

    1. The right going down the usual path of delegitimizing organizations it disagrees with.

      Speak to the substance, not the messenger. Blackman did, though I don’t think he did so very well – too much drama and supposition.

      1. They delegitimize themselves.

        Should judge nominees take a loyalty oath to specific interest groups? What do you think?

        1. I think your question is melodramatic and off-topic.

          1. By the ABA standard, your refusal to answer the question implies that you are evil.

            1. That’s not the ABA standard, that’s the speculative standard that Prof. Blackman wished into existence with no more evidence than some very hard parsing.

              From all I can tell, they’re a lobbying organization, so all they say should be taken as such. If they don’t want to bring named sources, I’ll note that as well. But this post goes a lot farther in spite and paranoia than it needs to.

        2. “Should judge nominees take a loyalty oath to specific interest groups? What do you think?”

          If questioned on their impartiality, fairly OR unfairly, they should assure members of specific interest groups that they’ll get an impartial hearing. Ideally, they should mean it.

          1. And if they name thousands of groups and leave one out, are they saying that they will be unfair to that one group?

            That’s why “fair to EVERYBODY works”.

            1. “And if they name thousands of groups nd leave one out, are they saying that they will be unfair to that one group?”

              No. Are you?

              “That’s why “fair to EVERYBODY works”.”

              But “yes, I will be fair to members of (x) because I’ll be fair to everybody” is an actual correct answer. Regardless of which (x) you were asked about.

              Unless there actually IS a reason to avoid saying “yes” (such as being under oath, and the true answer being “no”).

      2. “Speak to the substance, not the messenger.”

        OK, the substance is that a messenger says that some anonymous people have said bad things about VanDyke, and that in some unknown context he “would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”

        1. As usual, your head is a cooler one but largely by default.
          If you want to say no one should listen to the ABA because their evidence is insufficient, that’s been the thesis on the right for about 3 decades now.
          (Though I do find it a bit wonky that the candidate didn’t really go into his side of events if the ABA was being disingenuous. Tears and protestations aren’t quite the same.)

          But even the OP is mostly railing against the existence of the ABA, calling them liars, etc. That’s just partisan spite.

          1. Might the reason he didn’t go into detail be that there was no point during the interview where any such topic was discussed? Or that he has no memory of it?

            It always possible (see James Pollack) that he was asked the specific question and declined to answer “I’ll be fair to everyone” because not only will he not be fair under your or my view of things, but he wouldn’t be fair under his own view of the world. Not only does he think (group) is bad, but he intends on being unfair to them beyond their badness, so he had to avoid the answer rather than commit perjury.

            I really do wonder how people come to those conclusions – not only does their opponent wrongthink, but they know they’re wrong and do it anyway!

            1. Um, that topic was discussed – it’s in the linked video. The one where the tears convince Prof. Blackman of sincerity, despite the lack of details.

              As to the rest of your speculation about the full testimony and my own view on who can be fair, I leave you to your stories.

      3. “Speak to the substance, not the messenger. Blackman did”

        Well, he started out by imagining what he thought the candidate replied, and then proceeded as if his imagination was the only possible choice the candidate could have chosen.

  14. Reading the ABA letter, this report is shamefully dishonest, as was the judge’s sobbing.

    Josh Blackman’s lie

    That is, VanDyke “would not say affirmatively” that he would be fair to people in the LGTB community.

    The truth (ABA letter) (emphasis added)

    Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.

    Blackman also implies, falsely, that this was the main (or only ) reason cited for the “not qualified” conclusion … which was actually based on interviews with 60 lawyers, judges and an associate, plus 600 pages of emails, articles and opinions. (Read the damn letter!)

    And his colleague, Chris Walker’s tweet, has no relationship to Walker’s retweet of Zoe Tillman. (And who in hell is Tillman anyhow???)

    A very low mark for Volokh Conspiracy here.

    1. “Notably members of the LGBTQ community”.

      The very fact that the phrase appears in the ABA statement indicates the the question the ABA asked did NOT stop at “any litigant before him” like you claim. If the question was asked as you claim, then the ABA could not honestly add the “notably…” section.

      Either the ABA is lying about what questions they asked him, or they are lying about his responses.
      You, on the other hand, are just lying about the post.

      1. “Notably members of the LGBTQ community”.

        The very fact that the phrase appears in the ABA statement indicates the the question the ABA asked did NOT stop at “any litigant before him” like you claim.

        Liar.
        And anti-rational.

        You, on the other hand, are just lying about the post.

        I quoted it directly.
        And you’re FULL OF SHIT that I said “stopped at” anything.
        I did the exact opposite, chump!

        1. All you two are doing is pointing out the necessity or a court reporter, or, better yet, video.

          1. Only for illiterate Trumpsters, who are so easily lied to. And other authoritarian losers.

            If you couldn’t spot the obvious bullshit by Blackman here, then even a video would have you ….. “hearing” whatever you want to “hear.”

            1. We spotted the obvious bullshit.

              It’s from you, fucko.

            2. “And other authoritarian losers.”

              Arthur, is that you?

        2. You make false claims about Blackman’s accurate statement, by claiming the ABA letter’s text meant something than what it did. You did that by highlighting a limited portion of the response, and treating it as if it was the entire response.

          This is a standard deception – pretend that only the piece you select is the entire thing, and ignore the rest especially when it directly contradicts your claims.

          You knowingly made false statements. Blackman did not.
          You lied. Blackman did not.

      2. “The very fact that the phrase appears in the ABA statement indicates the the question the ABA asked did NOT stop at “any litigant before him” like you claim.”

        Not necessarily. They might have asked a series of questions, such as whether he would rule fairly for black litigants, for Hispanic litigants, for poor litigants, for LGBTQ litigants, and he answered all but the last one by saying “yes”.

        1. So you’re saying it may have gone something like this:

          Q. Would you be fair to litigants before you. A. Yes, I’d be fair to all litigants.
          Q. Would you be fair to black litigants? A. Yes
          Q. Hispanic litigants? A. Yes, of course.
          Q. Poor litigants. A. Yeah, I just said I’d be fair to everyone.
          Q. LGBTQ litigants. A. [Annoyed] I just said I would be fair to all litigants.

          ABA: Unqualified, he didn’t affirmatively say he’d be fair to LGBTQ litigants.

          Rousing endorsement for the ABA there.

          1. Really, Dave. This guy is in the 3% of applicants where the ABA makes an Unqualified determination and you find that to be a mark against the ABA’s credibility. You could have taken a different approach. “Wow, the ABA almost *never* finds a Trump nominee Unqualified, but did in this case. And their investigation covered well over 50 interviews. Maybe I should re-think my own preconceived nothing that Trump nominates only highly qualified people and I should reconsider my support for this one person?”

            That your reaction to the ABA’s findings is to blindly attack the messenger says far more about you than it says about the ABA.

            1. I think it’s that the (non-stupid) objection is that these findings tend to have a specific political valence.

              The ABA didn’t just say “we’ve talked to people he works with who say he’s disorganized and likely to miss key factual and legal claims, for this reason we find him not-qualified.” Instead, they also added, “and he’s a bigot, but we’re not going to prove any of that, just smear him forever.”

              If the smear jobs were bidirectional, even if on different topics, things would (hopefully) be different. When, for example, was the last time the ABA said, “we talked to his law school professors who told us that he believes that all power was delegated to the Congress, so that by definition any law they pass is necessarily constitutional, and the amendments are just advice to the Congress on what kinds of laws they ought to write, not a restriction on them.” Hint: that’s the nasty version of living constitutionalism (emphasis on nasty).

              1. Objectively, he is a bigot. That’s not a smear. It’s why the people who are similarly bigoted support him.
                The question is whether he’s TOO bigoted to be fair to all potential litigants. If so, that’s disqualifying. It’s not the only possible disqualifying factor that can apply to a judicial candidate, but it is disqualifying.

          2. “Q. Would you be fair to litigants before you. A. Yes, I’d be fair to all litigants.
            Q. Would you be fair to black litigants? A. Yes
            Q. Hispanic litigants? A. Yes, of course.
            Q. Poor litigants. A. Yeah, I just said I’d be fair to everyone.
            Q. LGBTQ litigants. A. [Annoyed] I just said I would be fair to all litigants.

            ABA: Unqualified, he didn’t affirmatively say he’d be fair to LGBTQ litigants.”

            Yes, I’m sure that’s a full and complete transcript.

        2. Unless their list covered all possible categories of possible litigants, their statement wouldn’t have covered “all possible litigants” like they claim.

          Maybe they only ask questions about certain groups they feel might be discriminated against. But in that cause, the statement they made would be an inaccurate description of VanDyke’s answers.

          And, as David Bremer has shown, even a positive answer with multiple questions can be twisted to produce a “not positively affirmed” statement for at least one group, as long as you keep asking.

          1. “Unless their list covered all possible categories of possible litigants, their statement wouldn’t have covered “all possible litigants” like they claim.”

            No, they could have asked “can you say you’ll be fair to all litigants?”, or flipped it to “is there any group of potential litigants that might have to worry about appearing in your court?” somewhere in the list, and the candidate didn’t answer it, however it was phrased. You’re not trying very hard, are you? I mean, trying to pick at the questions the candidate was asked, not knowing any of the questions he was asked, seems rather foolish.

    2. “Blackman also implies, falsely, that this was the main (or only ) reason cited for the “not qualified” conclusion…”

      What Blackman says, “Among other claims, the letter stated…”

      So yeah, I guess Backman implies that this was the main (or only) reason, except for the other ones.

      1. If you think that “among other claims” absolves Josh from any charge of dishonesty, I might invite you to read the other comments here, most of which pile on to the insinuation that the ABA graded VanDyke the way it did primarily because of the way he responded (or didn’t respond) to this question.

        Josh set them up, and they took the bait. Play your plausible-deniability game elsewhere.

        1. “pile on to the insinuation that the ABA graded VanDyke the way it did primarily because of the way he responded (or didn’t respond) to this question.”

          If VanDyke really suggested that he would be unfair to gay litigants in his court, that better have been the primary reason they graded him the way they did.

          1. TAKES BOTH SIDES OF THE ISSUE … IN THE SAME THREAD!!!

            If VanDyke really suggested that he would be unfair to gay litigants in his court, that better have been the primary reason they graded him the way they did.

            1) THAT’S NOT WHAT THEY SAID!
            2) YOU’VE REPEATED THE SAME BULLSHIT AS BLACKMAN … THAT THE LGBTQ ISSUE WAS THE PRIMARY FACTOR IN THEIR “UNQUALIFIED”

            … AND …. HAHAHAHAHA

            3) REVERSED YOURSELF IN THE SAME SUBTHREAD!!!
            https://reason.com/2019/10/30/judicial-nominees-should-only-meet-with-aba-investigators-if-a-court-reporter-is-present/#comment-7991057

          2. If VanDyke really suggested that he would be unfair to gay litigants in his court, that better have been the primary reason they graded him the way they did.

            So you’re saying that, assuming that Josh’s mischaracterization of the ABA’s conclusion is accurate, it would justify Josh’s focus on the way the LGBTQ question was raised, because in that case it ought to have driven the failing grade, even if it didn’t.

            Have I got that pretzel-twist right?

            1. Yes! Your label is spot on!

              Such twists are the rule on the tribal right. And the tribal left.

              Left – Right = Zero

        2. But it is common, proper, and also often useful to say something to the effect: “So and so makes points A, B, and C. I don’t have anything to say (or don’t know anything about, don’t have any special insights about, life is too short [whatever]) about A and B, but I am interested in topic C and would like to address this. I also don’t find it surprising that comments would then focus on C. My only point here is this process one. I don’t have anything to say (etc. see parenthetical above) about the nominee or the ABA.

          1. But it is common, proper, and also often useful…

            To be forthright about the narrowness of one’s objection and to properly contextualize the point they’re making? Sure. Is that what Josh is doing? No.

      2. What Blackman says, “Among other claims, the letter stated…”

        FAIL.

        All his CONCLUSIONS are based on the one point, which he lied about.

        You also screwed up on what “implies” means — by extracting a sub-phrase from the context.

        Anything else?

      3. I can’t believe you guys keep reading and responding to his comments.

        1. Good point. Call it self-defense, against a wacko who’s stalking the page. Combined with ridicule.

  15. The ABA does not, and should not be implied to, represent all lawyers in the country. Nor does the ABA represent an unbiased view. A miniority of lawyer’s are members, an even smaller minority are active, and an even smaller minority take part in these evaluations. To suggest that a judge is fit (or not fit) for judicial office based on the opinion of a few – often politically motivated – lawyers is ridiculous.

    Further, the designation “LGBT community” (much like the ABA) refers to a political brand that many homosexuals have no interest in supporting and does not represent the views of all those they claim to represent.

    1. I was with you till you got odd about LGBT community. Which is pretty clearly meaning all the non-heteroes out there with rights to litigate, not whatever political subset you want to complain about.

      1. You appear to fail to recognize that “The LGBT Community” is referenced in a particular manner, not “homosexual litigants,” or even “LGBT litigants.” The ABA knows this political shorthand and the deliberate vagueness with which it is used.

        1. I think you have the context wrong, and it’s referring to the broader cohort not the more narrow. It’s a pretty common euphemism, even if not as crisp as one might like. See Baltimore community; the athletic community; the research community, etc.

          I mean, it’s a pretty weird question ‘would you be fair to liberal activist LGBT’s?’
          It’s a pretty normal question ‘would you be fair to litigants who are LGBT’

        2. ” The ABA knows this political shorthand and the deliberate vagueness with which it is used.”

          And yet, it’s not a tricky question.

          The correct (judicial nominee) answer to the question “can you be fair to (x)?” is “yes”, for all values of x.

  16. Adapts all far leftwing positions as basic nonpartisan qualifications..

    Claims to not take politics into account.

    1. Amos,
      Given that the ABA has approved of NINETY-SEVEN percent of Trump’s nominees; I guess you are saying that Trump has been nominating 97% far-left judges. Right? (If not, you win “Idiotic post of the day” awards.). A grand total of 9 nominees have been voted as Not Qualified during Trump’s term…about half were so awful that the vote was unanimous.

      Here’s a helpful link, since you were unwilling to research your ridiculous claim:
      https://ballotpedia.org/ABA_ratings_during_the_Trump_administration

        1. Snickers quietly…

      1. VERY well-played, santamonica811
        I LOVE to see blowhards called out so adeptly!

        1. TheLibertyTruthTeller, where exactly was I shown to be factually wrong? I never said the ABA pulled their publicity stunts on every single Trump nominee. Obviously they wouldn’t do that even if they wanted to since it would make them look even dumber than they already do. Its just a madeup argument and a few people clapping like seals.

          1. TheLibertyTruthTeller, where exactly was I shown to be factually wrong?

            whooooooooooooooooooooooooooooooooooooosh.
            Also a typical right-wing psycho (as wacky as the left-wing ones!)

            I never said the ABA pulled their publicity stunts on every single Trump nominee.

            LAME (snort)

            Adapts all far leftwing positions as basic nonpartisan qualifications..

            Are you Donald J Trump? His bullshit coach?

            NOW the right-wing “genius: says they’re ALL “publicity stunts.”
            And he says it IN PUBLIC!!!!

            Its just a madeup argument and a few people clapping like seals.

            Your tribal partisan bigotry is raging out of control.
            STILL!

            look even dumber than they already do

            And irony!!!

            1. Go throw yourself into a running woodchipper feet first, sack of shit.

      2. Republicans have let the vast majority of Democratic nominated Supreme Court justices through without the tactics they used for Merrick Garland. Therefore the treatment of Merrick Garland was 100% justified. Republicans have not raised major allegations of child molestation for the vast majority of Democratic Presidential candidates, therefore the allegation that Hillary Clinton funneled money from child prostitutes through a pizza parlor is 100% true.

        1. EVEN CRAZIER THAN I IMAGINED!!

        2. Well, that’s some new goal posts. Rare to see new goal posts that are diametrically opposed to the old ones.

          From arguing irredeemable, constant bias to scorn for those who argue about more than this one event.

      3. I think that given the stellar background from this particular appointee, there needs to be a better judgement with better support from the ABA for any “Not qualified” response.

        1. Lazy, arrogant, lacks judicial temprament, DOES NOT KNOW HOW TO NAVIGATE COURTROOM PROCESSES.

          Jesus, Armchair. How many disqualifying characteristics do you need to stop supporting one candidate?!?!!! I mean, if Trump ditched this nominee, it’s not like he’d be replaced with a liberal or a moderate. The Heritage Foundation would give Trump one additional name from their list and Trump would nominate her/him. That person would not get an Unqualified rating, would be confirmed easily by the Rep. senate, and all would be good in Trump world and in conservative world. The only precedent would be a-holes and incompetent lawyers would be less likely to accept nominations in the future. A feature, and not a bug, IMO.

          1. Oy… Santamonica, really think about it for a minute.

            You’re telling me a guy who’s been an solicitor general for two separate states and an assistant solicitor general for a third state doesn’t “know how to navigate courtroom processes”? Seriously? How realistic is that? Do you really think that’s true?

            Personally, I’m going to need some evidence, some hard case examples of that type of accusation being true, beyond an anonymous interview, from who knows who. Maybe some rando who has a grudge. Several others have come out online saying he’s basically a great, wonderful, awesome lawyer.

            1. “You’re telling me a guy who’s been an solicitor general for two separate states and an assistant solicitor general for a third state doesn’t “know how to navigate courtroom processes”? Seriously? How realistic is that? Do you really think that’s true?”

              It’s certainly possible. Is the notion that political appointees might not be very good at the actual job they’ve been appointed to a foreign one for you? If so, you haven’t been paying attention these last few years… Mr. Trump has rather a significant habit of selecting people to political jobs whose sole qualification is buttocks-osculation.

      4. OR….

        The ABA has given unqualified assessments to 500% more of Trump’s nominees, when compared to Obama’s nominees.

        1. One possibility is that the ABA is biased in assessing judicial nominees.
          The other possibility is that Trump is as crappy at selecting judicial nominees as he as at carrying out all the other duties of the office he occupies.

          1. And yet, in blind polling of presidential policies and actions, Trumps approval is sky high. It’s only when people know it’s that obnoxious hooligan on Twitter than opinions are poisoned.

            1. You have an active imagination.

              1. And you are so very kind.

  17. I haven’t heard of this guy before today, and I regularly visit LGBT news sites. Most of the nominees hit for being anti-gay I heard about before I read on Reason, so this one kind of caught me off-guard.

    As such, despite this being tangentially related to LGBT stuff (on which I’m normally more infomred then the average Reason reader or commentator), I don’t have much of an opinion of the guy. Reason’s reporting (as well other articles I’ve read) have been pretty vague on the specifics of the claims, and what he did/didn’t say†.

    That said? These nominees that break down crying, or shouting in rage? I don’t think it’s unfair to say that kind of extreme reaction should, in and of itself, be disqualifying to a judicial position. If someone in their courtroom got that emotional, you can bet they wouldn’t get a “well of course he’s emotional!”, you’d get a “compose yourself or remove yourself”. These men are either playing for the camera, or they’re not stable enough for the positions they’re nominated for.
    _________
    †To be clear, if he was directly asked if he could be fair to LGBT litigants before him, and he instead made a broad “I’m fair to everyone, of course” statement, I don’t think it’s unfair to call out the deflection. That the deflection “implies” anything is their own fault for deflecting rather then giving a direct answer.

    1. “I don’t think it’s unfair to say that kind of extreme reaction should, in and of itself, be disqualifying to a judicial position.”

      Hypothetically, suppose that Ginsburg had been accused, at her confirmation hearing, of prostituting herself to President Clinton in exchange for the nomination. I personally wouldn’t think much of the “well, her outrage at the accusation disqualifies her…” claims in that context, and I don’t think much of them in that context.

      1. So, first you invent her outrage, then you complain about the outrage you invented?

        I don’t think much of them in that context

        1. Be totally composed and nice to the people who accuse you of gang rape James!

          1. Composed and nice? No. Just composed. Being composed and mean is pretty standard for a lawyer.

            1. I’m not a lawyer.

              I’m also not up for confirmation to a judicial appointment, so I don’t have to be composed.

          2. “Be totally composed and nice to the people who accuse you of gang rape James!”

            Well, the thing is, I conducted myself such that accusations of gang rape just don’t seem to come up.

            1. James Pollock has regularly engaged on gang rape on Jeffrey Epstein’s island with Hihn.

              No, I wasn’t there, I heard about it from Tulpa, who says xe heard about it from Rev Kirkland.

              Happy now?

              1. Robert Beckman is an idiot.

                The difference is that mine is based in fact.

      2. No one accused him of prostituting himself. They asked if he, an anti-gay activist lawyer who has spent over a decade fighting gay rights, both in and out of the court, might be biased against gay people.

        But sure. A guy that’s argued that my marriage is a threat to America itself is understandably “hurt” that someone might question if he would be fair to me.

        1. Your sarcasm is in excellent form here!

  18. I suggest people read the ABA letter in the update. Includes nuggets like, “According to the letter, judges and lawyers interviewed about VanDyke reported that he is “arrogant,” “lazy” and an “ideologue.” The letter also referred to a theme of an “entitlement temperament” that emerged in the standing committee review.”

    1. “According to the letter, judges and lawyers interviewed about VanDyke reported that he is “arrogant,” “lazy” and an “ideologue.”

      Who said that? What did other people say? The problem with a non-transparent review process is that it hinges entirely on the credibility of the reviewing body. And if the reviewing body says obviously disingenuous things like “would not say affirmatively that he would be fair to…members of the LGBTQ community”, it’s hard to take the rest of what they say seriously.

      1. “arrogant” – The arrogant lawyers give the other 10% a bad name.

        “lazy” – Call the Federalist Society and provide him with top-notch conservative law clerks to write his opinions while he daydreams or whatever he does instead of working.

        “ideologue” – Generally means “has strongly held views different from mine.”

        Even if he’s from the bottom of the barrel, he’s probably going to be better than the people at the top of the Democratic barrel.

        1. If there are really damning witnesses, by all means have them before the Senate committee to share their revelations. It’s not as if the Senate is too dignified for that sort of thing.

          1. Yeah. The Senate takes ALL the testimony seriously in confirmation hearings, and never proceeds on a party-line vote…

            1. Well, bless your heart.

          2. Eddy, you seriously think the judicial process would be improved by calling in judges to a Senate hearing, and having the judges testify about the qualifications of a lawyer who might end up practicing in front of them?

            1. We’re talking about witnesses against a judicial nominee.

              The witnesses could always testify behind a screen or whatever. With the mechanical thing that disguises their voices.

              Or they could talk to a private organization and rely on that private organization to summarize their anonymous testimony.

              Whichever option is fairer and more efficient.

              1. THERE WAS A SENATE HEARING!!!
                SEE THE LINK … AND THE PHOTO … IN BLACKMAN’S POST!

      2. Who said that?

        THE ABA LETTER
        THAT YOU KEEP LYING ABOUT

      3. TwelveInchPenis REPEATS Blackman’s shameful lie … but even more blatantly!

        “would not say affirmatively that he would be fair to members of the LGBTQ community”

        Your elipsis (…) is as SHAMEFUL as the ones in the Ukrainian call “transcript!”
        Are ALL you people as totally shameful as Bernie’s and Elizabeth’s cults?

        1. “TwelveInchPenis REPEATS Blackman’s shameful lie…”

          You … You turned my innocuous user name about my height and past-time into a pun about a large penis? How dare you, sir!

          I’m gonna tell my genie on you. (He just got a hearing aid.)

      4. ” The problem with a non-transparent review process is that it hinges entirely on the credibility of the reviewing body.”

        OK. And?

        Hint: Partisans will discount any body, no matter how objective, that doesn’t fit with their preferred outcome. They start to see “hidden” bias. It turns out that when most people have a choice between believing themselves to be wrong, or somebody else, they’ll choose to believe that the somebody else must be wrong, no matter how many somebody else’s there are.

  19. Josh – given that you omit the letter’s most damning, and most relevant, conclusions regarding VanDyke’s fitness for the bench, I can only surmise that you would similarly agree that you cannot really be trusted to accurately recount the content of sources you ostensibly cite.

    The law review editors you shovel your dreck at must really have their work cut out for them.

    1. “The law review editors you shovel your dreck at must really have their work cut out for them.”

      Law review editors check every citation to make sure it’s accurate. Well, OK, they make the members do it. But they do all get checked.

    2. Which you also couldn’t be bothered to quote. So you can clearly not be trusted either.

      1. LOL. Click on the link in the OP, chief.

        This kind of knee-jerk thinking the other side is always in bad faith makes you one of the people hurting America.

        Yes, it’s tricky, but your rock-solid assurance that the other side is bad and lying to you is why you are bad.

        1. I replied to a dumb argument in kind. If it’s wrong for one person to leave out specific info, then it’s wrong for all to leave out that info.

          Your comment seems to refer to some imaginary conversation I wasn’t involved in.

          1. Ah, so you weren’t really saying that SimonP was lying, you were just trying to draw a parallel to the OP leaving material reasoning in the ABA’s conclusion out versus Simon not explicitly quoting his cite.

            I mean, it is a step up from blind partisanship to merely dumb partisanship, but I’m still going to take issue with your comment.

            1. SimonP comment is dumb. My comment is about his comment. I agree the whole conversation is dumb.

              People can not say whatever. SimonP is very dumb to draw conclusions from someone not saying something, especially when SimonP also fails to say it.

              The thing about partisanship is 100% your imagination.

              1. As I noted above, the difference between leaving something out and not quoting your citations is pretty stark. In fact, I think not quoting your citations is actually good writing, whereas the former is bad writing at best, and deceitful at worst.

                It’s like you’re trying to argue that feeding someone old potato salad about the same as letting a stew mellow overnight on the stove.

                1. Once again we learn it’s not a double standard because of meaningless distinctions.

                  1. Prof. Blackman left out material info creating a false light issue.

                    SimonP left out information that might help readers avoid having to make one more click.

                    Your insistence that that’s a meaningless distinction is not showing your to be any less dumb and partisan than my initial revector.

                    1. “Prof. Blackman left out material info creating a false light issue.”

                      No he didn’t. The OP says that among other arguments, the ABA makes an argument that is obviously bullshit. He didn’t say that the bullshit argument was the only argument that the ABA made. And as I’ve said before, the fact that their process is not transparent means that the fact that one claim is full of it casts doubt on the other claims.

                      Imagine that the ABA had said “VanDyke is lazy and farts unicorns.” Blackman would have said, “Among other claims, the ABA says that VanDyke farts unicorns, so we shouldn’t trust the other claims.” And Sarcastro would say, “Hey, Blackman left out the fact that the ABA also said that VanDyke was lazy!”

                    2. Really? You didn’t think the ABA’s issue was largely this issue? Given the length and detail in this post, you’re a more careful reader than most. If I hadn’t been following this on twitter, that’s what I’d think considering how foregrounded it was. And the comments, including your own, bolster that postulate.
                      And no, ‘among others’ doesn’t cure the issue.

                      Moreover, Prof. Blackman didn’t prove the claim he takes issue with is ‘full of it.’ He just speculates and parses and cites tears. That’s not evidence.
                      Doesn’t mean the ABA shouldn’t be more transparent if they want to reach a larger audience, but realize that you’re seizing on a narrative based on desire not on facts.

  20. “Josh – given that you omit the letter’s most damning, and most relevant, conclusions regarding VanDyke’s fitness for the bench…”

    Wait, you think that treating gay litigants unfairly is less damning than being lazy? Don’t you think that gay litigants deserve to be treated fairly?

    1. WHY DO YOU KEEP LYING ABOUT THE ISSUE??????

    2. Wait, you think that treating gay litigants unfairly is less damning than being lazy? Don’t you think that gay litigants deserve to be treated fairly?

      I read the letter. The statement about LGBT litigants is too wishy-washy for me to care one way or the other about. I’m happy to concede that the ABA’s approach to that one question is such an obvious “gotcha” that I walk right past the position.

      I care far more about putting a lazy ideologue onto the bench. He sounds like he’d be a nightmare to have to appear in front of. Imagine every time you’ve had to diplomatically tell your do-no-wrong boss that he’s full of shit.

      1. “I’m happy to concede that the ABA’s approach to that one question is such an obvious “gotcha” that I walk right past the position.

        I care far more about putting a lazy ideologue onto the bench.”

        But you’re not concerned that this is a less obvious “gotcha”? As I said above, in a non-transparent review like this, you have to rely on the messenger. And the messenger just tried to convince me that the nominee said he wouldn’t be fair to gay people.

        1. ANOTHER shameful lie!

          And the messenger just tried to convince me that the nominee said he wouldn’t be fair to gay people.

          The “messenger” says he did NOT say he’d be fair to gays … OR TO ANYONE ELSE.

          1. “The “messenger” says he did NOT say he’d be fair to gays … OR TO ANYONE ELSE.”

            Are you still mad about the distinction in your head between “fair to any litigant before him, notably members of the LGBTQ community” and “fair to any litigant … members of the LGBTQ community”

            It’s only in your head. And you should get it checked out.

    3. Wait, you think that treating gay litigants unfairly is less damning than being lazy?

      … are you surprised? I can’t speak to SimonP in particular, but lots of folk ’round here are fine with anti-gay stuff.

      1. Not only fine with it, PROUD of it. Part of their brainwashing on virtually all religious and Biblical matters

  21. Why is it a liberal lawyers guild are given a part in confirmations anyhow. Did I miss the part of the advise and consent clause that gave the ABA a chair at the table? It is high time to Senate give the ABA a “not qualified” letter and take them out of the confirmation process completely.

  22. “Why is it a liberal lawyers guild are given a part in confirmations anyhow.”

    Because (duh) they aren’t?

    1. You beat me to it, James.

      The wacky right = the wacky left!!

  23. “The Standing Committee provides the Senate, the Administration and the public with candid, confidential assessments of the nominee’s professional qualifications based on interviews with judges, lawyers, and other professionals who know or who have worked with the nominee.”

    This might be a very bad way to screen nominees. Dahlia Lithwick’s latest piece in Slate claims that female justices are publicly supporting a rapist in order to peel off a few votes to get legal outcomes they support. If that’s plausible, surely folks are willing to throw a few stones in private for the same reason.

    1. The psychotic lies NEVER stop from this ….. (person)

      Dahlia Lithwick’s latest piece in Slate claims that female justices are publicly supporting a rapist in order to peel off a few votes to get legal outcomes they support.

      This is like the conspiracy emails from psychos … always have a link (to snopes or a source) … because GOOBERS never actually click the link to discover the crazed conspiracy. The robotic mind/

      1. You really should learn to read.

        “Two of the three women justices spoke out this summer to support their new colleague. They hailed him as a mentor to his female clerks or as a collegial member of the Nine and urged us, in the case of Justice Sonia Sotomayor, to look to the future and turn the page. It is, of course, their actual job to get over it. They will spend the coming years doing whatever they can to pick off a vote of his, here and there, and the only way that can happen is through generosity and solicitude and the endless public performance of getting over it.”

  24. So I finally found out more about this guy. He’s been a social conservative activist lawyer for about fifteen years, being involved in multiple anti-gay cases, working for the ADF, peddling in bad psuedo-science and so-on.

    So given that he has, in his professional and personal capacity, been an activists against LGBT rights, I don’t think it’s unfair, or unexpected, to question his ability to be impartial to dealing with LGBT litigants. Dude literally argued that I’m a danger to any children I have, but he’s the one whose insulted and outraged? Yeah, his tears don’t move much.

    So yeah, if anything the ABA soft-balled his anti-gay activism. And sure, I get that doesn’t matter to y’all here. You’re fine with anti-gay activism. But don’t pretend that objections and concerns were fabricated, they’re based in his work history.

    1. So given that he has, in his professional and personal capacity, been an activists against LGBT rights, I don’t think it’s unfair, or unexpected, to question his ability to be impartial to dealing with LGBT litigants.

      I don’t think it’s at all unfair to question his ability to be fair. I do think it’s dubious that his response to that questioning was described fairly. As explained above, in the unlikely event that he actually intends to treat LGBT litigants (or anyone else) in a way that he subjectively thinks is unfair, it’s hard to imagine that he’d be dumb enough to admit it.

      1. I’m sure he feels no compunction about lying the the ABA examiners. On the other hand, he’s got to practice for an actual confirmation hearing, where he’d be under oath. So he has to practice answering questions in a way that satisfies the questioner with the answer given without giving an answer that would be disqualifying. In this practice round, it seems he doesn’t quite have it dialed in yet.

      2. I think the point is that, given his history,which Blackman conveniently omits, asking him for a specific statement on the matter is pretty sensible.

        And his refusal to give a specific response is significant.

  25. This post gave me the false impression that the ABA gave its rating of Not Qualified because of the statement on the LGBTQ community. After reading the letter, I see the ABA, through 60 interviewees, also found that:

    “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-today 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. … Even though Mr. VanDyke is clearly smart, comments were made that in some oral arguments he missed issues fundamental to the analysis of the case. There were reports that his preparation and performance were lacking in some cases in which he did not have a particular personal or political interest.”

    I’ll defer to the 43 lawyers, 16 judges, and 1 formal colleague over Blackman’s blog post calling one of the claims a “smear.”

    1. ^^^THIS

      1. Fuck off, spammy jackass.

    2. Feh, all it means is that, after deciding they were going to give him a “not qualified” rating over his ideology, they went looking for interviewees who shared the ABA’s ideology, and who’d be willing to give him bad reviews.

      Now, if they’ve got a rigorous methodology in place for making sure that they interview a representative sample of people who’ve interacted with the candidate, I’d be interested in that. But barring some evidence of that nature, I’m going to assume they cherry picked the people they interviewed.

      1. Fail. Wishful thinking is wishful.

      2. Here is Brett, once again backing his claims with “facts” he spins out of his own head.

    3. “This post gave me the false impression that the ABA gave its rating of Not Qualified because of the statement on the LGBTQ community.”

      The perhaps you missed the point. The letter attempted to claim that VanDyke indicated that he would be unfair to gay people. If true, this is more than enough to disqualify him. But it is almost certainly untrue. And if the ABA isn’t credible on that, they aren’t credible on the other things.

      1. ” The letter attempted to claim that VanDyke indicated that he would be unfair to gay people.”

        Except that no, it didn’t. That’s an inferral. What the letter attempted to claim is that VanDyke wouldn’t explicitly say that he wouldn’t be unfair to gay people. You’re free to infer anything from that… maybe he wouldn’t explicitly say that because he didn’t understand the question. Or maybe he didn’t explicitly say he’d be fair to all litigants because he thinks that should be a default assumption about any judicial nominee.

        1. “That’s an inferral. What the letter attempted to claim is that VanDyke wouldn’t explicitly say that he wouldn’t be unfair to gay people.”

          Well, sure. And that’s either important or not. Based on the context, one might infer that VanDyke wouldn’t say that because he was planning to be unfair to gay people, or he refused to say it for some other reason.

          If the former, that’s extremely important. If the latter, it’s irrelevant.

          And as has been explained to you repeatedly, it’s extremely unlikely that was communicating that he was intending to be unfair to gay people. So it’s almost certainly irrelevant.

          So providing the claim without context was dishonest.

          This stuff’s really not that hard, dude.

          1. “Well, sure. And that’s either important or not. Based on the context, one might infer that VanDyke wouldn’t say that because he was planning to be unfair to gay people, or he refused to say it for some other reason.”

            Yeah. That’s kind of what I said.

            “If the former, that’s extremely important. If the latter, it’s irrelevant.”

            Potentially irrelevant.

            “And as has been explained to you repeatedly, it’s extremely unlikely that was communicating that he was intending to be unfair to gay people.”

            You’ve explained why you really, really believe this. Your lack of objectivity, however, renders your opinion on the subject moot.

            “So providing the claim without context was dishonest.”

            What they claimed is accurate. What you inferred from what they claimed is dishonest. Whose fault is that? (Hint: you. You did the inferring.)

            “This stuff’s really not that hard, dude.”

            And yet you continue to struggle with it.

            1. But under his lights he wouldn’t be lying.

              He (presumably) think gays should get married like everyone else – to someone of the opposite sex. Since that’s the only proper way, him denying marriage equality is necessarily fair. So he can truthfully say that he’ll be fair to LGBT, because under his own view of the world he will be, even though you and I would assuredly disagree with him.

              But for this critique to be accurate, he has to think he’ll be unfair, and that’s entirely implausible. Though if the question was, “will you act in a way that I’ll think is fair” there might still be some room, but that’s not what the ABA claims was the context of the questions.

              1. Since we don’t know what form the question took, nor the answer, quibbling over what form the question took, or the answer, is foolish.

  26. Isn’t a lazy idealogue what you want? Has opinions but prefers to do nothing except eat corn dogs and a snow cone?

  27. A GOP nominee who weeps when he gets a kicking from liberals should be playing a different sport. Cos that’s what you’re gonna get for the next 30 years. Suck it up, or go pick daisies.

    1. To be (un) fair, once he’s on the bench he’ll be able to avoid most political stuff easily.

  28. Politics plays a part in judicial nominations. I AM SHOCKED! LOL

  29. So, why a “court reporter” rather than a “video recorder”? Are we still stuck in the age of stenograph machines?

    1. Wouldn’t matter either way. Partisan supporters would find whatever came out as proof positive that the candidate is ideal for the position, and partisan opponents would find whatever came out as proof positive that the candidate is unqualified.

      1. I tend to assume that actual evidence at least has effects on the margins, even if there are going to be people who it doesn’t effect.

        My position here is no different than my position on the FBI not recording interviews, or police who don’t want to wear badge cams. Recording devices are almost trivially cheap these days, there’s no excuse for asking people to take your word for what happened, and very little motive to avoid recording these things except to enable you to lie about what happened.

        If I were a judicial candidate being interviewed by the ABA, I’d record the interview. And if they didn’t like that, I’d invite them to take a hike.

        1. The ABA is not an organ of the state.

          That being said, I do tend to agree with your position that more recordings is more better.

          1. “If you could have recorded it, and didn’t, I’m going to suspect that you wanted to be able to lie about what happened.” is not a line of reasoning that depends on the people refraining from recording being from the government.

            1. I like recordings, but a negative presumption for anyone who doesn’t record isn’t yet viable.

        2. “Recording devices are almost trivially cheap these days,”

          But not yet mistake-proof or 100% reliable. Since you’re going to go on to assume that anything that didn’t get recorded didn’t happen, and the people responsible for this recognize that they might make a mistake, or they might get equipment that isn’t working, and don’t want to have you making that assumption.
          See also “CSI effect”.

          “If I were a judicial candidate being interviewed by the ABA, I’d record the interview. And if they didn’t like that, I’d invite them to take a hike.”

          Reasonable. Of course, if it turned out you’d said something disqualifying, or even just stupid or incorrect, you’d edit the recording so it looked like you didn’t. You have the same “lack of trust” problem… if you don’t trust the people who say you said something disqualifying, you don’t trust them to produce honest, accurate recordings, either.

          (Hint: If you want to claim a transcript is exact and word-for-word, make sure it doesn’t say right on it that it isn’t.)

          1. That’s why they should have their own recorder, too, and would be morons if they let me record but didn’t themselves.

            I think we’re headed towards a society where everybody is going to live their lives with a “wire”, just as a defensive measure against allegations they can’t otherwise disprove.

            We’re not there yet, but in certain contexts, the failure to record should result in negative inferences. And an interview by a hostile organization is one of them.

            1. “I think we’re headed towards a society where everybody is going to live their lives with a “wire”, just as a defensive measure against allegations they can’t otherwise disprove.”

              Except for the point I made before. If you can’t be trusted, then neither can any alleged “recordings” you produce.

  30. For the record here…

    Magna Cum Laude from Harvard, then (from the NR).

    Following his law school graduation, VanDyke worked as an Associate Attorney at Gibson, Dunn & Crutcher LLP. Following his first year at the firm, he clerked for the Honorable Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit (2006-2007) and then returned to the firm. While in private practice, he handled pro bono matters for such diverse groups as the ACLU, the Free Market Foundation, and the Alliance Defending Freedom (ADF). His work for ADF included representing an Orthodox Jewish Day School in New York that was challenging discriminatory zoning.

    In 2012, VanDyke began several years of service in the Solicitor General’s offices of three states, starting with service as Assistant Solicitor General of Texas. Between 2013 and 2014, he served as Solicitor General of Montana and was a candidate for the Supreme Court of Montana in 2014. In 2015, he was appointed Solicitor General of Nevada, a position he held until earlier this year.

    1. But the “real problem” is this…

      VanDyke also litigated in defense of the Second Amendment and religious freedom. He filed the multi-state amicus briefs at both the circuit and Supreme Court level in the Trinity Lutheran case. He was also part of the successful multi-state challenge to the Obama administration’s DAPA program, which attempted to legalize and grant numerous benefits to over 4 million illegal aliens without statutory authority. As the lead lawyer for a 22-state coalition, he successfully challenged the Obama administration’s Overtime Rule.

      1. Your speculation about what the other side’s motives are says quite a bit about your psyche, and not much about theirs.

        1. But your speculation about VanDyke’s fairness vis a vis LGBT litigants says nothing about you?

          1. Notably, I said nothing about his fairness – in fact, I concede that the ABA didn’t do a great job proving their thesis on that point.

            But I also don’t think Prof. Blackman proved his thesis about the ABA being unfair.

            And, of course, the fact that AL is super sure that the one issue the left hates the most about this guy is guns? As I said, that shows his own monomania.

            1. Not sure how you got “the one issue the left hates the most about this guy is guns?” out of the statement I made, but hey. whatever.

              1. But the “real problem” is this…

                Your words.

                1. Religious freedom, DAPA, Overtime Rule?

                  I don’t really care about those, but they’re all mentioned in addition to gun rights, yet you chose out only gun rights.

                  I think that proves too much.

      2. He also has a considerable record of anti-gay legal activism. The concerns expressed are reasonable.

        1. He supports the first amendment, and freedom of religion. That’s troubling to some people, who would discriminate against those with religious beliefs.

          Why some people like to be bigoted against those who hold religious beliefs is beyond me, but it’s clear in today’s society, a growing number of people have an animus against those who hold religious beliefs, and seek to discriminate against them.

          1. Diversion.

          2. What do freedom of religion or the first amendment have to do with SSM?

            Nothing whatsoever.

            I don’t want to discriminate against those with religious beliefs, but I don’t want to give bigots a free pass just because they come in yelling about Jesus either.

          3. “That’s troubling to some people, who would discriminate against those with religious beliefs. ”

            The core problem is that some people consider it a violation of their right to free religion if they can’t use the power of law to force other people to comply with their religion.
            I’ll freely admit to discriminating against people who hold that belief.

  31. If, as has been indicated, this nominee believes the government should engage in childhood indoctrination regarding Biblical creationism in science classrooms (because he rejects science to flatter nonsense), he is not fit to be a judge.

    This would avoid examination of whether this nominee is a gay-bashing bigot.

    1. “If, as has been indicated, this nominee believes the government should engage in childhood indoctrination regarding Biblical creationism in science classrooms (because he rejects science to flatter nonsense), he is not fit to be a judge.”

      See that, folks? The ABA’s less honest than Kirkland.

  32. Time to bring back the honorable culture of dueling.

    1. Come on, man. You were doing so well, and then you need to bring up how you think our politics would be enhanced with barbarity.

      1. I dunno. An honorable gentleman’s duel seems less barbaric than sneaky plots to assassinate the character of a good family man by calling him a gang rapist.

        1. Adding violent death to arguments is not actually honorable.
          Nor did it historically inhibit scandlemongering in politics.

          I’m willing to be rebutted, but your support looks less practical to me and more like a sign you want your political opposition killed for (what you see as) their lack of honorable tactics.

          Which is kinda sociopathic.

          1. “you want your political opposition killed”

            Actually, in a duel, it’s just as likely to end up the other way around.

            1. Sure, but I believe I can suss out which side you’re be rooting for.

            2. “’you want your political opposition killed’
              Actually, in a duel, it’s just as likely to end up the other way around.”

              So, you’re suicidal, but lazy? Do it yourself, or don’t. Quit trying to make someone else do it.

    2. You’re assuming your opponent is honorable….

      Not meant as a jab at your particular political opponents, but that this angle always falls flat on this particular assumption.

  33. So on “creationism” – it seems Van Dyke wrote a book review for the Harvard Law Review (I doubt there’s a free link but anyone is free to check), agreeing with the book being reviewed that it’s constitutional to teach intelligent design in the public schools.

    https://themontanapost.com/blog/2019/09/20/repost-a-creationist-for-the-9th-circuit-court-a-review-of-lawrence-vandyke/

    So stipulating that Intelligent Design is wrong, this raises the question how far the federal courts can going in reviewing the curricula of public schools. We may presume that he won’t be second-guessing even dubious curricular choices, but leave these choices to school administrators and (in case of backlask) to elected school boards and state legislators.

    If he’s on the 9th circuit, then realistically our concern should be focused on certain “backward, can’t keep up” enclaves in California, Washington, etc. – states which in their most enlightened districts would never teach ID in a million years.

    So how much judicial resources should be employed in monitoring the curricula in these can’t-keep-up areas? (I presume that the education on tap in the blue areas of these states is top-notch and needs no judicial interference).

    1. “So on “creationism” – it seems Van Dyke wrote a book review for the Harvard Law Review (I doubt there’s a free link but anyone is free to check), agreeing with the book being reviewed that it’s constitutional to teach intelligent design in the public schools.”

      I agree that it’s probably Constitutional. But teaching it as “science” is just a stupid waste of tax dollars. Creationism isn’t science.

      1. I stipulated it was wrong. But there’s only so much – i. e., very little – the courts can do to protect public-school students against bad teaching.

        1. False advertising is fraud. Courts can protect the schools from fraud.

          1. Public schools also represent themselves as safe institutions, where students learn skills which would benefit them in the real world.

            If, hypothetically speaking, this turns out not to be the case at some public school or other, would the parents or pupils be able to sue for fraud?

            How far does your principle extend?

            1. “Public schools also represent themselves as safe institutions, where students learn skills which would benefit them in the real world”

              In the suburbs, maybe. Elsewhere, they’re places to stash kids until they’re old enough for prison. If they were advertising themselves as “safe institutions”, they wouldn’t need “resource officers” in them.

              1. So – no action for fraud against the non-suburban schools?

                1. No action for fraud because no fraud. School attendance is mandatory. How do you get fraudulently induced to do something required by law?

                  1. I don’t know, it’s your definition of fraud I was asking about: “False advertising is fraud. Courts can protect the schools from fraud.”

                    1. “My” definition of fraud is the definition of fraud. May I suggest you consult a copy of Black’s?

                    2. So it’s fraud when that position is useful to assert, and it’s not fraud when that position is not useful to assert.

                      “Doublethink means the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them. The Party intellectual knows in which direction his memories must be altered; he therefore knows that he is playing tricks with reality; but by the exercise of Doublethink he also satisfies himself that reality is not violated. The process has to be conscious, or it would not be carried out with sufficient precision, but it also has to be unconscious, or it would bring with it a feeling of falsity and hence of guilt.”

                    3. “So it’s fraud when that position is useful to assert, and it’s not fraud when that position is not useful to assert.”

                      If you say so, Eddy. Or, you could, you know, actually read what I said, and apply it. Wait, no you can’t.

                      Well, then, why don’t you be a dear and run off on a tangent that you imagine shows you’re using superior intellectual capacity, while actually requiring none? Mustn’t risk your 3 surviving brain cells colliding with each other, or any kind of original thought.

              2. Since I was on the receiving end of a school shooting in high school, in a suburb in California (albeit one with a nickname like the Rev) does that mean I can sue for fraud? I didn’t get to finish calculus that year because of the shooting, so can I get an additional year of my current wages?

                1. Good luck with that.

      2. No. It’s not Constitutional. It’s a clear violation of the establishment clause.

    2. this raises the question how far the federal courts can going in reviewing the curricula of public schools.

      Depends on the issue in question, doesn’t it? Since ID is, whatever its proponents say, plainly a religious rather than scientific idea, I’d say the courts have ample authority to throw it out based on the establishment clause.

      1. How is it “plainly” religious?

        It’s not scientific because it’s never structured as something that can be disproven, but most “science” (and pseudo-science) taught in public schools isn’t science either, because most teachers themselves don’t understand what science is (and the text books assuredly don’t teach it).

        1. What else is it? It plainly posits the existence of a Designer.

          And just because teachers don’t understand all aspects of a science they teach doesn’t mean it’s not a science.

          Is chemistry not a science because some high school chemistry teachers have a less than expert understanding of it?

    3. So on “creationism” – it seems Van Dyke wrote a book review for the Harvard Law Review (I doubt there’s a free link but anyone is free to check), agreeing with the book being reviewed that it’s constitutional to teach intelligent design in the public schools.

      I couldn’t find a free copy, but it’s at 117 Harv. L. Rev. 964 if anyone wants to look it up.

      It’s pretty bad. He was only a 2L when he wrote it, but he was also 32 years old at the time, so I don’t think that’s much of an excuse. If he can’t disavow it and explain that he’s realized he was wrong, I think I’d find it disqualifying.

      (Of course, since I’m not a senator it really doesn’t matter what I find disqualifying. And the fact that the evolution debate has won pretty decisively over the last 15 years gives me some solace in light of the fact that he’s definitely going to get confirmed.)

      1. I’m not sure what the problem here is supposed to be. It’s legal to teach a lot of stupid things in school.

        I mean, the way they teach math in 5th grade under Common Core ought to be a felony, but it isn’t.

        Let me anticipate: Sure, basically nobody adopts “Intelligent Design” out of other than religious motives. But religious motives don’t constitutionally taint things.

        1. Read the review if you can. It’s not just analysis of whether teaching intelligent design would constitutional or not: it’s very clear that he believes schools should be teaching intelligent design, because it’s correct and the theory of evolution is not correct.

        2. “It’s legal to teach a lot of stupid things in school. ”

          It’s also stupid. Some of us prefer fewer stupid things in the world rather than more.

          ” Sure, basically nobody adopts ‘Intelligent Design’ out of other than religious motives.”

          My core objection is not that it’s religion. My core objection is that they keep trying to insert it into the science curriculum, and it is not science. OK, they don’t understand science, possibly because they went to bad schools. But keeping the cycle of bad schools going…
          Let them insert it into the Sunday School curriculum, and everyone can be happy.

        3. I’m not sure what the problem here is supposed to be.

          Let me help you out.

          First, anyone who believes in ID is an imbecile, and it’s not a good idea to have imbeciles on the bench.

          Second, teaching ID in a public school is a violation of the establishment clause in a way that a method of teaching math, however foolish, is not.

          Got it?

    1. I bet the goobers and clingers will pounce on this in their effort to delegitimize respectable institutions.

  34. Forgive my ignorance/unwillingness to look it up, but I’m seeing a couple of different messages on this here.

    Does the ABA have a formalized role in Senate judicial decisions, or is it just a lobbying organization that puts out statements that are signal-boosted by Dems and that the GOP wishes had less public weight?

    1. No formal role, just a traditional role. The senate isn’t obligated to consider their advice at all.

      1. Nor is the executive limited to choose only ABA-approved candidates. Most of the time, though, they avoid selecting the “non-qualified”.
        Plus, of course, the self-aware non-qualified might be inclined to decline the candidacy rather than risk being labeled as such.

  35. I’m still waiting for Blackman to tell us what was misleading or inaccurate about the ABA report.

    If he can’t do that then he should go back to tracking SCOTUS birthdays.

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