New in The Atlantic: "How the American Bar Association Can Fix Its Mess"

The VanDyke report proves that the ABA cannot be trusted to fairly review nominees.

|The Volokh Conspiracy |

The Atlantic has published an essay based on a post I wrote here last week about Lawrence VanDyke's nomination to the Ninth Circuit. Here is the conclusion:

What happens next? Nominees, of course, could refuse to meet with the ABA. Though that option includes a risk: The most damning allegations will not be refuted. There is a far more productive approach. These interrogations should be treated as hostile depositions. A court reporter and videographer should be present, as well as privately retained counsel to push back on unfounded accusations. In the event that the nominee is rated as qualified, there would be no need to release the transcript. Going forward, when a nominee is rated as unqualified, the transcript should be released, and the recording should be posted publicly online. There is no reason to rely on disputed accounts of the interview.

As originally designed, the confidential nature of this process made some sense. The interviews were not recorded to ensure that members of the bar could candidly critique a potential jurist, and to prevent the nominee from facing public embarrassment if the report was released. But the VanDyke letter turns that practice on its head. He was sandbagged at the last minute, and he was not given a chance to address any of the accusations it contained. This wound was entirely self-inflicted. If the ABA wanted to rate a nominee like VanDyke as unqualified, the organization should have followed its own rules to a T. Instead, it ran a slipshod process, led by a person whose objectivity was open to question.

This process should no longer be a black box. If reports faithfully reflect the interviews, faith can be restored in the ABA. If the process remains shrouded in secrecy, Americans can safely discount future findings.

To date, the ABA has continued to stand by the VanDyke report. That decision should be reconsidered. The organization should assign a second investigator, whose objectivity cannot be question, to review the recommendation. That move would restore some faith in the process.

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  1. This process should no longer be a black box. If reports faithfully reflect the interviews, faith can be restored in the ABA. If the process remains shrouded in secrecy, Americans can safely discount future findings.

    ^This. It is abundantly clear there is a political bias that permeates the ABA.

    1. Abundantly clear?!?

      Yeah, go ahead and find those data that back up your statement.

      We’ll wait. . . .

      1. “Find those data …” that’s a good one. Can’t. The ABA hid it. Usually the party hiding something has done something wrong and doesn’t want it public. Is more proof needed?

      2. Isn’t the burden on the party claiming that the pubic should have confidence in a non-transparent process?

        1. The burden is on the party claiming something.

          1. Like claiming a special right to be able to vet and interview candidates? Like claiming some type of special insight as to the qualifications of candidates? Like claiming someone is unqualified based on perceived biases in the way the respond to questions (without actually releasing the actual testimony)?

            Like that type of claiming?

            1. Exactly. The governmernt didn’t ask the ABA to vet candidates for office. If the ABA is going to come out and deem some candidats as unqualified, it has the duty to show why that is. (Saying is not showing.)

          2. You have proof of that claim, of course?

      3. Model Rule 8.4(g) is a pretty good start.

      4. We have it. You just refused to acknowledge it,

  2. They’re not going to do that. Like the news media, the ABA views their reputation as a wasting asset: It’s declining in value, and there’s nothing they can do (That they’re WILLING to do!) to change that.

    So the only sensible thing is to expend it while it still has some value, to obtain something else. The something else they’ve chosen, like the news media, is political influence.

    Again, like the media, they figure that if they can swing things in the Democrats’ favor, they’ll be rewarded even if the market doesn’t like it. THAT is the the salvation they see, not being widely respected. The worse their situation gets, the tighter they will cling to it, and the more they will double down on their bias.

    1. You forgot:

      Hollywood
      Universities
      Environmentalists
      Unions
      LBG etc.
      Urbia / Suburbia
      Pro-choicers
      etc.

    2. “They’re not going to do that. Like the news media, the ABA views their reputation as a wasting asset: It’s declining in value, and there’s nothing they can do (That they’re WILLING to do!) to change that.”

      Very good point. Well said.

  3. On the face of this, it seems like the ABA didn’t do a good job of either investigating or reporting Vandyke – and none of us know the reason why (hopefully the reason will come out).

    But to make unfounded judgements – based on this one case – is really silly.

    1. Seems more like the ABA is the one making the unfounded judgement.

  4. This post doesn’t seem to add much content to the previous post on the issue.

    1. Agreed. But should we bet which of the two posts will get more comments? Because my money is on this one.

      I mean, lots of minds were changed after the last comment fight, so why not go through that process again.

  5. “the ABA cannot be trusted to fairy review nominees”

    Fairy review? Fairy nominees?

    The joy of typographical errors. 😀

    1. Typo, or anti-LBGTXYZWTF bias?
      Cancel that organization!

    2. I wonder if it was intentional usage instead of typographical error.
      After all, it appears that the ABA uses fairy dust to cover their actions.

  6. Why would they want to be fair or honest? Don’t they have an cause to advance instead?

    The idea that objectivity and fairness might return seems to be backward looking. Maybe you remember people trying to be honest, listening, reasoning, trying to understand, acting the way good people might act. How often do you see that any more — at least as it relates to government or the news media? They don’t even try.

  7. The thing is, if people don’t trust an organization, they don’t trust transcripts offered by the organization, and they don’t trust video offered by the organization. The same is true of the candidate.

  8. Conservatives have been whining about mainstream institutions, and forming separatist organizations, for decades. There’s a right-wing ACLU, a right-wing AARP, a right-wing school accreditation agency, right-wing social media sites, right-wing schools, etc.

    This seems a natural response among conservatives to observing the liberal-libertarian mainstream shape American progress against conservative preferences throughout the lifetime of nearly everyone alive today.

    These partisan copycat entities have not changed America’s course, however, and largely haven’t diminished the mainstream organizations they oppose. Our strongest schools are reason-based, liberal-libertarian institutions. Right-wing schools are generally fourth-tier institutions with sketchy accreditation and shambling graduates. The right-wing AARP and right-wing ACLU are pale facsimiles of the genuine articles. The Wall Street Journal is the sole conservative newspaper worthy of cleaning ink smudges from the Washington Post or New York Times, largely because the Journal tends to resist the unprofessional impulses that drive most right-wing publications.

    The American Bar Association should consider all criticism but largely discount that aimed by partisan, polemical sore losers such as the Volokh Conspiracy, whose incessant criticism of strong liberal-libertarian schools for ostensible outrages against free expression accompanies a studied disregard for the strenuous censorship on downscale right-wing campuses that impose speech codes, reject academic freedom, suppress science, warp history, teach nonsense, enforce stale conduct codes, collect loyalty oaths, and engage in comprehensive viewpoint-based discrimination.

    1. It’s truly astonishing that, with all the obnoxious and hyperbolic commentors in these threads, RAK continues to find ways to prove that he is the most bigoted and least tolerant among them.

      1. Quit whining, clinger. Try to accept defeat with dignity.

      2. I’m starting to wonder if it’s a mental form of dyslexia!

  9. The ABA can close its doors permanently.

  10. The basic problem is the ABA’s recommendations are a vestige of a period where there was a semi-neutral standard of judicial competence that everyone basically agreed on, and that was considered at least as important as the judge’s ideology. There were always outliers like Bork and Fortas, but in general, there was this notion that you wanted a “good judge”. It’s the reason Scalia and Ginsburg both were confirmed by the Senate by gargantuan margins.

    Nowadays, however, political actors (and the party bases) care far, far more about ideology than they do about judicial craft. And in that era, ABA recommendations are irrelevant.

    Now what the ABA should do is just dismantle the enterprise, understanding that it is a political process now. But they won’t, because you see, people have egos….

    1. “Now what the ABA should do is just dismantle the enterprise, understanding that it is a political process now. But they won’t, because you see, people have egos….”

      Or, they can keep judging people on their judicial temperament, and just ignore all the people carping from the sidelines about partisan bias.

      1. No, they really shouldn’t. Because it costs the organization credibility as the politicians ignore there recommendations (as they absolutely should, by the way- a politician’s job is to reflect the will of his or her constituents, and if they want ideological judges, or all judges to be voted through on party line votes, that is exactly what Senators should do). And because it’s simply a waste of time- the ABA could spend that money they currently spend on judicial recommendations that nobody cares about anymore doing something else, like providing more lawyers for indigent clients or something.

        Indeed, there’s an even greater down the line danger, which is that if “unqualified” judges are being routinely confirmed anyway, those judges could take the bench with a grudge against the ABA, which could diminish the organization’s effectiveness as an amicus.

        1. a politician’s job is to reflect the will of his or her constituents,

          No.

          A politician’s job is to use his or her best judgment as to the good of the country.

        2. ” it costs the organization credibility as the politicians ignore there recommendations”

          No, changing the way you do things costs the organization credibility. It’s a concession that yes, the organization WAS doing something wrong.

          You don’t win by surrendering.

          1. LOL nope. We know the organization is doing something wrong. They SHOULD admit it. Not admitting it and not changing will cost them credibility. Doing something and admitting it gains them credibility.

      2. Well they could, but its clear they are NOT judging people on their judicial temperament, and its all about bias.

        So maybe you should change your mind.

      3. “Or, they can keep judging people on their judicial temperament, and just ignore all the people carping from the sidelines about partisan bias.”

        That’s easy to say when the bias is to your side’s favor.

    2. Another problem is the ABA’s broad brush term “not qualified.”

      There was a nominee a few weeks ago about whom they had nothing but praise, but rated NQ because of what they deemed insufficient experience. Now, as it happened I agree that the guy’s resume was too thin for a federal judgeship. But nobody needs the ABA’s opinion on that — his number of years of practice is an objective fact that is readily ascertainable by all — and giving that the exact same label as “This guy is a lazy incompetent bigot” is misleading at best. (I am not endorsing that description of Van Dyke; I’m just relaying it.)

  11. “The organization should assign a second investigator, whose objectivity cannot be question, to review the recommendation.”

    That is just absurd when the issue in question involves political actors. There is simply no such thing as a human being whose objectivity cannot be questioned, especially when that human being is making a judgment on a political actor. If an investigator oversees an inquiry that results in a “Not Qualified” rating, the nominee is not going to simply accept they are not qualified to be a judge and move on. Nor is the party in control going to accept the claim and move on. The more likely response, by both the nominee and the party in control, is to say that the investigator is biased or has a political motive. So, no matter who the nominee is, or which party is in control, every “Not Qualified” report will be followed by one group challenging the objectivity of the investigator. Therefore, every investigator will have their objectivity questioned.

  12. I like you your article completely skips all the partisan activist work he’s done that might make people question VanDyke’s objectivity.

    I mean, me, personally? If I find out the judge hearing my case made legal arguments about how I’m a danger to children, I’m asking for a different judge, I don’t care what partisan Senate Republicans say. I mean, he literally argued that the government had a right, and was right, to treat me differently then comparably situated straight people. That he might have meant it, and treat me differently from comparably situated straight people isn’t an unfair suspicion.

    1. Yes, by all means, let’s have long arguments about how shit the ABA is and not talk about whether this guy should be a federal judge.

    2. One of the great achievements of America during our lifetimes is that bigots no longer wish to be known as bigots, at least not publicly and overtly. Bigots are on the defensive, which is as it should be in America.

      Carry on, clingers. While you still can, anyway. Until replacement.

      1. You seem quite proud to wear your bigotry openly, though.

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