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Volokh Conspiracy

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


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.