Josh Blackman: The ABA broke its own rules to attack one of Trump's judicial nominees

Lawrence VanDyke is President Trump’s nominee to fill a vacancy on the Ninth Circuit Court of  Appeals. Last week VanDyke got sandbagged by the American Bar Association which published a nasty “not qualified” letter the night before his confirmation. Karen wrote about this episode last week but today Law Professor Josh Blackman has written a piece for the Atlantic arguing that the ABA not only ran a shoddy process but even broke its own rules in doing so. Blackman, who is a supporter of VanDyke, notes that the ABA letter made several claims about the nominee that it didn’t even attempt to support:

For example, the letter stated, “In some oral arguments [VanDyke] missed issues fundamental to the analysis of the case.” Oral arguments are matters of public record. It should have been easy enough to cite several, or at least one, case in which VanDyke missed a fundamental issue. But the letter offers no such citation. (The law professor Orin Kerr reviewed a few of VanDyke’s arguments, and said he seemed to be a “very good advocate.”) Likewise, the letter asserted that “his preparation and performance were lacking in some cases in which he did not have a particular personal or political interest.” If some objective evidence exists to back up this accusation, none was provided. The letter said VanDyke was “lacking in knowledge of the day-to-day practice including procedural rules.” But it offered no evidence to support this claim, either.

Shouldn’t accusations like these be backed up with facts? The ABA letter also made some personal attacks on the nominee which it claims were based on more than 60 interviews with people who had worked with him. However, the letter never said how many of the interviewees shared those negative views. Was it three? Five? Twenty? What we do know is that several of VanDyke’s supporters said the interviews lasted less than five minutes and seemed perfunctory at best:

Other claims in the letter were quite personal. For example, based on “assessments of interviewees,” the ABA reported that “VanDyke is arrogant, lazy, [and] an ideologue”; “lacks humility”; and “has an ‘entitlement’ temperament.” And it reported “a theme” that he “does not have an open mind, and does not always have a commitment to being candid and truthful.”

Who would make such unfounded accusations? The letter states that the ABA’s evaluator conducted “60 interviews with a representative cross section of lawyers (43), judges (16), and one other person” who have worked with VanDyke. Those interviews included “attorneys who worked with him and who opposed him in cases and judges before whom he has appeared at oral argument.” Did all 60 people have the same opinions? The letter itself concedes that they did not, stating that “the interviewees’ views, negative or positive, appeared strongly held on this nominee.” Those positive views are not relayed in the letter, though, and it gives no indication of how widely held the negative views actually were.

Indeed, there is some evidence that the interviewees who supported VanDyke’s nomination were not asked to rebut such slanderous charges. Former Nevada Attorney General Adam Laxalt told National Review that when he was contacted by the ABA, he’d spoken of VanDyke in glowing terms. (His assessment matches my own.) Laxalt was interviewed by Marcia Davenport, a Montana trial attorney who led the ABA’s evaluation. Laxalt said that the interview was “short and perfunctory,” and that Davenport “did not ask me to comment on anyone else’s critiques of his character or professionalism.” Nor did she ask Laxalt to comment on VanDyke’s most important cases during his tenure as Nevada solicitor general. Laxalt told Fox News that Davenport “seemed completely disinterested.”

Three other people interviewed by the ABA said the same thing. The interviews lasted less than five minutes and the interviewer didn’t seem very interested in their (positive) opinions of the nominee.

The final attack on VanDyke was the claim that during his own interview he had refused to “say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.” Blackman says that claim is hard to believe given that every nominee is asked questions like that and every one gives a stock answer about respecting the rights of everyone that comes before the court. In fact, VanDyke gave that answer during his confirmation hearing when asked (see below). Blackman concludes the claim VanDyke said otherwise during an interview with Marcia Davenport is “utterly implausible” and suggests Davenport should be made to testify before the Senate about exactly what was said during the interview.

Finally, Blackman notes that the ABA violated it’s own rules in at least three ways in preparing the hit on VanDyke. First, he says Marcia Davenport should have recused herself because she previously donated money to one of VanDyke’s opponents in an election for the Montana Supreme Court.

Second, when the ABA determines a nominee is “not qualified” it is supposed to appoint a second person to evaluate the claims and perform a second interview with the nominee. That didn’t happen in this case.

And third, the ABA is supposed to present the nominee with a copy of the statement 48 hours in advance. In this case, the letter was “released at 7 p.m., in advance of a hearing the next morning.” Blackman concludes, “VanDyke was ambushed.” He adds, “This letter demonstrates that the organization can no longer be trusted to perform a fair assessment of nominees.” Rather than refusing to be interviewed by the ABA, he recommends that in future interviews be conducted with a video camera present so any disputes about what was said during the interview can be resolved one way or the other.