Hawley, Lee: Take ABA out of judicial nominee recommendation process now

It is hard to watch a grown man cry. The members of the Senate Judicial Committee must have been taken aback during a hearing for the Ninth Circuit Court of Appeals nominee Lawrence VanDyke when he broke down and wept during questioning by Senator Josh Hawley.


The culprit of VanDyke’s angst is the American Bar Association (ABA). Typically during the nomination process, the ABA issues a letter of recommendation. The recommendation is either in favor of the nominee’s confirmation or against it. In this case, the ABA issued a particularly nasty recommendation against VanDyke’s confirmation Tuesday night before VanDyke’s hearing on Wednesday. The ABA claims that people that were interviewed about VanDyke “would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.” The organization claims it interviewed 60 people. VanDyke denied the allegations.

During Hawley’s time for questioning the nominee, he brought out an interesting twist in this process – his interview with the ABA was conducted by Marcia Davenport, the lead evaluator. Hawley pointed out that Ms. Davenport once contributed to the political campaign of a judicial candidate running against VanDyke for the Montana state Supreme Court. “I find that absolutely unbelievable,” Hawley said, stating it “probably explains the totally ad hominem nature of this disgraceful letter.” In the opinion of the ABA, VanDyke is “Not Qualified”.


The paragraph preceding the questioning of his attitude toward LGBTQ litigants included a list of other complaints against VanDyke, attributed to “the assessments of interviewees,” without detailing who or how many.

“Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” it said, explaining why despite his professional and academic experience, they gave him a “Not Qualified” rating. “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.”

The ABA did toss a bone to VanDyke as the letter admits that he is “clearly smart”. VanDyke is a Harvard Law School graduate. He has served as solicitor general for not one but two states -Montana and Nevada.

Earlier, Senator Mike Lee called out the ABA for its obviously flawed process. “The ABA has essentially called you a homophobic bigot”, he said to VanDyke. Lee then allowed VanDyke to deny a prejudice against the LGBTQ community. Lee wants to end the ABA’s involvement in the nomination process until the organization’s methods are investigated. Conservatives have long held that the ABA leans left and is more favorable to liberal judicial nominees. Hawley agrees with Lee. Hawley referred to the ABA as one of many special interest groups.


“The time has come, Mr. Chairman,” Lee said, “to suspend the unique access that the American Bar Association has, until such time as a thorough investigation and review is undertaken to inquire into how these functions are performed.”

Hawley made a similar declaration, urging the White House counsel’s office “not to make nominees available any longer to the ABA for these interviews,” and that “they should be treated like any other special interest group.”

VanDyke told the senators he was not allowed an opportunity to respond to the allegations during his ABA interview. As he began to answer, he said, VanDyke was told their committee was running out of time.

At least six of President Trump’s judicial nominees have received “Not Qualified” assessments from the ABA. The letter against VanDyke’s confirmation brought out backlash from conservatives.

“The ABA is a liberal dark-money group, fronting for trial lawyers who donate millions of dollars to Democratic politicians,” said Mike Davis, who served as chief counsel for then-Judiciary Chairman Chuck Grassley and now runs the Article III project, a group that supports Trump’s nominees. Davis calls the ABA process “fatally flawed, as it is intentionally structured to couple liberal activists with a subjective, black-box process that oftentimes results in unfair hits on conservative judicial nominees.”


Senator Ted Cruz noted that the ABA found VanDyke to be guilty of “practicing law while conservative.”

All of this outrage and anti-LGBTQ accusations may stem from an op-ed VanDyke wrote in 2004. He expressed concerns about the effect of same-sex marriages on children. He has since changed his opinion. During Sen. Durbin’s questioning on this subject, VanDyke set the record straight. (No pun intended.)

Sen. Patrick Leahy, D-Vt., perhaps shedding light on where such concerns may have originated, asked VanDyke about a 2004 op-ed he wrote about how same-sex marriage may be harmful to children. VanDyke said his views have changed since then, but noted that personal views do not come into play in his judicial decision-making.

Sen. Dick Durbin, D-Ill., asked VanDyke about his beliefs regarding situations where gay rights may be at odds with religious freedom. VanDyke recalled a pro bono case he worked on that dealt with such issues.

“One of my favorite cases was a case where I represented an LGBTQ advocacy group in the United States Supreme Court in a case involving religious liberty,” he said. “In the position we were in, it was illustrating that there doesn’t have to be a conflict.”

It all looks like a standard attack on a conservative judicial nominee from the left and a favored special interest group. A shining success of the Trump administration has been the record number of judicial nominations pushed through and confirmed by the Senate, thanks to Majority Leader Mitch McConnell’s mad skills. The Ninth Circuit Court of Appeals is an important one for all involved, as it has been so heavily liberal for so long. Let’s hope VanDyke gets his confirmation quickly and goes to work soon.


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