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Trump Judge Pick Called ‘Lazy, Arrogant’ by Peers, ABA Says (3)

Oct. 30, 2019, 4:03 PMUpdated: Oct. 30, 2019, 10:52 PM

Federal appellate nominee Lawrence VanDyke received an unqualified rating from the American Bar Association, which cited interviews with legal peers who said he was accomplished, but “arrogant, lazy and an ideologue.”

The sharply-worded assessment to the Senate Judiciary Committee surfaced ahead of the Trump nominee’s confirmation hearing Oct. 30 for a seat on the U.S. Court of Appeals for the Ninth Circuit. It ignited a simmering controversy that led ABA’s ratings group to defend its work amid allegations of bias.

Testifying at the hearing at which the room fell silent during an emotional moment, VanDyke pushed back on the lowest qualification rating and peer criticism that was included in a letter to lawmakers from the ABA’s Standing Committee on the Federal Judiciary.

“I was much more hurt than I’ve ever been to get that,” the Justice Department environmental lawyer said of the ABA rating. “I don’t think that was reflective of me.”

Republicans who control the Senate came to his defense with Sens. Mike Lee of Utah and Josh Hawley of Missouri calling for a suspension of the ABA’s access to nominees.

“I’ll continue to look at what they say,” Judiciary Chairman Lindsey Graham of South Carolina said of the ABA’s review of VanDyke’s qualifications. “But I would associate myself with the people who thought it was a pretty sloppy job.”

Some Republican lawmakers have long said the ABA ratings are biased against conservatives and are irrelevant. Outside conservative groups blasted the VanDyke ratings as politically influenced and a smear.

Democrats have raised concerns with other Trump nominees lacking the ABA’s blessing and promoting what they call extreme views, but it has not derailed his push to appoint more than 150 judges to the federal bench, including Justice Brett Kavanaugh and Justice Neil Gorsuch to the Supreme Court.

Still, at least one Judiciary Committee Democrat suggested the panel call the ABA to testify about its reasoning on VanDyke. Graham said he’d look into it.

Majority Says Unqualified

A majority of the ABA panel rated VanDyke as “Not Qualified” for a lifetime appointment to the federal bench, according to the letter from standing committee chair William Hubbard. It noted VanDyke’s intellect, his experience as a veteran appellate lawyer and as former solicitor general in two states.

His accomplishments, however, “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,” the letter said. ”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.”

VanDyke, defending himself further, said that as a solicitor general in Nevada and Montana he hadn’t always had the ability to choose his cases.

The letter also noted that some of the legal peers interviewed “raised concerns about whether Mr. VanDyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community.” An LGBT group has criticized a past article it said he wrote putting homosexual “rights” in quotes.

When asked by Hawley at the hearing about the veracity of those sentiments, VanDyke paused for several seconds and held back tears. He denied that he said anything that would indicate he wouldn’t treat people fairly.

“It is a fundamental belief of mine that all people are made in the image of God. They should all be treated with dignity and respect,” VanDyke said.

Judiciary Chairman Lindsey Graham (R-S.C.), referencing questions about the LGBT community, asked he if he could be fair to his fellow Ninth Circuit nominee, federal prosecutor Patrick Bumatay, who is gay. VanDyke said yes.

The ABA said its assessment was based on 60 interviews with a “representative cross section” of lawyers, judges and an another person who have worked with him in four states. The committee said it also weighed “detailed” background information including emails, news articles, and articles and opinions written about him.

Alan Lefebvre, a past president of the Nevada Bar Association, said his reaction to the letter was to “cut up my ABA bar card into 30 pieces” after nearly 40 years of membership.

“It would be impossible for a reviewer to challenge such a qualified nominee’s abilities unless he was yoked with an ideologue’s agenda,” Lefebvre said in an emailed statement.

VanDyke, defending himself further, said that as a solicitor general in Nevada and Montana he hadn’t always had the ability to choose his cases.

Pushback on ABA

Conservative groups like the Judicial Crisis Network and Article III Project, which aim to promote Trump judicial nominees, drew attention to the ABA evaluator in charge of VanDyke’s rating. They said she was biased because she once donated to his political opponent in a race for a seat on the Montana Supreme Court.

The member of the ABA Standing Committee on the Judiciary who spearheaded VanDyke’s initial evaluation donated $150 to the incumbent justice VanDyke challenged in the 2014 campaign, Matthew Cimento, an ABA spokesman, confirmed to Bloomberg Law.

After her initial evaluation yielded a “Not Qualified” rating, it was reviewed and voted on again, per committee procedure, he said.

Carrie Severino, chief counsel and policy director of the Judicial Crisis Network wrote in a statement, that the ABA has a history of “bias against conservatives” but has “really outdone itself” with VanDyke.

With the controversy at fever pitch, Hubbard issued an emailed statement saying the ratings are non-partisan. He highlighted that nearly all of the 264 ratings the committee has conducted during the Trump administration have been favorable.

“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,” Hubbard said in the statement.

Sen. Sheldon Whitehouse, a Rhode Island Democrat and Judiciary Committee member, suggested calling the ABA to testify about its reasoning on establishing ratings could be a solution.

“I’m no great fan of the ABA process myself,” said Whitehouse. “But I can’t help but note that colleagues on both sides of the aisle don’t hesitate to herald the ABA process when it is supportive of a nominee that they would like to see get on the court.”

Support for Rating

Liberal groups, however, said the rating was consistent with their criticisms.

“He has chosen time and time again to make sure that he’s on the front line of really some of these extreme legal arguments and movements,” Lena Zwarensteyn, fair courts campaign director for liberal advocacy group The Leadership Conference on Civil and Human Rights, said of VanDyke. It laid out its position in a letter opposing VanDyke’s nomination.

Environmentalists also have lodged criticisms. VanDyke’s record on environmental issues “calls into question his ability to serve as an impartial judge in any environmental case,” League of Conservation Voters President Gene Karpinski said in a recent letter to Senate Judiciary Committee members.

In VanDyke’s roles as the top state litigator in Nevada and Montana, he opposed the Obama-era Clean Power Plan, the Clean Water Rule, and protections for sage grouse.

(Updates throughout with new details from hearing, senators and ABA.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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