Trump's latest judicial pick, Lawrence VanDyke, is an ideologue whose colleagues described him as 'arrogant' and 'lazy' but he'll likely be confirmed anyway.
One of Trump's judicial nominees spent yesterday crying crocodile tears in front of the Senate Judiciary Committee after the American Bar Association rated him "not qualified" and questioned his commitment to judging cases with LGBTQ litigants fairly.
Lawrence VanDyke, who Trump has nominated to the Ninth Circuit Court of Appeals, was the subject of a remarkable letter from the ABA, which normally provides staid assessments of attorneys nominated for the federal bench. The ABA interviewed 43 lawyers and 16 judges, and received reports that VanDyke was "arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules."
The ABA letter also said that some people they interviewed raised concerns about whether VanDyke "would be fair" to people in the LGBTQ community and noted that VanDyke, when interviewed, "would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community." This seems to be what caused VanDyke's tears yesterday. When asked about the issue, he said he hadn't said that and that "It is a fundamental belief of mine that all people are created in the image of God and they should all be treated with dignity and respect."
There's a right-wing attempt to rehabilitate Van Dyke by pointing out that when he was asked if he would represent LGBTQ litigants fairly, he answered that he would represent all litigants fairly. That's not an answer to the question. That's a dodge.
And the LGBTQ community has good reason to be concerned about VanDyke. At every turn, he's backed anti-LGBTQ measures. In 2004, while attending law school, he wrote an op-ed saying that same-sex marriage would "hurt families, and consequentially children and society." When he was solicitor general of Montana, he signed on to briefs arguing in favor of bans on same-sex marriage. He joined an amicus brief on the side of a conservative Christian photographer who didn't want to shoot a wedding for a same-sex couple.
Some of VanDyke's conservative supporters have smugly pointed to the fact that VanDyke once filed a brief on behalf of "Gays and Lesbians for Individual Liberty" in a case before the Supreme Court, Christian Legal Society v. Martinez. VanDyke brought that up as a source of pride under questioning from Sen. Richard Durbin (D-IL) as well.
Neither VanDyke nor his supporters are being truthful about his role in that case, though. Yes, he represented a group of lawyers who said they were gays and lesbians for individual liberty. However, those lawyers — and VanDyke — backed the Christian Legal Society in that lawsuit against the University of California. The Christian Legal Society wanted the right to block LGTBQ students from joining while still receiving school funds. Arguing on behalf of a group that wants government money to flow to organizations that won't let LGBTQ people join is hardly a ringing endorsement of gay rights.
Even is VanDyke's position on LGBTQ issues were misstated by the ABA, that doesn't address the fact that people who have worked with him found him to have "missed issues fundamental to the analysis" of cases and that "his preparation and performance were lacking in some cases in which he did not have a particular personal or political interest."
Sometimes people try to paint the ABA as a bunch of left-leaning zealots who don't like approving conservatives, but that's not true. Indeed, there's a credible argument to be made that the ABA's rating system, intentionally or not, favors keeping the judiciary white and male.
A historical look disproves the theory the ABA tilts against judges nominated by conservative presidents. Of the three presidents who didn't have any judges rated "not qualified," two are Republicans: Presidents Richard Nixon and George H.W. Bush. President Obama is the lone Democrat with that honor.
Yes, Trump has had nine of his appointees rated "not qualified," which is on pace to be the most ever. (President Dwight Eisenhower also had nine judges rated "not qualified," but it took him seven years to get there.) However, that's because Trump has nominated deeply unqualified people to the bench.
Sometimes, those nominees are not qualified because of views and temperament. Take Leonard Steven Grasz, for example, who the ABA rated "not qualified." Trump nominated Grasz to the Eighth Circuit Court of Appeals, a post for which he was ultimately confirmed. Grasz called the legacy of the Supreme Court's decision in Roe v. Wade "morally bankrupt." He's virulently anti-LGTBQ, going so far as to defend "conversion therapy," which tries to force LGBTQ people to be straight. The ABA talked to numerous members of the bar who said Grasz was "gratuitously rude" and "inappropriately aggressive."
There's also Charles Goodwin, who now sits on the federal bench in Oklahoma. The ABA rated him "not qualified" because of his bad habit of frequently failing to show up to his job as a magistrate until mid-afternoon, raising concerns about whether he would have a solid enough work ethic to sit on the federal bench.
Sometimes, those nominees are not qualified because they literally don't have enough work experience. The just-confirmed Justin Walker, who now has a lifetime seat on the federal bench for the Western District of Kentucky, had never tried a case all the way to verdict or judgment in the 10 years since he left law school, and the ABA typically looks for at least 12 years of trial or litigation experience. He did, however, zealously defend Brett Kavanaugh during his confirmation hearing, which is likely why he got the nod from Trump.
Similarly, Jonathan Kobes, now on the Eighth Circuit, was "unable to provide sufficient writing samples of the caliber required" to show the ABA he was capable of being a federal appellate judge. The writing samples he did provide were "either from [his] early days as a lawyer, relating to relatively simple criminal law matters, or from his recent legislative work for Senator [Mike] Rounds" of South Dakota. The ABA concluded that none of the writing they reviewed was "reflective of complex legal analysis," but that didn't stop Republicans from confirming him.
Now, conservatives are calling for an investigation into the ABA, declaring that nominees shouldn't speak to the ABA unless there is a court reporter present and saying the ABA no longer deserves a "seat at the table" when it comes to judicial nominations. It's unclear what that last part even means given that the Trump administration has already refused to give the ABA special access to background information on nominees. The ABA now gets the same information, at the same time, as any other interested group.
The way this entire endeavor is playing out looks a lot like everything else in the Trump era. A neutral group raises concerns about anyone related to Trump and the immediate response is to attack the group as driven only by hatred of Trump. It requires a worldview where every institution — the intelligence community, the news, the legal profession — is out to get Trump, rather than acknowledging any legitimate concerns. It allows people like Trump and VanDyke to frame themselves as victims, believing that any consequences for their actions are unfair. Meanwhile, the GOP-controlled Senate will continue to confirm anyone Trump nominates, no matter how unqualified they are.
Published with permission of The American Independent Foundation.