Wednesday, October 30, 2019

Judicial Nominees should only meet with ABA investigators if a court reporter is present


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:

Lawrence VanDyke brought to tears because of the shameful and false accusation by the @ABAesq that he holds animus toward the LGBT community. Thank you to @SenHawleyPress for highlighting this injustice. The ABA has lost all credibility for trying to destroy this good man's life.

— Gregory T. Angelo (@gregorytangelo) October 30, 2019

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.

As a member of @ABAesq and chair-elect of one of its sections, I urge the ABA to withdraw this letter and rating and pledge to improve its process of evaluating judicial nominees to ensure the process is fair and impartial.

— Chris Walker (@chris_j_walker) October 30, 2019

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.