The American Bar Association has shown bias so extreme that some of its leaders are leaving or complaining of their evaluation of Ninth Circuit nominee Lawrence VanDyke. While some of their not-qualified rating is at best subjective and biased, some of it seems to be based on an outright subversion of what he said:
The ABA letter falsely claims that Lawrence VanDyke "would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community." In fact, he flatly told the secret ABA evaluator (Marcia Davenport) that he would be fair to all litigants.— Mike Davis (@mrddmia) October 30, 2019
Professor Josh Blackman describes it thus:
When I read the Letter, I assumed the following exchange.— Josh Blackman (@JoshMBlackman) October 30, 2019
ABA: Will you be fair to the LGBT community?.
VanDyke: I will be fair to everyone.
ABA Letter: VanDyke "would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBT community." https://t.co/GW8820zfcH
Professor Chris Walker makes a couple great points on this:
The most egregious -- and clearly fabricated -- part of the letter is the allegation of what he said during the ABA interview: "Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community."— Chris Walker (@chris_j_walker) October 30, 2019
Even if the “clearly fabricated” statement were true, the ABA committee should have reached out and would have heard:
The members of the committee, for instance, should have reached out to VanDyke again to make sure he had a chance to confirm his position before the ABA publicly attributed that statement to him. Indeed, if they had done so, this is what they would have heard: pic.twitter.com/I1uC8sHj3I— Chris Walker (@chris_j_walker) October 30, 2019
And to be clear it was not one “fabricated” answer but the whole tone of the letter:
But the overall tone and approach to this letter read like an attack piece written by someone with an axe to grind, instead of an independent, objective assessment of the nominee's record, credentials, and character.— Chris Walker (@chris_j_walker) October 30, 2019
And Professor Walker is an ABA leader.
The reality is the incident is not ultimately going to be about Lawrence VanDyke but about the ABA. According to The Resurgent, the lead ABA “investigator” donated to his former opponent in a judicial election:
The American Bar Association has fallen to a new low in its hit job against well qualified Ninth Circuit Court Nominee Lawrence VanDyke. VanDyke has been the solicitor general in two different states — Nevada and Montana. He is highly regarded in the legal profession and well qualified to everyone except the ABA.
But there is a there, there.
The ABA has reviewers who decide if nominees are well qualified or unqualified. In 2014, VanDyke [ran] for the Montana Supreme Court against Michael Wheat. One of Wheat’s donors and supporters against VanDyke turns out to be Marcia Davenport. Who is she?
Davenport was the lead evaluator for the ABA on VanDyke.
Any objective observer would agree with the RNLA’s letter that VanDyke is well-qualified. It seems that Professor Walker has it correct on the “clearly fabricated” answer on LGBT litigants. The reality is the ABA evaluation calls into question not VanDyke's qualifications to be a judge but the ABA’s qualifications to objectively rate nominees.
The time has come for the White House and the Senate, to suspend the unique access the ABA has until a thorough investigation and review is undertaken that explores how it conducts its affairs. https://t.co/aYd103A714— Mike Lee (@SenMikeLee) October 30, 2019