American Bar Association accused of bias
Group questions judge’s ‘not qualified’ rating
A conservative group has accused the American Bar Association of breaking its own rules to undermine one of President Trump’s judicial nominees and is calling for a criminal probe.
The ABA’s “not qualified” rating of Lawrence VanDyke, nominated to the 9th U.S. Circuit Court of Appeals, characterized the nominee of being anti-gay, specifically saying the attorney would not say that he would be fair if confirmed as a judge to all litigants before him, “notably members of the LGBTQ community.”
The accusation was flatly denied by Mr. VanDyke on last Wednesday during his confirmation hearing, saying he never said that during his interview with the ABA evaluator, who had donated to the nominee’s political opponent in 2014 when he ran for the Montana Supreme Court — a point Republican senators were eager to make.
“That absolutely should be investigated because the ABA has potentially made a false statement to Congress in violation of 18 U.S.C. Section 1001, which says you can’t provide materially false statements to Congress — it’s a felony,” said Mike Davis, president of the Article III Project, a group that backs Mr. Trump’s judicial nominees.
Mr. Davis also worked as former chief counsel for nominations under Sen. Chuck Grassley when the Iowa Republican was chairman of the Judiciary Committee. Mr. Davis says it’s time the ABA isn’t given special access to vet the president’s judicial picks.
The pushback comes after the ABA’s Standing Committee on the Federal Judiciary is accused of violating its own evaluation standards by not having a second evaluator interview Mr. VanDyke.
Under the organization’s policy detailing the appointment of a second evaluator, the rule says, “The second evaluator also conducts a new interview of the nominee.”
But sources familiar with the process say Mr. VanDyke was never granted a second interview.
They also say the first evaluator, given the political contribution to Mr. VanDyke’s opponent when he ran for the Montana Supreme Court, should have recused himself under another one of the ABA committee’s standards.
That one reads: “No Committee member, including the Chair, shall participate in the evaluation or vote on the rating of a nominee in any instance in which such participation would give rise to the appearance of impropriety.” It does not, however, specifically detail withdrawal when having donated to a political rival.
“The ABA is a liberal, dark money group, fronting for trial lawyers who donate millions of dollars to Democrat politicians. The ABA’s evaluation of nominees is fatally flawed,” Mr. Davis said.
The report on Mr. VanDyke’s credentials to be on the federal bench was also dropped less than 24 hours before his hearing, but, according to yet another one of the ABA’s policies, reports are to be handed over to the Judiciary Committee at least 24 hours before a confirmation hearing.
Because the Trump administration has moved swiftly on judicial nominees, this deadline is not always met.
The American Bar Association’s William Hubbard told The Washington Times the evaluations are nonpartisan.
“The Standing Committee provides the Senate, the Administration and the public with candid, confidential assessments of the nominee’s professional qualifications based on interviews with judges, lawyers, and other professionals who know or who have worked with the nominee,” he said.
Another official with the ABA denied violating any of the organization’s standards, saying the second evaluator did not conduct an interview with Mr. VanDyke due to time constraints.
Republican lawmakers called the evaluation “shameful” during Mr. VanDyke’s hearing earlier last week before the Senate Judiciary Committee and blasted the ABA for its perceived liberal bent.
“The ABA has essentially called you a homophobic bigot. It’s a deeply serious accusation with no apparent basis in fact,” Sen. Mike Lee, Utah Republican, told the nominee.
Sen. Josh Hawley, Missouri Republican, said the White House shouldn’t give the ABA special access any longer, urging the counsel’s office to refuse to make the president’s judicial nominees available for interviews.
“I think that should stop, and I will say that I will no longer consider the ABA’s recommendation on any nominee for any position for any reason,” he said.
“They should be treated like any other special interest group, and their shameful performance in this letter I think seals the deal beyond any question in my mind,” he added.
During the hearing, Sen. Sheldon Whitehouse, Rhode Island Democrat, said the concerns over the ABA evaluation should not be laughed off and suggested the committee probe further into the matter.
“We have a responsibility here,” Mr. Whitehouse said. “We can resolve this by bringing in the ABA folks and letting them explain what the basis is for these charges.”
Mr. VanDyke is an attorney with nearly 14 years of experience. He served as solicitor general for both Montana and Nevada.