Amer­i­can Bar As­so­ci­a­tion ac­cused of bias

Group ques­tions judge’s ‘not qual­i­fied’ rat­ing

The Washington Times Weekly - - Politics - BY ALEX SWOYER

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.

Lawrence VanDyke

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