A federal appeals court nominee conservatives charge was “smeared” by a controversial American Bar Association rating cleared the Senate Judiciary Committee Thursday.
Justice Department lawyer Lawrence VanDyke received a “not qualified” rating by the ABA, which called him “lazy,” “arrogant,” and “an ideologue” in a letter to the Senate Judiciary Committee. Nine of President Trump’s nominees have received “unqualified” marks from the ABA.
Asked in his October confirmation hearing about the substance of the report, including allegations that he would treat members of the lesbian and gay community unfairly, VanDyke broke down in tears and said that he was “disappointed, shocked, and hurt” to read the group’s remarks. During the hearing, Sen. Josh Hawley expressed outrage that VanDyke’s lead ABA evaluator donated to his political opponent in a 2014 state Supreme Court race, which he said “probably explains the total ad hominem nature of this disgraceful letter.”
“It’s been shameful seeing the ABA’s shenanigans on this case,” Carrie Severino of the Judicial Crisis Network told the Washington Examiner, noting the “personal smears” levied against VanDyke and Patrick Bumatay, another Trump 9th Circuit nominee whom the committee cleared today. “They will both make excellent judges.”
The ABA ratings system is often chided as political. “For a long time, we’ve been talking about the problems with the politicization of the ABA and how they should not be treated as a neutral interest group in this process,” said Severino. “It’s very obvious that their efforts to appear bipartisan were covering for a serious ideological agenda.”
According to Severino, “What we’ve seen from the Democrats is a weaponization of procedure,” such that every nominee requires a cloture vote, which in turn requires several more days of process for that vote to ripen, then 30 hours of additional time allowed for debate. “Practically speaking,” she said, this “almost never” results in any further debate about the nominee. “There will be 30 hours of quote, ‘debate,’ but it will be the exception rather than the rule that any of that time is spent on a nominee.”
Prior administrations were known to give the names of nominees to the ABA before they had been publicly announced, lending the organization what Severino described as “a quasi-governmental role” in evaluating the nominees. This ended under the Bush administration “precisely because of the politicization of the ABA and the fact that they were functioning more as a special interest group,” she said. Like Bush, Trump has sought to “not give them a privileged role in the process.”
The ratings have lost credibility “from everyone,” said Christopher Kang, co-founder and chief counsel for the judicial advocacy group Demand Justice, who worked on judicial nominations for the Obama White House, in a report this month.
The ABA denies that its ratings are biased. “The evaluations are narrowly focused, nonpartisan, and structured to assure a fair and impartial process,” ABA Standing Committee on the Federal Judiciary Chairman William Hubbard wrote in a statement last month..
Senate Majority Leader Mitch McConnell has fought to eliminate a backlog of federal judicial nominees this year, with more votes set for early December. Seven of 13 total appeals courts now have a majority of judges appointed by Republican presidents. Now that they are out of committee, nominations for VanDyke and Bumatay will head to the floor, where they will be in a queue for a vote. “We do expect they will be confirmed,” Severino said.
