The American Bar Association recently embarrassed itself. It rated Lawrence VanDyke “not qualified” to serve as a judge on the 9th Circuit Court of Appeals. Even a cursory review of VanDyke’s resume renders that judgment absurd, and a ‘yea’ vote for him in the Senate Judiciary Committee would put the ABA in its place.
VanDyke graduated near the top of his Harvard Law School class and served on its prestigious Law Review. He served as a law clerk for a judge on the U.S. Court of Appeals for the D.C. Circuit, one of the most difficult-to-obtain clerkships in the country. He litigated at one of the nation’s premiere law firms. He served as the solicitor general — that is the top appellate lawyer — of not one, but two, states in the 9th Circuit. He has argued two dozen appeals and briefed hundreds more, including many in the Supreme Court. And VanDyke currently serves as a high-level appointee in the Department of Justice. If VanDyke is not qualified for an appellate judgeship, then there’s no such thing as being qualified.
What, then, led the ABA to deem him “not qualified”? Well, the ABA claims that based on “sixty interviews,” he is “arrogant, lazy, an ideologue, and lacking in knowledge.” Since the ABA published these scurrilous accusations, the process and substance of its evaluation have been revealed as a sham.
First and most alarmingly, the lawyer running the ABA’s vetting process was a donor to VanDyke’s election opponent when he ran for justice of the Montana Supreme Court. No serious vetting process would allow such a conflict of interest, and indeed the ABA’s own internal rules prohibiting such conflicts were seemingly ignored in this instance.
Second, it has come to light that many interviewees offered glowing reviews of VanDyke, but their evaluations were cast aside, as were those of many other prominent lawyers who were not consulted at all. In a letter to the Senate Judiciary Committee, 42 of his Harvard classmates praised VanDyke’s “varied experience,” reported he was and still is “known for working hard,” and called him “gifted, … honest, patient, kind, and respectful.”
In another letter, 20 prominent members of the Supreme Court bar, including former Judge Michael W. McConnell and former U.S. Solicitor General Paul Clement, rated VanDyke as “fair, smart, [and] generous” and commended his “keen intellect” and integrity. Fifteen of his co-workers in the Nevada attorney general’s office wrote of his “renowned” advocacy and his willingness to tackle “challenging or onerous” work. Forty-three members of the Nevada bar who know VanDyke well called him “fair, honest, and honorable” and praised his “deep and broad experience.”
These glowing reviews of VanDyke, coming from a vast array of professional and personal contacts over the years, directly contradict the ABA’s allegations. It is, of course, possible that VanDyke has a few detractors. After all, he ran a heated campaign for the Montana Supreme Court and, as the top appellate lawyer in two states, he often handled contentious cases that raised political and personal passions. But to turn those few detractors’ gripes into a wholesale indictment of a person’s career and character reveals much more about the ABA’s fitness as an evaluator than it does about VanDyke’s qualifications as a judicial nominee.
Third, there’s something fishy about the ABA’s statement that VanDyke “would not say affirmatively that he would be fair to any litigant before him.” Notice the squirrely language. The ABA fails to allege that VanDyke stated he would not treat all litigants fairly, but rather asserts that he did not affirmatively volunteer it during his interview. But maybe that’s because the ABA’s vetter never asked him a question that might have elicited such a response. When Sen. Mike Lee of Utah directly asked VanDyke whether he would be “fair and impartial to all litigants before you,” VanDyke unhesitatingly responded, “absolutely.” And when Sen. Josh Hawley of Missouri further pressed the issue, VanDyke stated: “It is a fundamental belief of mine that all people are created in the image of God and they should all be treated with dignity and respect.”
Lawyers are known for their verbal gymnastics, but the ABA’s contortions here border on the unethical.
I have known VanDyke since my first year of law school. We have interacted professionally and personally with regularity since then. For those of us who really know VanDyke — know him far better than the ABA’s vetter — the ABA’s accusations were as stunning as they were defamatory.
The problem is that, although the ABA was provided with hundreds of names as references for VanDyke, including mine, it contacted relatively few of us. Had the ABA asked, I would have told them this: If I were permitted only one word to describe VanDyke as a lawyer, it would be “hardworking,” quite the opposite of “lazy.” Indeed, I vividly remember that it was VanDyke who, as a second-year law student, shared with me and other first-year law students his secret for academic success: Work, work some more, and then work harder. If I were permitted a second word to describe VanDyke, it would be “humble,” quite the opposite of “arrogant.” I have never heard him brag about his many accomplishments. I have never heard him express an entitlement to anything. I have never heard him be dismissive of colleagues, clients, or opponents.
VanDyke is a good and gracious man and a great lawyer. He deserved better from the association that purports to represent lawyers. Shame on the ABA. VanDyke will make an excellent judge, and the Senate should confirm him quickly.
Jesse Panuccio, a former acting associate attorney general, attended Harvard Law School with VanDyke and has known him throughout his professional career.
