Wednesday, Nov. 27, 2019 | 2 a.m.
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Senate Republicans claim the American Bar Association conducted a grossly biased and unfair evaluation of Lawrence VanDyke, President Donald Trump’s nominee for the 9th U.S. Circuit Court of Appeals, before concluding that VanDyke was not fit for the position.
But the way they’re acting on their accusations is irresponsible and potentially damaging. They’re shooting the messenger instead of making any effort to get to the bottom of the situation.
The attacks on the ABA came during VanDyke’s recent appearance before the Senate Judiciary Committee to determine whether his nomination would be sent to the full Senate for a floor vote. The committee’s discussion focused largely on the ABA’s report on VanDyke, which was scathingly negative. The evaluator wrote that interviewees described VanDyke, the former Nevada solicitor general, as “arrogant, lazy, an ideologue,” and expressed concerns that the conservative nominee would be unfair to LGBTQ litigants.
That information should have alarmed committee members from both parties, whose obligation is to ensure the benches are occupied by judges who put the rule of law above their personal political leanings. How many years have Republicans been howling about activist judges, after all?
But Sen. Josh Hawley, R-Mo., exemplified the Republicans’ response by branding the report as a “shameful exercise in political bias” and calling for the White House to quit allowing the ABA to evaluate nominees.
“I will say that I will no longer consider the ABA’s recommendation on any nominee for any position for any reason,” Hawley huffed. “They are … a special interest group. They should be treated like any other special interest group.”
This attitude is not only abjectly hypocritical — you can bet the farm that Hawley and his ilk would welcome recommendations from the right-leaning Heritage Foundation — but it could set a dangerous precedent. If the ABA were cut out of the process, it would eliminate an important tool in determining candidates’ fitness. With that tool out of the way, the White House would have an easier time hiding its nominees’ flaws from lawmakers and the American people.
The ABA’s evaluations offer Americans one of the most comprehensive and unvarnished looks they’ll get at judicial nominees. The reports are based on extensive research of nominees’ legal work and, as shown by the VanDyke evaluation, interviews with a large array of legal professionals who are familiar with the candidates.
The ABA has been evaluating nominees since the Eisenhower administration, despite periodic complaints from conservative presidential administrations and congressional lawmakers that the organization is biased against the right.
Muzzling the organization would be entirely out of line.
The responsible way for Republicans to proceed would be to either call the ABA and its evaluator on the carpet to answer questions, or suggest another organization to conduct the reviews.
And to be clear, there are questions that can and should be asked regarding the VanDyke report. The evaluator gave campaign contributions to an opponent of VanDyke’s when he ran for a position on the Montana Supreme Court, for instance, and several interviewees have come forth saying they were asked cursory questions and their input was disregarded.
So Republicans have some justification to look into the report.
Likely, though, that’s the last thing they’d want to do, because it could reveal more details about the concerns regarding VanDyke’s comportment, his experience, his grasp of the law and especially his attitude about the LGBTQ community.
The bottom line is that the nation relies on the ABA to set the ethical behavior of lawyers. If the organization isn’t competent to police attorneys, then the Republicans need to prove it — which they haven’t come close to doing yet.
If the GOP can’t prove its point, then the ABA’s research and recommendations for lifetime judicial appointments deserve weight in the confirmation process.
Soon, perhaps as early as next week, VanDyke’s nomination will go to the floor of the Senate. If Republicans continue trying to silence the ABA, they’ll be tearing asunder an institution with a long history of providing expert guidance on potential judicial candidates — and will be showing that they believe in hiding information about those candidates from Americans.
