- - Wednesday, November 20, 2019

For decades now, the American Bar Association has tarnished the value of its ratings of judicial nominees. By engaging in partisan politics rather than providing accurate assessments of conservative-leaning nominees, the ABA raises questions about the need for its rating system. The ABA’s latest political hit job is Lawrence VanDyke, President Trump’s nominee to the Ninth Circuit Court, whom the ABA rated as “Not Qualified.”

The ABA’s rating stands in sharp contrast to Mr. VanDyke’s stellar record. He graduated magna cum laude from Harvard Law School, where he served as the editor of the Harvard Law Review. He then went on to become solicitor general for both Montana and Nevada, and has earned the respect of his peers across the country.

How the ABA settled on the “Not Qualified” rating for Mr. VanDyke warrants special attention because it showcases an entrenched political bias at the organization.


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The first red flag about this rating is the ABA’s choice of an evaluator for Mr. VanDyke. As part of each review process for judicial nominees, the ABA committee assigns an evaluator to conduct interviews and compile information about the nominee. For Mr. VanDyke’s review, Marcia Davenport was selected as the evaluator, despite her obvious conflict of interest. In 2014, she donated to Mr. VanDyke’s political opponent in the Montana Supreme Court race.

The second red flag is an even greater cause for concern. Ms. Davenport’s labor yielded a flimsy two-page letter, in which the ABA made vague and unsubstantiated criticisms of Mr. VanDyke. Most notably, the letter said — without specifics — that Mr. VanDyke is “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” and that he “lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.”



Ms. Davenport conducted 60 interviews, and the letter betrays the organization’s bias by conceding “the interviewees’ views, negative or positive, appeared strongly held on this nominee.” So, to confirm, there were, indeed, positive comments offered about Mr. VanDyke in the interviews. The ABA, however, saw fit to include none of those positive comments. To turn the accusation of Mr. Van Dyke around, the one-sidedness of the letter demonstrates a complete lack of “commitment to being candid and truthful” on the part of the ABA — not the nominee.

The letter further attacks Mr. VanDyke’s character, with the vague suggestion that he might not be “fair” to persons who are “gay, lesbian, or otherwise part of the LGTBQ community.” Without any examples or specifics, the accusation is a weak effort to sully his character.

When asked during his hearing about the allegation that he might not treat certain people fairly on the basis of their sexual identity, Mr. VanDyke teared up and gave a heartfelt response: “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.”

The ABA’s intentions to discredit and knock Mr. VanDyke out of the running for this position on the Ninth Circuit are hardly new. A decade ago, in 2009, Adam Liptak of The New York Times reported on a study of the American Bar Association that demonstrated political bias. The study found that “Holding all other factors constant, those nominations submitted by a Democratic president were significantly more likely to receive higher A.B.A. ratings than nominations submitted by a Republican president.”

The ABA’s treatment of Mr. VanDyke is part of a pattern of behavior. Counting Mr. VanDyke’s “not qualified” rating, the ABA has given nine of President Trump’s nominees the lowest rating. President Obama’s nominees fared much better, with precisely zero earning a “not qualified” rating. With George W. Bush, the ABA found eight of his nominees deserving a “not qualified” rating — fully twice as many as Bill Clinton’s presidency saw. The numbers tell a powerful story: The single greatest indicator of whether or not a nominee will receive a “not qualified” rating is the political party of the president making the nomination.

The ABA’s handling of Mr. VanDyke’s review process shows the organization itself deserves a “Not Qualified” rating when it comes to evaluating the suitability of judicial nominees. 

• Jenny Beth Martin is the honorary chairman of Tea Party Patriots Action.

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