Jurisprudence

A Crying Shame

A Trump nominee’s reaction to being held accountable for his long record of discrimination should make us all weep.

Lawrence VanDyke in Washington on Wednesday.
Lawrence VanDyke in Washington on Wednesday.
Still from video by (c) 2019 Thomson Reuters

On Wednesday, Lawrence VanDyke, Donald Trump’s nominee for a seat on the 9th U.S. Circuit Court of Appeals, made news by crying at his confirmation hearing. He began weeping after he was confronted with a letter from the American Bar Association that had deemed him “Not Qualified,” a ranking based on 60 interviews with 43 lawyers, 16 judges, and one other person who had worked with him. In their dealings with VanDyke, these individuals found him to be “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” When Missouri Sen. Josh Hawley asked him, sympathetically, about the ABA concerns over whether “VanDyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community,” the nominee sobbed openly. Despite his years of anti-LGBTQ writings and advocacy, VanDyke was the one who felt persecuted. Did he believe, Hawley asked, that he would treat LGBTQ litigants unfairly? “I do not believe that,” VanDyke said. “It is a fundamental belief of mine that all people are created in the image of God,” he insisted. “They should all be treated with dignity and respect.”

What, exactly, does VanDyke have to cry about? That someone hurt his feelings? That after a career spent maligning and excluding gay Americans from everyday civic life, he feels entitled to glide onto an Article III court without answering for any of it? For his entire career, he has been the one defending invidious discrimination, not suffering it. But upon being asked to answer for his anti-gay work, VanDyke did what many anti-LGBTQ advocates do today: He played the victim. He literally cried. He talked about God. And he centered his own pain. Imagine the indignity of having to answer for your years of tireless toil in opposition to marriage equality, civil rights protections for LGBTQ Americans, and the rights of gay students to join school clubs! How awful.

Along with the crying, VanDyke tried to explain that his views have changed since he penned a 2004 op-ed at Harvard Law School insisting that same-sex marriage “will hurt families, and consequentially children and society.” He also distorted his more recent advocacy work defending anti-gay discrimination. In 2010, he filed an amicus brief in Christian Legal Society v. Martinez on behalf of Gays and Lesbians for Individual Liberty—a small group that brings together “classical liberals, market liberals, limited-government libertarians, anarcho-capitalists, and objectivists” to oppose nondiscrimination laws. VanDyke’s brief argued that student groups at public universities have a constitutional right to discriminate against gay students. On Wednesday, though, he was unwilling to say out loud that he had joined a group to side with religious liberty against gay students, so he pretended to have been for both.

What was VanDyke and his not-qualified rating and record of anti-gay advocacy doing in front of the Senate, anyway? Let’s pause to remember that Donald Trump could have selected a fit conservative for this seat. (Indeed, VanDyke testified alongside Patrick Bumatay, who was rated “Qualified” by the ABA, has no history of inflammatory remarks and is openly gay himself.) But instead, Trump picked someone who, by the accounts of 60 interviewees, “lacks humility, has an ‘entitlement’ temperament, does not have an open mind and does not always have a commitment to being candid and truthful.”

VanDyke is the ninth judge Trump has nominated who has received such a rating from the ABA, which has been conducting evaluations of judicial nominees since 1953 (five of these “not qualified” judges have been confirmed, two were denied, and, like VanDyke, one’s nomination is still pending). It claims the assessments are nonpartisan evaluations and based on three metrics: professional competence, integrity, and judicial temperament. Of the 255 evaluations the ABA standing committee has completed for Trump nominations, 97 percent have been rated “qualified” or “well qualified.” Having assessments from local counsel and judges who actually work with the nominee is generally useful, which is why Senate Judiciary Chairman Lindsey Graham continues to say the ratings are helpful.

But at this most recent confirmation hearing, Republicans decided they’d had enough of the ABA. As Utah Sen. Mike Lee insisted on Wednesday, any group that doesn’t rate 100 percent of Donald Trump’s judicial picks as qualified is by definition biased and useless. Or as Lee put it, “The ABA has essentially called you a homophobic bigot … with no apparent basis.” Never mind that as Montana solicitor general in 2013, he advocated for the state to join two abhorrent briefs arguing against marriage equality that disparaged LGBTQ families, suggesting legal recognition of same-sex partnerships would harm children. The first claimed that a prohibition on same-sex marriage was necessary to promote “optimal childrearing” because gay couples “cannot provide” the optimal “family structure” (the position he claimed to have disavowed after 2004). And the second alleged that states “may rationally conclude” that “it is better” for parents to have a “biological” connection to their children.

Why does the Trump administration believe that someone who has done nothing but push fringe legal notions into the mainstream is fit to serve on a federal appellate bench? It’s a puzzler. But unlike some of Trump’s nominees, VanDyke at least has legal experience on which he can be judged. He served as solicitor general of Montana and Nevada, in 2013–14 and from 2015–18, respectively. While he served as Montana’s solicitor general, he spent much of his time working on amicus briefs filed in other states, giving us a clear sense of his ideology. Many of those briefs dealt with constitutional challenges to state and federal gun laws, abortion, and same-sex marriage. (VanDyke has a knack for controversy: He also penned a discredited article arguing that “intelligent design,” a form of creationism, should be taught in public schools. He did it in this century!)

In 2013, VanDyke co-authored a brief in an abortion case seeking the wholesale reconsideration of Roe v. Wade. As the Las Vegas Sun editorialized this week about his extreme tendencies, “VanDyke was so gung-ho about joining Montana into one politically charged case that he committed to it without even bothering to review the legal document at issue.” The Sun went on to note that “emails from Montana also showed that VanDyke worked hand-in-hand with the Federalist Society, the hugely powerful conservative legal organization, from which VanDyke asked for help while ‘having trouble coming up with any plausible (much less good) arguments’ in a guns case.” And while he served as Nevada’s solicitor general, VanDyke was not even admitted to the state bar, even after a temporary two-year waiver expired.

But Republican senators did not dig into most of this, nor did they probe VanDyke’s record of extreme and punitive anti-gay, anti-women, pro-gun advocacy on Wednesday. Rather, they took turns bashing the ABA for its scathing assessment. To discredit the group’s rating, Republicans drew from a playbook laid out by Mike Davis, a former clerk for Justice Neil Gorsuch who lobbies for Trump’s judicial nominees, on Twitter Tuesday night. Lee accused the ABA of having “lost its credibility as a neutral arbiter” and operating as a “special interest group.” He urged the White House “to suspend the unique access that the American Bar Association has” to nominees “until such time as a thorough investigation and review is undertaken to inquire into” its investigative methods. Hawley zeroed in on the fact that Marcia Davenport, the ABA’s chief evaluator of VanDyke, donated $150 to his opponent in a 2014 Montana Supreme Court race.

Let’s stipulate that Davenport was not an ideal candidate to lead the ABA’s assessment of VanDyke. But let’s also remember that after Davenport filed her initial report, a full committee of 15 ABA members supported, by majority vote, the rating of “not qualified.” And that after this vote, the organization conducted a supplemental review and held a second vote, which led to the same result. And that 60 interviewees delivered the opinion that VanDyke was an entitled partisan.

The GOP’s talking points reek of cynical hypocrisy. Davis complained on Tuesday that the ABA is a “dark-money group.” That is an unusual description of an organization that boasts more than 400,000 dues-paying members, since a typical “dark-money group” receives secret donations from a few high-dollar donors. In fact, Davis’ own Article III Project certainly fits that definition—as does the Judicial Crisis Network, another organization that lobbies for Trump’s nominees, including VanDyke. In fact, VanDyke himself has reaped the benefits of dark money. The same year that Davenport donated her $150 to his opponent for the Montana Supreme Court, VanDyke was boosted by hundreds of thousands of dollars in dark money spending on his candidacy. (He still lost badly.) Apparently Davis’ attack on a storied legal institution and a $150 donation from a single member, is not, in his view, compromised by the multimillion-dollar dark money campaigns at work to goose spectacularly ill-qualified nominees to lifetime appointments.

It is more than likely that the Senate will confirm VanDyke—just as it has confirmed other nominees who are flagrantly partisan, or lacking in judicial temperament or experience. These are the qualities the president seeks in his judges, and these are the judges that Senate Republicans want. Yes, it will further degrade the institution of the judiciary to put objectively unqualified zealots on the bench. But degrading the institution is part of the game plan. Donald Trump has told us on many occasions of his contempt for an independent judicial branch. The mystery isn’t so much why VanDyke cried when confronted with his own legal legacy, but why he didn’t embrace it. After all, he probably wouldn’t have been sitting under the klieg lights in the first place if he hadn’t spent his career trying to strip rights from others.

Correction, Nov. 1, 2019: This post has been updated to reflect the fact that Trump has nominated nine judges who received an ABA ranking of “not qualified.” Two were not confirmed, and two—including VanDyke—are still pending.