The nomination of Lawrence VanDyke to the Ninth U.S. Circuit Court of Appeals illustrates what's deeply wrong in Washington, D.C., today.
The American Bar Association, which has long helped to vet federal court nominees, rated VanDyke as "not qualified" to serve on the appeals court, which covers several western states including Montana.
So far, among 264 nominees from the Trump administration, the ABA's Standing Committee on the Judiciary has deemed 97% qualified or well qualified. Among the few rated unqualified, the U.S. Senate has confirmed six anyway.
Some Senate Republicans (not all) claim the ABA is a liberal, Democratic tool and disregard the extensive research the bar does to give sound advice about people whom the president has tapped for lifetime appointments to the federal bench.
We are confident that the Trump administration believes all its judicial nominees are conservative Republicans who will lean toward supporting Trump policies on the bench. If the ABA is out to smear these nominees, as some Republicans charge, why did the ABA committee rate nearly all of them qualified?
Daines, Tester split
Asked for Sen. Steve Daines's position on the VanDyke nomination, a spokeswoman for the Montana Republican replied by email: "Sen. Daines is in full support of Lawrence VanDyke’s nomination. Steve knows him personally and believes he’s beyond qualified."
Democratic Sen. Jon Tester's spokeswoman replied to The Gazette's question by email, writing: "After extensively reviewing Mr. VanDyke’s record, Senator Tester intends to oppose his nomination. He believes Montanans deserve qualified, impartial judges, and Mr. VanDyke’s record on the environment, on the separation of church and state, and on the role of dark money in politics — suggest he is neither."
VanDyke ran unsuccessfully for Montana Supreme Court in 2014. He grew up in Montana, but had never actively practiced law here, instead working in Washington, D.C., and in Texas, before he moved to Montana in 2013 to run for the state Supreme Court seat held by Justice Mike Wheat. Newly elected Montana Attorney General Tim Fox hired VanDyke as state solicitor in 2013, a job that provided his first-ever appearances as an attorney in Montana courts. He left that job in May 2014. Emails obtained by the Great Falls Tribune and reported statewide revealed internal concerns about his performance during his brief tenure.
In one email from VanDyke to his bosses at the attorney general’s office, VanDyke said he wanted off the same-sex partner benefits case in part because he has little experience or expertise in matters such as discovery issues, dealing with experts, stipulations and conferring with opposing counsel.
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Emails and a former Montana colleague raised some of the same concerns about VanDyke in 2014 that the ABA raised in its Oct. 29 letter to the Senate Judiciary Committee. Signed by William C. Hubbard, chairman of the ABA committee on the federal judiciary, the letter (which can be read at a link with this Gazette opinion at billingsgazette.com) stated in part: "Mr. VanDyke's accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue and lacking in knowledge of the day-to-day practice including procedural rules. There was a theme that the nominee lacks humility, has an 'entitlement' temperament, does not have an open mind, and does not always have a commitment to being candid and truthful."
That scathing assessment should give every senator pause. The ABA interviewed 60 people, including lawyers and judges who have worked with VanDyke over his 14 years in practice. The committee also reviewed more than 600 pages of documents, including email and other writings by VanDyke and news articles.
As of last week, the Senate Judiciary Committee had requested to get more information from the ABA, which is totally appropriate. What isn't acceptable is blind partisan obedience to confirming a judicial nominee who isn't qualified.
Senate Republicans complained that the ABA's lead evaluator, Montana attorney Marcia Davenport, was biased because she donated $150 to Wheat's campaign in 2014. Many Montana lawyers donated to Wheat's Supreme Court campaign against VanDyke, who was abysmally inexperienced in Montana practice.
The VanDyke-Wheat race drew more than $1.4 million in third-party spending. Most of that outside support for VanDyke came from out-of-state Republican and Koch Brothers-affiliated groups. Montana attorney groups were the biggest spenders in support of Wheat, who had 28 years of experience in Montana courts. Montana voters re-elected Wheat with 59% of the vote.
Weeks after the November 2014 election, VanDyke took a job as state solicitor in Nevada. He currently works for the U.S. Justice Department in Washington, D.C.
In a Senate Committee hearing on Oct. 30, VanDyke choked up and began sobbing when asked about a line in the ABA letter that said: "Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community."
VanDyke did not affirm to the senators that he would be fair to LGBTQ people, but instead said: "It is a fundamental belief of mine that all people are created in the image of God. They should all be treated with dignity and respect."
The Gazette opined five years ago that VanDyke was too inexperienced to serve on Montana's Supreme Court. He has since accumulated experience in Nevada and in the U.S. Justice Department, but the ABA evaluation reveals serious concerns about his fitness for this lifetime appointment. His breakdown in the Senate committee makes us wonder about his temperament; judges get a lot of criticism yet they must calmly apply the law consistently and fairly. They can't interrupt their work by getting upset.
Daines should reconsider his support for VanDyke. We commend Tester for standing against this candidate as a majority of Montanans did in 2014.