Among nearly 300 Trump administration nominees for lifetime appointments to the U.S. courts, very few attained the dubious distinction of one new judge for the U.S. Ninth Circuit Court of Appeals, which covers Montana, California, Oregon, Alaska and Washington.
The American Bar Association, which has long helped to vet federal court nominees, has conducted evaluations of these nominees' qualifications for public offices designed to be independent of the other two branches of government, offices for which the occupant will never have the oversight of voters or changes in partisan control of the Congress or the White House. For these reasons, the federal judiciary should have the very best legal minds with demonstrated records of good judgment, hard work, fairness and excellent legal skills. The Trump administration has chosen nominees on a partisan basis; no moderates or liberals need apply. So if the ABA really was out to stop conservatives from taking the bench, it should have found all of the nominees unsuitable.
But that is not how the ABA rating works. In fact, among the first 264 Trump judicial nominees, 97% were rated by the the ABA as qualified or well qualified for these important appointments. Only a handful received an ABA rating of "unqualified." That fact speaks volumes about the bar's commitment to professional assessment, which isn't partisan.
The fact that the few candidates rated unqualified were confirmed anyway by the U.S. Senate tells us that the majority of senators are failing to take their responsibility to advise and consent seriously.
Lawrence Van Dyke, who was born in Texas, grew up in Montana and earned a degree from Montana State University in Bozeman before graduating with highest honors from Harvard Law, will join the Ninth Circuit Court of Appeals despite his "not qualified" rating from the ABA. It wasn't his upbringing or educational credentials that gave the ABA concern, but rather information from 60 interviews involving his professional track record, particularly during his brief stint practicing law in Montana.
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Van Dyke moved to Montana in 2013 to run for a Montana Supreme Court seat in 2014 and was appointed by Attorney General Tim Fox as state solicitor to represent Montana in civil litigation. Van Dyke had not actively practiced law in Montana and admitted in email (made public under a newspaper's Freedom of Information request) to coworkers that he was not knowledgeable about basic legal requirements of his job, writing that he had no experience in discovery, expert witnesses, stipulations or in conferring with opposing counsel. He left the Montana AG's office in less than a year to campaign full time for the Supreme Court seat then held by Mike Wheat.
Montana voters re-elected Wheat, and Van Dyke left the state within weeks to take another political appointment, the state solicitor post in Nevada.
Last week, a day before the Senate voted to confirm Van Dyke, Montana U.S. Sen. Jon Tester, a Democrat, spoke on the Senate floor to reiterate concerns that Van Dyke lacks judicial temperament. Tester quoted a former Montana assistant attorney general who worked with Van Dyke as saying: "Ever since he has arrived, Mr. Van Dyke has been arrogant and disrespectful to others, both in and outside of this office. He avoids work. He does not have the skills to perform, nor desire to learn how to perform, the work of a lawyer. Now that he has resigned and refuses to work on cases assigned to him while remaining on the payroll for the next several months."
Nevada's two U.S. senators, both Democrats, also opposed Van Dyke's nomination. He was confirmed 51-44 on a party line vote with five senators not voting. Fox and Sen. Steve Daines, R-Montana, strongly supported Van Dyke; and Daines joined his GOP colleagues in confirming him.
We see the 51 Republican senators' loyalty to President Trump outweighs any facts that conflict with the president's will. Including Van Dyke, Trump has now appointed 10 of the 29 judges on the Ninth Circuit. There have long been vacancies on the court, sometimes for years while the Senate failed to act. We would like to applaud a full bench, but putting an unqualified attorney on the appeals court is a poor decision.