10th Trump Nominee Confirmed to Seat on Ninth Circuit

WASHINGTON (CN) – The Senate on Wednesday confirmed to a seat on the Ninth Circuit a Justice Department attorney the American Bar Association found not qualified for the position in part due to concerns about his ability to be fair to gay and lesbian litigants.

The James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals. (AP Photo/Ernest McGray)

Lawrence VanDyke has served as deputy assistant attorney general in the Justice Department’s Environment and Natural Resources Division since earlier this year, coming to the job after spending the prior four years as solicitor general of Nevada.

He also served as solicitor general of Montana from 2013 to 2014, spent time at the Dallas firm Gibson, Dunn & Crutcher, and clerked for Judge Janice Brown on the D.C. Circuit.

He was confirmed with a 51-44 vote on Wednesday afternoon, marking President Donald Trump’s 50th appeals court appointee and 10th judge confirmed to the San Francisco-based Ninth Circuit.

VanDyke’s nomination became a flashpoint in the Senate after a scathing letter the American Bar Association’s Standing Committee on the Federal Judiciary sent to lawmakers explaining its determination that VanDyke was not qualified for a seat on the federal appeals court bench. Between 10 and 13 members of the 15-member ABA committee found VanDyke not qualified for the Ninth Circuit position, while a minority of the committee found him qualified.

In a two-page letter detailing the reasoning behind the rating, Standing Committee Chair William Hubbard explained that interviews with 60 lawyers, judges and others who worked with VanDyke revealed concerns about his work ethic, personality and qualifications.

“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,” the October letter states.

In addition, Hubbard wrote that some people interviewed said they had concerns about whether VanDyke “would be fair to persons who are gay, lesbian or otherwise part of the LGBTQ community.”

“Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community,” the letter states.

During his October confirmation hearing, VanDyke vehemently denied the allegations detailed in the letter, saying he did not get a full opportunity from the ABA to defend himself against the allegations and suggesting some of the criticisms had their roots in professional disagreements.

When asked about the allegation that he would not be fair to gay and lesbian litigants during the hearing, VanDyke began to cry, taking a moment to collect himself before saying he had not said what the letter accused him of saying.

“It is a fundamental belief of mine that all people are created in the image of God and they should be treated with dignity and respect,” VanDyke said in October.

Democrats loudly opposed his nomination, saying the assessment of his work and character should keep him off of a seat on one of the country’s most influential appeals courts.

“He’s a low human being, at least according to all of this, and he’ll have a lifetime appointment on a circuit bench,” Senate Minority Leader Chuck Schumer said on the Senate floor Wednesday. “That would indicate the decline of America. One more indication, unfortunately, propagated by this administration.”

In addition, Democrats also faulted VanDyke for positions he took in court while working as the top appellate attorney for Nevada and Montana, as he signed onto briefs advancing conservative positions on issues like abortion, guns and gay rights.

The letter resurfaced dormant Republican criticisms of the ABA, which lawmakers have accused of having a bias against Trump’s nominees. The organization has rated nine of Trump’s nominees not qualified, often faulting them for a lack of experience. Six of those nominees were confirmed, including VanDyke.

VanDyke is the second judge the Senate has confirmed to the Ninth Circuit this week, following Patrick Bumatay on Tuesday.

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