Pair of Controversial Ninth Circuit Picks Grilled by Senators

WASHINGTON (CN) – Two of President Donald Trump’s picks for the Ninth Circuit endured a contentious nomination hearing in the Senate on Wednesday morning, including one who emotionally defended himself after the American Bar Association rated him not qualified because people it interviewed found him “arrogant” and “lazy” and raised concerns he could not 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)

The hearing for Ninth Circuit nominee Lawrence VanDyke brought up old arguments in the Senate Judiciary Committee about the American Bar Association’s long-standing role in evaluating judicial nominees, with multiple Republicans calling for an end to the organization’s involvement in the process.

“I think it is past time for the White House to stop granting the ABA special access,” Senator Josh Hawley, R-M.O., said Wednesday. “I would urge the [White House] counsel’s office not to make nominees available any longer to the ABA for these interviews. I think that should stop and I will no longer consider the ABA’s recommendation on any nominee for any position for any reason.”

The argument about the ABA Standing Committee on the Federal Judiciary’s role in vetting nominees has raged in the Judiciary Committee since the group gave a not-qualified rating to Eighth Circuit Judge Steven Grasz early in the Trump administration.

The organization has rated nine Trump nominees not qualified, including VanDyke, most often citing a nominee’s youth or lack of professional experience, but sometimes criticizing a nominee’s temperament or ability to be impartial.

As a result, Republicans and conservative groups have accused the ABA of having a liberal bias and not giving Trump’s judicial nominees a fair shake.

The Judicial Crisis Network, a conservative group that advocates for Trump’s judicial nominees, made this allegation in defending VanDyke ahead of his hearing, pointing to political donations the lead evaluator on his nomination, Helena attorney Marcia Davenport, has made to Democrats and to the incumbent VanDyke unsuccessfully tried to unseat in the 2014 Montana Supreme Court election.

Senator Lindsey Graham, the South Carolina Republican who chairs the committee, told reporters after the hearing that he would still look at the ABA’s assessment of nominees, but that he agreed its work on VanDyke’s nomination was “a pretty sloppy job.”

VanDyke currently works as deputy assistant attorney general at the Justice Department’s Environment and Natural Resources Division but also boasts the somewhat unusual distinction of having served as the solicitor general of two states. VanDyke held the job in Montana from 2013 to 2014 and in Nevada from 2015 until he joined the Justice Department this year.

A graduate of Harvard Law and a former clerk to Judge Janice Brown on the D.C. Circuit, VanDyke also spent time at the firm Gibson Dunn & Crutcher and in the Texas Attorney General’s Office, which has produced a host of Trump judicial nominees.

Despite his experience, the ABA Standing Committee rated VanDyke not qualified. In a letter to the Judiciary Committee explaining the determination,  committee chair William Hubbard said people interviewed as part of the review process said VanDyke was “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,” Hubbard explained in the letter.

VanDyke told senators Wednesday he was not given a fair chance to defend himself from the negative reviews the ABA received of his work. He said his evaluator hurried him through answers during a three-hour interview, telling him she needed to move along before he was able to fully respond.

He said he was “disappointed, shocked, hurt” to hear the views people had expressed about him and his work and suggested some of the remarks were the result of professional disagreements.

“I’m very, very hurt by some of the things that were attributed to me in that [letter], I don’t think they’re true,” VanDyke said. “I’ve litigated controversial things, that’s what happens when you’re a solicitor general. You don’t get to pick those. I’m used to people conflating the advocate with the issue, senator. I was much more hurt than I’ve ever been to get that [letter]. I don’t think it’s reflective of me.”

Former Nevada Attorney General Adam Laxalt, who recruited VanDyke to serve as the state’s solicitor general, also defended his former colleague, saying in a statement Wednesday that the ABA’s evaluation of VanDyke “could not be more false.”

According to the ABA letter, people interviewed also raised questions about whether VanDyke would be fair to gay and lesbian litigants and noted that VanDyke himself “would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”

When asked about this part of the letter at his nomination hearing Wednesday, VanDyke grew visibly emotional and choked up. He had to take a lengthy pause to collect himself before responding that he had not said what the letter accused him of saying and that he would not have accepted the nomination if he thought he could not treat all litigants before him fairly.

“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, senator,” VanDyke said, his voice shaking.

On top of the issues raised in the letter, Democrats also pressed VanDyke at the hearing on an article he penned in the Harvard Law Record in 2004 while a law student, in which he wrote there is research that supports concerns “that same-sex marriage will hurt families, and consequentially children and society.”

VanDyke said his views have “certainly changed” since he wrote the article, but insisted his personal views on issues would not matter if he were to take a seat on the San Francisco-based appeals court.

Like they have with other nominees who served a state solicitors general, senators also pressed VanDyke on his role signing onto briefs in contentious cases. Democrats in particular focused on his role in Montana signing onto a brief supporting a photography company that was found in violation of New Mexico’s antidiscrimination laws when it refused to photograph a gay wedding, and onto multiple briefs defending same-sex marriage bans in other states.

While solicitor general, VanDyke also signed the states he represented onto briefs taking conservative positions on issues from gun rights to gay rights to the environment.

The other Ninth Circuit nominee to go before the committee Wednesday was Patrick Bumatay, a federal prosecutor in California the president has nominated for judicial positions three times. Trump first tapped Bumatay for a seat on the Ninth Circuit in 2018 and then chose him for a seat on the U.S. District Court for the Southern District of California earlier this year after the Senate did not vote on his first nomination to the Ninth Circuit before the end of the last session of Congress.

Bumatay, who is openly gay, heads up the appellate and narcotics sections of the U.S. Attorney’s Office for the Southern District of California and also served as a counselor to the attorney general in 2018, focusing on opioid strategy and other issues.

California Senators Dianne Feinstein and Kamala Harris, both Democrats, have opposed Bumatay throughout, citing what they have called a lack of experience. As a 2006 graduate from Harvard Law School, Bumatay just clears the level of professional experience the ABA recommends for judicial nominees and the group has rated him qualified.

At Wednesday’s hearing, Feinstein specifically said she found Bumatay’s appellate experience lacking.

“I very much respect Mr. Bumatay’s service to California as a federal prosecutor, I also appreciate the diversity he would bring to the bench,” Feinstein said. “There is concern, however, that Mr. Bumatay does not have the experience required to serve on the Ninth Circuit.”

Bumatay told Feinstein Wednesday he has handled nine trials in federal district courts and has argued twice at the Ninth Circuit. He also said he has worked on roughly six other federal appeals during his career and noted he clerked for Judge Timothy Tymkovich on the 10th Circuit, so he “know[s] what the job entails.”

Questions for VanDyke dominated the hearing, leaving Bumatay mostly as an observer as senators grilled the nominee testifying beside him.

The same was true of the three nominees to federal district courts who testified after VanDyke and Bumatay – U.S. District Court for the Southern District of New York nominee Philip Halpern, U.S. District Court for the Western District of Oklahoma nominee Bernard Jones and U.S. District Court for the District of Connecticut nominee Barbara Jongbloed.

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