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SALT LAKE CITY — Sen. Mike Lee says the American Bar Association has “severely abused” the longstanding place it holds to evaluate federal judicial nominees, and he wants the Senate to end its preferred role in the confirmation process.
The Utah Republican railed against the bar association during a Senate Judiciary Committee hearing last week on Lawrence VanDyke, a former Montana and Nevada solicitor general nominated to serve on the 9th Circuit Court of Appeals.
“I have looked the other way on this issue for years, hoping that the ABA would get its act together. It has not, and yesterday I saw a sickening example of abuse by this organization,” Lee posted on his Facebook page.
Lee reacted angrily to a letter the bar association sent to the committee calling VanDyke “arrogant, lazy, an ideologue” who “lacks humility” and “does not have an open mind,” and is not qualified to serve as a federal judge. It also raised concerns about how VanDyke would treat gay and lesbian people.
“Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community,” according to the letter.
In the hearing, Lee said the bar association essentially called VanDyke a “homophobic bigot” with no apparent basis.
Responding to a series of questions from Lee, VanDyke said he holds no personal animus against LGBTQ people and would treat their cases impartially and without bias.
A 2012 study of the bar association’s ratings of federal nominees from 1997 through 2008 showed a bias in favor of Democratic nominees, Lee said. The association didn’t rate any Obama administration nominees as “not qualified” in eight years but has deemed 10 Trump administration nominees as not qualified in less than three years, he said.
The evaluation was nothing but a politically motivated fact-free hit job from the start.
–Sen. Mike Lee
In VanDyke’s case, the association failed to disclosed that a lawyer who led the evaluation had donated to his opponent in the race for a seat on the Montana Supreme Court in 2104, Lee said.
“In other words, the evaluation was nothing but a politically motivated fact-free hit job from the start,” the senator said in a statement after the hearing. “This ongoing fraud most stop.”
The American Bar Association had no comment Monday on Lee’s rant or on the specifics of the VanDyke evaluation.
The association has provided the Senate evaluations of judicial nominees since 1953. Its Standing Committee on the Federal Judiciary conducts the evaluations and is independent of the association’s leadership and policy-making group.
Its report on VanDyke was based on interviews with 43 lawyers, 16 judges and a person who worked with him in four states. Interviewees include attorneys who worked with him and who opposed him in cases and judges he appeared before in oral arguments.
“The evaluations are narrowly focused, nonpartisan and structured to assure a fair and impartial process,” according to William Hubbard, the committee chairman. The committee bases its recommendations solely on a review of integrity, professional competence and judicial temperament, he said.
The evaluations are narrowly focused, nonpartisan and structured to assure a fair and impartial process.
–William Hubbard, committee chair
During the current administration, the committee has conducted 264 evaluations and issued “well-qualified or “qualified” ratings for 255, or 97% of them, he said.
“The ABA believes that it has a responsibility to the Senate, the public and the profession to conduct evaluations that help assure an eminently qualified judiciary to individuals being considered for lifetime appointments,” Hubbard said.
Lee, a lawyer whose father served as U.S. solicitor general, said in the hearing that the rating of VanDyke shows the bar association’s “purported independence is hopelessly compromised.”
The White House and the Judiciary Committee needs to suspend the “unique access” it has to the confirmation process pending an investigation into how it conducts evaluations, Lee said. The association, he said, should be treated like any other special interest group.
On Facebook, Lee urged those who belong to the American Bar Association to drop their membership or call for ”immediate and drastic” reform.
