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Nominee Tries To Get Away With Mealy-Mouthed Gay Rights Statement And Then Cries About Getting Called Out On It

Don't get distracted by the theatrics -- this is an assault on the ABA as an institution.

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It’s entirely possible that Lawrence VanDyke has no problem with the LGBTQ community.

Certainly that’s what he was trying to convince everybody when he turned on the waterworks yesterday at his Judiciary Committee hearing regarding his nomination to the Ninth Circuit. The emotions kicked in during friendly questioning from Senator Josh Hawley:

The letter they’re talking about in the above clip is the ABA’s letter giving VanDyke a “Not Qualified” rating. Among the troubling conclusions recounted in the letter — that he’s “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” which in fairness lands him in the 90th percentile of Trump administration nominees — is a statement noting that other interviewees specifically raised concerns over VanDyke’s ability to be fair to LGBTQ litigants and when he was asked about this he “would not say affirmatively” that he would be fair.

Despite Josh Hawley’s grandstanding, this isn’t “shameful” so much as “a thorough execution of the ABA’s duty to advise the Senate on judicial nominees.” They gathered information, asked him about it, got a troubling answer, and noted it. But conservatives are joining Hawley in scolding the ABA for making a judicial nominee feel bad. Professor Josh Blackman of South Texas College of Law took to Reason to outline his objections to the ABA:

When I first read the letter, I simply assumed the ABA asked VanDyke the same question: would he be fair to people in the LGBT community? And VanDyke replied that he would be fair to everyone. But that is not what the ABA reported. Instead, the letter parsed a very lawyerly statement that is, at best, misleading. That is, VanDyke “would not say affirmatively” that he would be fair to people in the LGTB community. Would any reasonable person actually think that VanDyke said he would not be fair to LGBT people? Of course not. The “not say affirmatively” line is designed to give a false impression.

No, Josh, what’s designed to give a false impression is the mealy-mouthed response VanDyke clearly tried to get away with. To borrow from the Ghostbusters, “When someone asks you if you’ll be fair to victims of discrimination… you say yes.” Clearly what happened here is VanDyke — whether because he honestly wanted to dodge the question or he just didn’t want his Federalist Society overlords to get mad at him — bent over backwards to avoid answering the simple question in front of him. “Would any reasonable person actually think that VanDyke said he would not be fair to LGBT people?” No, but for the same reason, no reasonable person thinks a murderer would admit to the crime out of the gate — we mercifully don’t live in a world where we take everything at face value. This is one of those times where not just saying “yes” is actually saying a lot more.

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The obfuscation is even more troubling when a nominee can surmise that the subject is only coming up because other interviewees have raised it as a concern. Knowing that someone thinks your answer isn’t going to be “yes” and then proving them right is kind of a dealbreaker when it comes to this process.

It’s another manifestation of the ongoing effort of conservatives to performatively troll over basic constitutional rights. When asked, Trump nominees refuse to answer that segregation is unconstitutional in all their hearings. While many of them long for the antebellum order that they dress up beneath the word “Originalism,” some significant number are just doing it to own the libs. Dodging LGBTQ issues when directly asked is just a new wrinkle on this tired script.

All these cutesy, BS answers about issues of dire importance has to f**king stop. If the right actually wanted to be helpful to future prospective conservative jurists, they’d use this episode as an opportunity to recalibrate and tell nominees that being forthright matters and that sometimes it’s not even what a nominee believes, but the nominee’s unwillingness to be direct that’s the problem. But helping nominees navigate the ABA process isn’t really the goal here.

This whole affair is just the latest excuse to further the assault on the ABA.

Hawley’s calling it “shameful,” Blackman’s arguing that nominees should treat the ABA interview process as “hostile depositions,” Chris Walker’s asking the ABA to withdraw the letter, and Senator Mike Lee is calling for the ABA to lose its role in this process. If they can undermine the neutral gatekeeper of competence, it makes it a lot easier to jam up the judiciary with the hacks they’d prefer. This is all going to end with the Federalist Society becoming the new authority in vetting nominees for the Senate.

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Why? Because on camera, after being called out for not giving a forthright answer, VanDyke tearfully said he’d be fair? Even if true, that doesn’t address the ABA’s finding that other interviewees in the process raised specific concerns over VanDyke’s views on this issue. Why do those folks get swept under the rug once he decides to say, “So what I really meant was…”?

Again, maybe VanDyke’s telling the truth now and all those other people interviewed about his past answers were wrong. Maybe.

On the other hand, the ABA letter also notes that interviewees felt VanDyke “does not have a commitment to being candid or truthful,” so take all of this with a grain of salt from those salty tears.

(Check out the whole ABA letter on the next page.)

Judicial Nominees should only meet with ABA investigators if a court reporter is present [Reason]

Earlier: Asking About Brown v. Board Is ‘Gutter Politics,’ According To Senate Judiciary Official

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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