When The ABA’s Letter Is Just A Plain Ol’ Lie

At Volokh Conspiracy, Josh Blackman proposes a radical solution.

Going forward these interrogations should be treated as hostile depositions. A court reporter and videographer should be present, as well as private retained counsel to push back on unfounded accusations.

The letter from the ABA’s standing committee on the federal judiciary found Ninth Circuit nominee Lawrence VanDyke “not qualified.”

Some interviewees raised concerns about whether Mr. 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.

A generous view of this conclusion might call it misleading. An honest view would call it a lie. But it gets worse.

Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that
Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-today [sic] 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.

This is an outrageous personal attack. And it’s not at all surprising. The same treatment was shown Steve Grasz. And just as with Grasz, it has nothing to do with whether VanDyke is a good nominee or one I would pick or support. I didn’t care about Grasz one way or the other. I don’t care about VanDyke either. What I do care about is that the ABA’s vetting of nominees can’t be trusted, and to the extent there was any doubt that it was an organ of ideology, willing to lie for its ends, that question has now been answered.

We need an honest broker to vet judicial candidates. The ABA is not an honest broker.

Having chronicled the downfall of the ABA, from its loss of membership as it dedicated itself to progressive political causes outside the realm of law, to its courting bankruptcy, it hasn’t spoken for, or reflected, the legal profession in quite a while. Mind you, that hasn’t stopped it from trying to dictate to lawyers what they should be allowed to say or think in order to keep their license.

But even within its new dedication to requiring all lawyers be social justice warriors, there were depths no one would have believed it would go. This time, it went there, and even those still on board realize that this time, this letter, was too false to accept.

As a member of @ABAesq and chair-elect of one of its sections, I urge the ABA to withdraw this letter and rating and pledge to improve its process of evaluating judicial nominees to ensure the process is fair and impartial.

Like Josh, Chris Walker isn’t ready to pull the plug. He’s still deeply involved with the ABA and sees this flagrant falsehood and personal attack as a problem, but one that can be fixed if only the ABA “pledges” to improve its process. Unlike Josh, he doesn’t call for a stenographer or videographer to record the interview, which should be treated as a hostile deposition.

Even though they see the failing, both still believe it can be salvaged. But once integrity is lost, can it be fixed by a pledge or a recording?

While the need for an honest evaluation of judicial candidates is obvious, as the Senate lacks any qualification to make such an assessment on its best day, and it hasn’t had a best day in a very long time, there is no reason why the job should rest with the ABA. And no, not with the Federalist Society either, for those of you whose heads explode whenever you feel any negativity toward your tribe means positivity toward your hated enemy.

An honest broker is honest at all time, in every assessment, no matter what. It’s not that the ABA has been a horrible liar every time. It hasn’t. But it hasn’t demonstrated integrity every time either. That’s what an honest broker does. Every time.

It’s not good enough to be relatively honest most of the time if one wants to be trusted. More to the point, it’s not good enough to have a record around for those times when it’s lying through its teeth. This VanDyke letter may reflect that this candidate, more than others, is awful and hated, and so the committee was somehow justified in lying to do what it could to prevent his confirmation. But that’s where integrity is tested, being truthful even when you would prefer not to be.

The solution isn’t to record “hostile depositions” so as to trot out proof of dishonesty later. The solution is to have judicial evaluations done by an organization that can be trusted all the time, without need for a record just in case. And the ABA can’t do that because it has forfeited its integrity here. Again.

Would it help if the ABA “pledged” to do better? That’s the problem with loss of integrity. When a liar promises not to lie, can you trust it? Integrity lost is lost forever. The ABA has lost its integrity. We need a new honest broker to do the critical job of evaluating judicial nominees. It can’t be the ABA because they can’t be trusted not to lie. That’s how integrity works.

8 thoughts on “When The ABA’s Letter Is Just A Plain Ol’ Lie

  1. B. McLeod

    It is remarkable that Senate Judiciary and the media have not put the spotlight on these ABA mockeries for what they are, and it is shocking, really, that these letters continue to be received as having any credibility in proceedings to screen nominees for the federal bench.

    To begin with, ABA offers these letters as ostensibly based on anonymous hearsay from unidentified, cowardly back-shooters who are unwilling to come say what they have to say in the light of day. Hearsay, as presented by ABA itself, and anonymous hearsay at that, so that it is impossible to form any conclusions about the biases of the declarant, the accuracy of facts asserted in the declarations, or in short, any facet of the reliability of the hearsay. In any proceeding subject to normal considerations of fairness and reliability, this is totally inadmissible excrement, which would be summarily excluded by any competent or reputable factfinder.

    But beyond even that, we have the facts now bearing on ABA’s own lack of credibility as a dishonest, ends-justify-the-means cadre of fanatical leftists, abandoned by 87% to 88% of this nation’s lawyers. Despite ABA’s constant bullshit gaming of its “over 400,000” membership numbers, it has publicly acknowledged that more than half of these “members” pay no dues, the lion’s share of them being the non-lawyer “student members” ABA padded on a few years back to obscure the fact that it is in a death spiral. In short, ABA’s claim to represent the legal profession in this country is deeply dishonest, and has been for well over a decade. ABA’s claim to be “non-partisan” is even more transparently dishonest. In the last Annual Meeting, the House of Delegates added “Guaranteed Basic Income” to the roster of “causes” ABA backs, joining abortion, gun control, LGBTQ rights and open borders. There can be no doubt as to the organization’s fundamental identity as a left wing political organization, and this has been a common criticism raised by the thousands of departing lawyers who have cut off their dues support in the hopes of staking this abomination in its coffin.

    So, what reason have we, or the Senate Judiciary, or the media, or anyone, to believe ABA’s unverified and unverifiable representation that the “interviews” allegedly yielding the unverifiable, anonymous hearsay even took place? I submit that the answer is “none.” The ABA has shown itself to be fanatical, unprincipled and dishonest, and objective factfinders must consider that the anonymous hearsay interviews, unreliable even if real, could as well be completely fictional. Senate Judiciary should establish rules excluding this sort of material, and really, anything from ABA, which has no standing anymore to speak for the legal profession in this country. Lawyers who strongly feel that they need to speak to the qualifications of a federal judicial nominee can strap on their boots and come testify in the hearing, under oath, like any other witness who expects to be taken as remotely credible. If they won’t, to Hell with whatever their quibbles may have been, as they obviously couldn’t have been very important.

  2. Marty Lederman

    I haven’t any idea–none at all–whether the allegations of those the ABA interviewed are true or not. I know nothing about Mr. Van Dyke except what I’ve seen and read since yesterday. I suppose it’s *possible* that someone in the process is lying here. But you haven’t offered any evidence at all that anyone is lying. Surely you don’t mean to suggest that the ABA is fabricating what the interviewees said, right? Presumably they did say such things, and the “theme” the ABA describes was present in the interviews–which is itself *very* unusual, and troubling (worthy of further inquiry) at the very least. So I’ll assume you don’t mean to be accusing the ABA itself of just conjuring up nonexistent interviews out of whole cloth.

    OK, but perhaps what you meant to say is that many or all of those interviewees were themselves “lying.” Again, I have no idea whether they were or not. But you’ve offered no reason at all to think that so many of them–or any of them, for that matter–might have lied.

    What about the ABA’s statement that “Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community”? It’d be very strange for the ABA to write such a thing if, indeed Van Dyke *had* been willing to attest to his questioners that he’d be fair. But who knows?: I suppose it *might be* that the ABA was being “misleading” in its characterization of its interview(s) with Van Dyke. But again, you’ve offered no evidence one way or the other to support that statement–let alone to support your assertion that “[a]n honest view would call it a lie.”

    1. B. McLeod

      Completely possible that they are fabricating everything, including the assertion that any interviews were conducted. The absence of any means to authenticate the alleged information or the occurrence of the alleged interviews is an inherent characteristic of a “rating” claimed to be based on unverifiable hearsay from unverifiable anonymous interviews. The raters had reportedly seen some dated writings in which the nominee had referred to LGBTQ “rights.” He didn’t bow to the hat on the pole, so he’s bad, bad, bad, and for ABA fanatics, that justifies whatever they have to do to submarine his nomination. Raters gonna rate.

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