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.