This short and narrow post is about the tears that Lawrence VanDyke, Donald Trump’s nominee for a seat on the 9th U.S. Circuit Court of Appeals, shed when confronted with a letter he had received the evening before his confirmation hearing. In essence, the letter from the American Bar Association’s Standing Committee on the Federal Judiciary said he was a nasty and mean-spirited bigot when it came to gay (“LGBTQ”) people.
Before the Senate Judiciary Committee, this man, who stands six-foot-seven or so tall and who is an avid hunter and gun enthusiast, cried in front of the cameras, the Senators, the press and his family when asked about the letter and the assertion of bigotry. As a reminder, here is a video clip:
I have two questions for the readers of Simple Justice. What I want you to tell me is this:
(1) Were VanDyke’s tears real rather than those of the crocodile variety; and
(2) What should a fair-minded Senator think about those tears, even if the Senator is a strong supporter of gay rights?
By the way, my questions are real and not rhetorical. Humor and educate me, please.
Richard G. Kopf
Senior United States District Judge (Nebraska)
It was a fine performance. Stanislavsky would be proud.
My answers are also real and neither political nor rhetorical.
1. Real tears. (I am evaluating them in the same way I evaluate an accuser on the stand.)
2. The take-away for senators: This nominee is a sincere man of deep faith and high integrity for whom two of the greatest insults are those directed to his impartiality and integrity.
(Note: I know absolutely nothing about this lawyer, other than the video clip you linked; in other words, I may know as much as some voting senators.)
…and I did not first read SHG’s initial post, Tears of a Clown, either, before giving you my real reaction. So I add this to reply #2: Judges can have emotions, although the voting senators ought to think through how this affects judicial temperament, certainly. But stoicism is dead, for whatever that is worth.
Stoicism isn’t dead. It’s sleeping.
It’s pining for the fjords.
Chris,
Thanks for your comment. I was sincere (one of the few times) when asked the questions. I really didn’t have answers to them.
All the best.
RGK
Judge, I dug up a cite I thought a good collateral take. It was considered sound and indeed mandatory TRIAL strategy, at least circa 1897 in Tennessee, to summon tears as an advocate (so long as no time was wasted). See excerpt below. But in truth, were I to see a judge tearing up, I would expect and then request that the judge recess and, perhaps, recuse if emotions had taken over. In my working group of Wisconsin criminal defense lawyers (read: trial prep with John Barleycorn), we say “there is no crying in baseball, unless it is needed to win.” Ironically, we have recently witnessed a spate of blubbering from local prosecutors (but not judges) in court – usually after a two-word verdict.
Here is the quote, inapplicable to judges: “”Tears have always been considered legitimate arguments before a jury, and … we know of no rule or jurisdiction in the court below to check them. It would appear to be one of the natural rights of counsel, which no court or constitution could take away. It is certainly, if no more, a matter of the highest personal privilege. Indeed, if counsel has them at command, it may be seriously questioned whether it is not his professional duty to shed them whenever proper occasion arises, and the trial judge would not feel constrained to interfere unless they were indulged into such a success as to impede or delay the business of the Court.” Ferguson v. Moore, 98 Tenn. 342, 39 S.W.2d 341 (1897).
Chris,
When I used to teach trial advocacy, I started with the Greek rhetoricians. They tell us even now that that there are three methods persuasion: pathos (emotion), logos (logic) and ethos (ethical appeal).
I stressed to my kids that I thought ethos was the most effective. That is, convincing the person deciding the question that you, the advocate, are intellectually honest–that the one hearing the matter could trust the advocate. I still think I was right. (See my comment to SHG below.)
All the best.
RGK
That is also what I made of it. I was pleased to see that ABA (normally the lot harping on “civility”), lost more members over this sleazy personal attack. They are burning down their own shop with fanatical act after fanatical act.
I didn’t buy Kavanagh’s tears. I don’t buy VanDyke’s. I think both put on a performance for the audience to melt the hard hating hearts of their haters.
That said, if I was a Senator, I would find their tears disqualifying for a judge, lacking the mental and emotional toughness necessary to be entrusted with such a duty. But you knew that.
SHG,
As you know, the difference between good trial lawyers and great ones is this: The good ones are sincere and the great ones can fake it. We need more great trial lawyers on the Courts of Appeal. On this, at least, I bet we agree.
All the best.
RGK
Many try to fake. Few are great trial lawyers. See Kavanagh and VanDyke. The problem with trying to fake it and failing is you’re revealed as a phony and your ethos is blown.
The risk of pathos is exactly what you describe.
One of the things that DOJ nominee handlers should stress to nominees (as she did with me in 1992) is this: Stay calm, be honest, keep your answers as short as possible and don’t volunteer. Bork didn’t listen to his handlers, but didn’t cry either.
For the run of the mill nominee, the operative rule is that you have only four safe answer: “Yes,” “No,” “I don’t know,” or “I don’t remember.” The irony, of course, is that if you think the crying VanDyke was phony, it was largely because a Republican Senator lead the nominee into the crying jag.
All the best.
RGK
Some might see that as a likely set up. If so, it was just really bad tactics. But as Brother Gamso pointed out, Kav’s script sucked too.
Oh, shucks. Men cry. Men sometimes put on acts too. But I believe Kavanaugh and VanDyke both welled up with genuine tears. It’s not disqualifying. WTH. Don’t you remember GWB and John Boehner both crying in the presence of the American public.
It’s not unmanly. Except to men, perhaps, who are insecure in their manhood.
Except to men, perhaps, who are insecure in their manhood.
What a typically passive aggressive girlie thing to say.
When I was a child, I spake as a child, but when I became a man, I put away childish things.
Well, at least you think so.
“During the past two decades, testosterone levels in American men have rapidly declined. This information comes from a long-term prospective study that evaluated changes in serum testosterone on a population-wide basis…..published in the Journal of Clinical Endocrinology and Metabolism.”
Fewer and fewer men will be secure in their manhood it seems, so get ready for more tears and tantrums! No doubt some lawyer will end up smacking another with his handbag one day..
Well, some say the only good man is a woman, and that appears the direction we’re heading.
Judge Kopf:
1. Those were alligator tears. Why alligator? Because alligators are more woke than their reptilian brethren. Alligators are much nicer, less ruthless.
2. Senators who are principled and above-and-beyond the latest dog-and-pony show would send sobbing deponents to where they belong: a corner office at big law.
All these animal metaphors are making me think we’re in the middle of a circus.
Best,
Mario
Mario, I love the circus. I particularly like seeing the lion tamers and most particularly when one of those idiots get mauled by a lion who has had enough of being prodded with a stick like a docile animal.
Come to to think of it, I would have paid big money long ago to attend the events at the Roman Coliseum. “We who are about to die, salute you!”
Modern day confirmation hearing are sort like that but unfortunately without the blood and gore. In this age of woke, confirmation hearings are the best substitute we have.
All the best.
RGK
“1. Those were alligator tears. Why alligator? Because alligators are more woke than their reptilian brethren. Alligators are much nicer, less ruthless.”
Having been around many gators in the Swamp, nope. They’re mean-ass bastards–even after they’ve been hit by a truck.
I cry readily. I tear up at weddings, funerals, movies, books, you name it. I’ve been known to cry thinking about what a client of mine has done – and at what has been done to the client.
What I don’t do is cry in court. I don’t cry while I’m analyzing what the client did or was done to. (Though I might do my best to make a judge or juror cry.) AT work, you control the emotions. Or you go into a different line of work.
And since I was a child, I haven’t cried because someone said mean things to (or about me).
No, I don’t think VanDyke (or Kavanagh) really cried. (Nor, frankly, do I believe that Kavanagh’s screaming outrage was anything but theater.) If the tears were real, if they can’t take it when people say bad things about them, they shouldn’t be on the bench. And if they think it’s appropriate to show that they lose control when offended, they shouldn’t be on the bench.
And, though it wasn’t one of your questions, if Senators think that those tears – real or fake – justify a seat on the bench, they’re wrong. They’re a disqualification.
SHG,
Quit sucking up to SHG!
All the best.
RGK
I am betting that Skink would shed alligator (not crocodile) tears followed by a hearty “fuck you!.”
But rather than guess,
Skink what say you?
He may be sleeping off a few strips of bacon, so it could be a while before he shows up at the hotel.
Thanks. I haven’t read Scott’s post.
A crying fucking judge? Really? I’d take him to a quiet place and piss on his shoes. I’m sure that would happen because it has.
But your piss doesn’t smell.
You didn’t go there, Judge.
1) Only someone well acquainted with Judge VanDyke could possibly know whether his tears at the confirmation hearing were real. One of the biggest myths is that people can read the mind of a total stranger based on his demeanor on the witness stand. They can’t.
Still — if VanDyke has a propensity for putting on a crying act, and a pretty good one at that, surely one of those hundreds of highly reliable anonymous sources in the ABA Report would have mentioned it.
2): At the risk of losing all our friends, we say the tears are irrelevant to his qualifications. If VanDyke or Kavanaugh were in the habit of bursting into tears when a litigant disagrees with their rulings, we might wonder. But when was the last time you saw a judge on the bench being treated like a defendant at the prosecutor’s summation – as those two were? The situation probably doesn’t come up much. Anyway, if cojones is going to be the test of judicial fitness, then why not just put a tarantula on the witness stand and make the determination according to how the nominee reacts?
Finally, what if VanDkye had been openly gay or transgender? Who would dare criticize their tears then?
Is cojones the test, or ability to not break down in an emotional puddle during a public hearing. I don’t think they’re remotely similar. But as to your last question, my hand is up. I’m no cissy.
Appellate Squawk,
You write: “Finally, what if VanDkye had been openly gay or transgender? Who would dare criticize their tears then?”
How dare you to ask such a question. You must be an awful anti-gay/anti-transgender bigot. You should be cancelled.
All the best.
RGK
Awkward.
Nolo contendere, Your Honor, since we actually have been cancelled from the company email, but all the more time to clutter up Scott’s blawg!
What nobody’s said so far is that there’s a big difference between controlling one’s emotions and controlling emotional expression. Lots of judges are as smooth and self-controlled as robots. But when it comes to issuing decisions or imposing sentences, particularly involving sex offenses, they come straight from their uncontrolled emotions.
Suppose Judge VanDyke had answered those accusations with a couple of glib, witty remarks instead of tears. You’d still know nothing more about how he decides cases.
Plus, it would have deprived the public of an exciting gladiatorial spectacle.
All the best.
If a nominee can’t control his emotions enough to make it through a confirmation hearing, what are the chances he won’t let emotion get the better of him at sentence, even if he doesn’t show it?
“But when was the last time you saw a judge on the bench being treated like a defendant at the prosecutor’s summation – as those two were?”
So what? It’s a hard job. It’s a hard-to-get job. It should be. Crying because someone says you’re unfit is an automatic disqualification because someone will say you’re unfit with every decision. Jesus, it’s a job for the butch.
Squawk, youse are doing good with the pronoun thing, clearly (and I know there is a hat, on a pole, where youse earn your daily bread). I hope all y’all manage to make it to retirement.
I am, obviously, neither a lawyer nor a judge. But I have spent decades being told that one of the big things wrong with men is that they don’t show their emotions. Maybe that’s because when/if they do they get attacked for doing so.
I can’t tell if the tears are real, and I really don’t care. Both Kavanaugh and Van Dyke were attacked by partisans aiming to ruin them and/or their careers. Evidently they felt showing emotion was the best response in that case.
However, unless someone attacks them personally while they’re judging I don’t see why showing that emotion should mean much. (I do think that probably most attorneys would find personal attacks on a judge during a trial might be a bad tactic, but I don’t really know that.) I would think that one can be emotional in some circumstances and not in others where emotion would not be useful.
And I remember that both men were attacked in the most anonymous manner available at the time to their attackers. Somehow that makes me question the motives of the attackers.
Judge Kopf,
1. I cannot discern who is telling the truth and who is lying on the basis of demeanor.
2. While I appreciate the opposite perspective, I do not find the shedding of tears to be disqualifying.
best regards,
Chris
Thanks Chris.
All the best.
RGK
When I saw the video clip for the first–and last–time, and I have to be honest, I thought to myself that this guy is crying in front of the Senate Judiciary committee because his feelings were hurt?… Really?… And you want to be a federal district court judge?…Really?
Quintessential snow flake.
I thought the tears were real, but inappropriate. The nominee lacks judicial temperament. Next…
Far be it for me to be able to tell whether those tears were sincere, when those whose profession involves some degree of being able to read people cannot agree. Still, to this untrained eye, his performance seemed calculated . . .
There were press reports at the time that Kavanagh was acting at Trump’s direction when he went on screaming, crying, raging offensive. I have no idea whether the reports were accurate, but we do know that nominees have handlers who are supposed to help them through the process. (So, of course, do at least some of those who would derail the nomination.)
The point (yes, there is one) is that trying to parse in any way more than unreliable gut feeling whether he or VanDyke or anyone else is giving honest responses (either in substance or in style) is ultimately no more than a parlor game. The hearings are theater, however clumsily scripted. When we take them seriously, if we expect to learn anything meaningful about the candidates from them, we delude ourselves.