The Whiny Return of Lawrence Van Dyke

The Whiny Return of Lawrence Van Dyke November 3, 2019

You have to have been reading this blog for a long time to remember my dust up with Lawrence Van Dyke, then a student at Harvard Law who wrote an article claiming it was constitutional to teach creationism in public school science classrooms. He ended up running for office (and losing) many years ago and now he’s returned as a nominee to be a judge on the Appeals Court. His confirmation is not going well.

When he wrote that article in the Harvard Law Journal, prominent legal, in 2004, scholar Brian Leiter attacked him rather viciously, telling him he was killing his career making such an argument, among other things. The attacks were over the top, but accurate it its substance. I jumped into the ensuing debate to make both points and got a great deal of attention. It was the first time my blog had drawn the attention of some big legal names and lots of people and helped put me on the map as a blogger. In 2014, he ran for a seat on the Montana Supreme Court and lost the election. Now he’s been nominated by Trump for a seat on the 9th Circuit Court of Appeals and is having some trouble getting confirmed, even in the Republican Senate.

The American Bar Association, which rates all judicial nominees, gave him a not qualified rating and took the unusual step of making a truly pointed statement about Van Dyke’s temperament and record.

The American Bar Association had no shortage of criticism in its assessment of the Trump administration’s new judicial nominee.

Colleagues found Lawrence VanDyke to be “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice,” the chair of an ABA committee wrote in the scathing letter, the result of 60 interviews with lawyers, judges and others who worked with the Justice Department attorney. Acquaintances also alleged a lack of humility, an “’entitlement’ temperament,” a closed mind and an inconsistent “commitment to being candid,” the letter said. It deemed VanDyke “not qualified” for a spot on the U.S. Court of Appeals for the 9th Circuit.

The strongly worded review drew equally strong reactions at a Wednesday hearing of the Senate Judiciary Committee — from Democrats who called the ABA findings unusual and troubling as well as from Republicans who called it a low attack from a group they’ve long accused of bias against conservatives. But one charge was particularly upsetting to VanDyke himself: The ABA’s report that he “would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”

The accusation of anti-conservative bias by the ABA are absurd. Despite generally having a liberal perspective on policy and legal matters, their ratings of nominees are free from bias. If they were biased against conservatives, why did they give Neil Gorsuch its highest rating of “well qualified.” They did the same for Scalia back in the day. Justice Alito too. 137 of Trump’s 202 nominees have been rated as well qualified. Certainly doesn’t sound like conservative bias to me.

But it was that last accusation, that Van Dyke may not treat LGBT people fairly in cases before him, that really set him off. In fact, he burst into tears while discussing it at his confirmation hearing:

Asked if that was correct, the nominee struggled almost 15 seconds to find his words.

He started to cry.

“I did not say that,” he said in a shaky voice. He apologized to his listeners as he halted again, apparently too overcome to speak.

“It is a fundamental belief of mine that all people are created in the image of God and they should all be treated with dignity and respect,” he added, eyes still glistening.

Yeah, he didn’t actually say that, so it can’t be true. Nonsense. He has an anti-gay record that is not good. In 2004, while still in law school, he wrote that gay marriage would “hurt families, and consequentially children and society.” How is someone who believes that going to handle that issue and related ones equally and fairly? It’s certainly a legitimate concern. And the ABA didn’t flat declare that he wouldn’t, they noted that during questioning for his ABA rating, he wouldn’t affirmatively answer a question about whether he could or would treat LGBT people the same as others. That’s what happened and they said so. Hardly an unfair allegation, his whining aside.

All of this sounds pretty accurate to me. In my exchanges with him, he displayed pretty much all the traits the ABA said he had displayed with his colleagues — arrogance, pettiness, dishonesty, an air of entitlement and a well-developed persecution complex. Sounds a lot like the guy who nominated him, doesn’t it?

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