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.”
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.
The emotional response came an hour and a half into a hearing for the latest judicial nominee to draw Democrats’ scrutiny as the Trump administration installs a record number of new, conservative judges. VanDyke quickly came under fire Wednesday for his past positions on issues such as gun control, environmental protections and abortion — as well as LGBTQ rights.
Sen. Dianne Feinstein (D-Calif.) on Wednesday noted VanDyke’s support for a same-sex marriage ban in Nevada, where he served as solicitor general. Sen. Patrick J. Leahy (D-Vt.) raised an op-ed VanDyke wrote in 2004 while attending law school, in which he argued that same-sex marriage would “hurt families, and consequentially children and society.”
“My personal views have definitely changed since 2004,” VanDyke told Leahy. But he maintained that, regardless, his opinion would not intrude on his decisions as a judge.
For Democrats, the ABA’s letter fueled existing doubts about the deputy assistant attorney general for the Justice Department’s Environment and Natural Resources Division.
“Fairly damning,” Sen. Christopher A. Coons (D-Del.) called it. “Some pretty darned serious concerns,” echoed Sen. Sheldon Whitehouse (D-R.I.), saying the litany of colleagues’ reservations could not be brushed aside. Leahy said he’d never encountered a letter like the VanDyke assessment in his 45 years in Congress.
VanDyke did not provide comment, but the Justice Department said in a statement that the attorney’s “long record of public service and his extensive litigation experience make him exceptionally well qualified."
“And as today’s hearing confirmed, Mr. VanDyke is deeply committed to the rule of law and to treating all people fairly,” the statement added.
VanDyke said at Wednesday’s hearing that his ABA interviewer hurried through his responses to the criticisms they’d found. The Justice Department said it did not have comment on what may have caused the ABA to say VanDyke did not affirm his fairness to all litigants.
During the hearing, Republicans took aim at the ABA as VanDyke said he’d been “disappointed, shocked and hurt” to read the group’s conclusions. Sen. Josh Hawley (R-Mo.) said he was outraged that VanDyke’s lead ABA evaluator once donated $150 to the nominee’s political opponent, in a 2014 state Supreme Court race — a fact that “probably explains the total ad hominem nature of this disgraceful letter,” he said. He dismissed the ABA’s findings as “hearsay,” noting that the group did not detail examples to support its conclusions.
Republican lawmakers have long called the ABA unfair. When the group criticized another pending Trump judicial nominee, Sarah Pitlyk, as inexperienced, Sen. Ted Cruz (R-Tex.) blasted the ABA for “behaving as a partisan mouthpiece.” He pointed to donations from some group members to Democrats.
But such complaints aren’t universal among Republicans. Amid the fight over Pitlyk, Sen. Richard J. Durbin (D-Ill.) pointed out that Senate Judiciary Chairman Lindsey O. Graham (R-S.C.) had also received money from an ABA leader. Graham, in his response, called the organization a “fine group” whose staff he trusts despite what he described as a liberal bias.
While Hawley and other senators charged the ABA with playing politics, Whitehouse said he saw partisan maneuvering in all the criticism.
“I can’t help but notice that colleagues on both sides of the aisle don’t hesitate to herald the ABA process when it is supportive of a nominee that they would like to see get on the court,” he said.
As a solution to Republicans’ concerns about the ABA’s conclusions, Whitehouse suggested calling on the group to give the Judiciary Committee more explanation of its findings in a private setting, as it has done in the past.
The ABA continues to deny bias.
“The evaluations are narrowly focused, nonpartisan, and structured to assure a fair and impartial process,” William Hubbard, chair of the ABA’s Standing Committee on the Federal Judiciary, wrote in a statement.
The ABA has deemed 97 percent of the 264 Trump administration nominees it has evaluated to be either “well qualified” or “qualified,” he said.
Hubbard added that the “committee’s work is insulated from, and independent of, all other activities of the ABA and its leadership.”
Attorney Marcia Davenport, the lead evaluator who drew Republicans’ ire for her 2014 donation before joining the standing committee, did not respond to a request for comment.