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1 November 20, 2019 the Honorable Lindsey Graham Chairman, Senate November 20, 2019 The Honorable Lindsey Graham Chairman, Senate Judiciary Committee 224 Dirksen Senate Office Building Washington, DC 20510 The Honorable Diane Feinstein Ranking Member, Senate Judiciary Committee 152 Dirksen Senate Office Building Washington, DC 20510 RE: OPPOSITION TO CONFIRMATION OF LAWRENCE VANDYKE TO THE U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT Dear Chairman Graham and Ranking Member Feinstein: On behalf of the NAACP, our nation’s oldest, largest and most widely recognized grassroots-based civil rights organization, I strongly urge you to oppose the confirmation of Lawrence VanDyke to the U.S. Court of Appeals for the Ninth Circuit. For decades, the NAACP has fought to ensure that nominees to the federal courts are diverse, fair, independent, and committed to the progress our nation has made in civil rights. The Ninth Circuit is our nation’s largest circuit, both in jurisdiction and number of judges. Its jurisdiction includes the nine states of Washington, Oregon, California, Arizona, Nevada, Idaho, Montana, Hawaii, and Alaska, as well as Guam and the Northern Mariana Islands. The court has 29 authorized judgeships. In less than three years, President Trump has already appointed eight judges to the Ninth Circuit. If Lawrence VanDyke and another nominee, Patrick Bumatay, are confirmed, President Trump will have appointed more than one-third of this court. Lawrence VanDyke’s nomination to the Ninth Circuit is an outrage for several reasons. First, as a white male, Mr. VanDyke will not enhance the diversity of the federal bench generally and of the Ninth Circuit in particular. Despite its large size and significant jurisdiction, only four African-American judges have ever served on the Ninth Circuit; only two serve in active status. Although President Trump has nominated ten individuals to the Ninth Circuit, none are African American. This is a powerful example of the appalling lack of diversity in Trump’s judicial selections overall. Trump has nominated no African Americans to the appellate courts. His almost exclusive focus on white male nominees is reversing decades of progress to diversify our federal judiciary. Second, the Senate should refuse even to consider Lawrence VanDyke’s nomination. The Senate has long deferred to the views of home-state senators on judicial nominees in determining whether nominees should proceed through the confirmation process. If a senator from the nominee’s state objected to a nominee, he 1 or she registered disapproval by failing to return a “blue slip” on the nomination to the Senate Judiciary Committee. If a home-state senator failed to return a blue slip, the nomination would not proceed. But the Republican Senate has upended this longstanding practice to the detriment of the American people. Several Trump appellate nominees have failed to receive endorsements by home-state senators, yet the Senate nevertheless moved forward with their nominations. In Lawrence VanDyke’s situation, the Senate is overriding the objections of two home-state senators, Senator Catherine Cortez Masto (D-NV) and Senator Jacky Rosen (D-NV). The irony is that Nevada is not truly VanDyyke’s home-state even though Trump has nominated him to one of the two Nevada seats on the Ninth Circuit. Lawrence VanDyke was born in Texas and attended college in Montana. He spent the first decade of his legal career in Washington, Texas and Montana, and even ran for the Montana Supreme Court. After losing that race, the Republican Attorney General in Nevada offered him a job as state solicitor general, despite having never lived or practiced law in Nevada. VanDyke then spent four years in Nevada, sitting for the Nevada bar exam two years into his solicitor general position. He then left the state to join Trump’s Justice Department. It is outrageous to think the White House cannot find one Nevada-bred Republican lawyer to fill this rarely available seat on the Ninth Circuit. Nevada Senators have stated: “We’re frustrated the White House is choosing to ignore the bipartisan work undertaken by our offices in concert with Nevada’s legal community to identify and recommend qualified Nevadans for the Ninth Circuit.” VanDyke is certainly not a “qualified Nevadan.” Lawrence VanDyke’s nomination is an assault on the integrity and reputation of the judiciary. Mr. VanDyke is demonstrably unqualified to sit on the Ninth Circuit. In a stunning rebuke of Lawrence VanDyke’s qualifications, the American Bar Association (ABA) has rated Mr. VanDyke “Not Qualified.” The ABA issued a letter unprecedented in its criticism and detailing the many ways in which VanDyke fails to meet the qualifications for a federal judgeship. The review was based upon dozens of interviews with lawyers and judges who know Lawrence VanDyke the best. These “include but are not limited to attorneys who worked with him and who opposed him in cases and judges before whom he has appeared at oral argument.” The ABA letter is signed by William C. Hubbard, the Chair of the ABA Standing Committee on the Federal Judiciary. Mr. Hubbard served as president of the ABA from 2014-15 and is a partner in South Carolina’s largest law firm, Nelson Mullins. Chairman Graham, as you noted in your keynote speech at the ABA’s annual meeting in 2012, the ABA has provided an “invaluable service” in rating judicial nominees. You also stated that the ABA rating is the “gold standard” and “filter” for “who should be on the bench” and that it is “only appropriate [to oppose a judicial nominee] when the person’s not qualified for the job.” We could not agree more. The most shocking revelation in Mr. Hubbard’s letter is his condemnation of Mr. VanDyke’s inability to be fair as a judge. Fairness and impartiality are essential requirements of judging, on any bench. The integrity of the judiciary is dependent upon the trust and confidence of the public it serves. Impartiality is a fundamental prerequisite when considering the importance of judicial decision-making at the federal level, where interpretations of the Constitution and federal statutory law are at stake. Yet, Mr. VanDyke failed this test miserably in the view of the lawyers and judges most familiar with him. The ABA wrote: “Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.” That Mr. VanDyke would refuse to assure anyone reviewing his judicial qualifications about his willingness to be fair is appalling. The ABA also reported that interviewees raised concerns that he “does not have an open mind” and “has an ‘entitlement’ temperament.” 2 Even more alarming is that the ABA condemned Mr. VanDyke for manifesting unfairness toward the LGBTQ community in particular. LGBTQ persons have historically been victimized by egregious prejudice and hostility and today still suffer from discrimination in all facets of social and economic life. If ever there was a group to which a nominee would want to affirmatively pledge his or her fairness in court, it would be this community. The ABA letter raises deeply disturbing questions about whether Mr. VanDyke could treat such litigants on a fair and impartial basis. It stated: “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’s record supports the ABA finding. He has longstanding ties to the Alliance Defending Freedom (ADF), which is classified as a hate group by the Southern Poverty Law Center and is described as “a legal advocacy and training group that has supported the recriminalization of homosexuality in the U.S. and claims that a ‘homosexual agenda’ will destroy Christianity and society.” ADF’s tax filing states its goal is to “train a new generation of lawyers who will rise to positions of influence and leadership as legal scholars, litigators, judges… who will work to ensure that justice is carried out in America’s courtrooms.” ADF seeks to indoctrinate law students and young lawyers with its extremist ideology through its controversial and secretive Blackstone Legal Fellowship Program in which VanDyke participated. After law school, VanDyke served as an allied attorney with ADF, and took positions consistent with its ideology. He supported bans on same sex marriage, joined a brief in support of DOMA, and filed an amicus brief challenging a law school policy that prohibited discrimination against LGBTQ students. It is difficult to overstate the devastating impact of the ABA’s conclusions on this nomination. In reviewing nominees to the federal judiciary, the ABA inquires about and makes a determination about the nominee’s judicial temperament. Among the factors it considers are “open-mindedness, freedom from bias and commitment to equal justice.” If a judicial nominee fails this fundamental test, he or she should not become a federal judge. I am deeply familiar with the ABA’s judicial temperament standard and the consequence of not meeting it. In 2006, President George W. Bush nominated Michael Wallace to the U.S. Court of Appeals for the Fifth Circuit, specifically to occupy a seat from Mississippi where I live. Along with civil rights organizations, I opposed Mr. Wallace’s nomination for good reason. After interviewing the nominee and nearly 70 judges and lawyers who knew Mr. Wallace, the ABA rated him “Not Qualified” because he lacked the required judicial temperament. The ABA representative overseeing the review reported that “judges and lawyers who had interacted with Mr. Wallace concluded that he lacked the freedom from bias necessary to be an effective judge.” In testimony before this Committee, the ABA reported that “lawyers raised concerns regarding Mr. Wallace’s open-mindedness and questioned whether he would be a fair judge” and that he “had not shown a commitment to equal justice under the law.” Mr.
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