December 6, 2019

United States Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510


Re: Opposition to Confirmation of Lawrence VanDyke

Dear Senator:

On behalf of the National Employment Lawyers Association (NELA) and its 4000 circuit, state, and local affiliate members across the country, we write to express our strong opposition to the confirmation of Lawrence VanDyke to be an appellate judge for the United States Court of Appeals for the Ninth Circuit.

NELA is the largest professional membership organization in the country comprised of attorneys who represent workers in labor, employment, and civil rights disputes. Founded in 1985, NELA advances employee rights and serves lawyers who advocate for equality and justice in the American workplace. Our members litigate daily in every federal district court and circuit, affording NELA a unique perspective on how employment cases actually play out on the ground and deep insight with respect to the profound impact of the judiciary on the daily lives and the rights of working people.

Mr. VanDyke Lacks The Temperament, Knowledge, And Commitment To The Truth That Are Foundational Qualifications For A Federal Judge

Extensive negative feedback about Mr. VanDyke’s termperament prompted the American Bar Association (ABA) to rate Mr. VanDyke “Not Qualified.”1 The ABA spoke with and interviewed some 60 judges and attorneys who have worked with the nominee. The ABA letter explaining their rating summarizes interviewees as having described Mr. VanDyke as:

Presiding over a trial court both effectively and fairly is a significant responsibility, and requires significant knowledge of rules of evidence, civil and criminal procedure, and the skills to manage the proceeding, so that no party is prejudiced as a result of the judge’s lack of knowledge and skill. A lawyer whose only experience is writing dispositive motions, appeals, and amicus briefs, should not be given a lifetime appointment as a federal district court judge.

Arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day 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.2

One of Mr. VanDyke’s colleagues in the Montana Solicitor General’s office, Michael Black, provided a 2014 email stating, “Ever since he has arrived, Mr. VanDyke has been arrogant and disrespectful to others, both in an outside of this office. He does not have the skills to perform, nor desire to learn how to perform, the work of a lawyer.”3 Another colleague added, “Your frustration does not exceed ours.” 4

During the public hearing before the Senate Judiciary Committee on Mr. VanDyke’s confirmation, he was confronted with statement’s made by his peers about their view of him. Mr. VanDyke expressed anger and resentment and ultimately broke down in tears.5 Although it is human to show emotion, his inability to respond in a reasoned manner to a serious question being asked of him, namely whether he would treat LGBTQ individuals fairly, clearly demonstrates that he lacks the temperament necessary for a federal judge. In any courtroom it is, after all, the judge who presides over litigation. It is incumbent upon the individual in that role to remain neutral (which is not the same as offering only the appearance of neutrality), to be calm and collected, and to ensure, as much as possible, that the parties do the same.

As of December 2, 2019 President Trump has nominated 209 individuals for federal judgeships. Of that group, nine, or 4.3%, including Mr. VanDyke, were rated not qualified.6 It is notable that a substantial majority of the ABA rating committee (between 10-13 of 14 voting members) considered Mr. VanDyke “Not Qualified” while only 1-4 considered him Qualified.7 It should also be noted that William Hubbard, the author of the ABA letter characterizing Mr. VanDyke as unqualified, is a long-time donor to Chairman Lindsey Graham (R-SC), so he cannot be characterized as an individual who supported the unqualified rating based on partisan concerns.

Mr. VanDyke’s Repeated Expressions Of Animus Toward LGBTQ Individuals And The LGBTQ Community Should Be Disqualifying

It should go without saying that fairness toward every litigant is a baseline qualification for a federal judge. The fact that a judicial nominee, such as Mr. VanDyke, has a long record that supports the conclusion that the nominee could not be fair toward one or more groups of potential litigants, is disqualifying. Some of the individuals the ABA interviewed expressed concern that Mr. VanDyke could not be “fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community.” According to the ABA Report, when questioned about his views, “Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”

Indeed, Mr. VanDyke has a long record of hostility to LGBTQ people dating back at last 15 years when he wrote a 2004 op-ed piece mischaracterizing inconclusive research about the children of gay parents as providing, “ample reason for concern that same-sex marriage will hurt families.”8 Mr. VanDyke’s op-ed complained about laws to protect members of the LGBTQ community passed in Canada, England, and Sweden and criticized the “chimera of ‘tolerance’ affiliated with homosexual rights.”9 Mr. VanDyke never has disavowed these statements.

In 2010, Mr. VanDyke authored an amicus brief in Christian Legal Society v. Martinez arguing that college student groups could exclude LGBTQ people from membership under the First Amendment; the Supreme Court disagreed. In his Senate questionnaire, Mr. VanDyke cited his work on this case as one of his ten most important cases. In a 2013 email to the Montana Solicitor General, Mr. VanDyke advocated filing an amicus brief in Elane Photograpy on behalf of a photographer who did not want to work at a same sex wedding. Mr. VanDyke said that the goal was to “establish that gay rights cannot always trump religious liberty.” Once Mr. VanDyke became the Montana Solicitor General, he signed on to oppose every LGBTQ rights case, including Hollingsworth v. Perry and United States v. Windsor. In both instances he sided with those who sought to deny gay individuals access to civil marriage.

Finally, Mr. VanDyke’s animus to the LGBTQ community is perhaps best exemplified by his representation of and work for the Alliance Defending Freedom. The Alliance has called for the sterilization of transgender people and criminalization of same-sex sexual activity. The group has been designated it as a hate group by the Southern Poverty Law Center.10

Conclusion

Our nation, and each one of us, functions on a daily basis thanks to the every-day working people who are NELA members’ clients. Servers in restaurants, parking attendants, teachers, nurses, and millions of other working people keep our society intact. The working people of our nation and their families who depend on them deserve federal judges who clearly demonstrate that they respect the Constitution, the rule of law, and the intent of Congress in passing our civil and workplace rights laws. Loyalty to our Constitution and civil rights laws is a baseline qualification for a federal judge. Mr. VanDyke’s record is inconsistent with these most basic expectations. NELA strongly urges you to stand on behalf of working people across this country and to oppose the confirmation of Lawrence VanDyke. If you have questions or wish to discuss this letter, please contact Laura Flegel, Legislative & Public Policy Director at lflegel@nelahq.org or (202) 898-2880. Thank you for your consideration.

Sincerely,


Wade B. Cowan
President, NELA Executive Board

 


Laura M. Flegel
Legislative & Public Policy Director


[1] http://cdn.cnn.com/cnn/2019/images/10/30/2019.10.29_chair_rating_letter_to_graham_and_feinstein_re_nomination_of_lawrence_j.c._vandyke.pdf

[2] Id.

[3]https://s3.amazonaws.com/s3.documentcloud.org/documents/1284252/foi-request-re-montana-solicitor-sept-2014.pdf (page 667).

[4] Id. (page 666).

[5] https://www.washingtonpost.com/politics/2019/10/30/trump-judicial-nominee-cries-over-scathing-letter-american-bar-association/

[6] https://ballotpedia.org/ABA_ratings_during_the_Trump_administration

[7] By way of contrast, the ABA committee unanimously rated Justice Kavanaugh well-qualified. The ABA does not release precise vote totals. See: https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Backgrounder.authcheckdam.pdf.

[8] https://www.law360.com/articles/1221858/contested-9th-circ-trial-court-picks-move-forward

[9] See https://www.judiciary.senate.gov/imo/media/doc/VanDyke%20Responses%20to%20QFRs.pdf, (page 55).

[10] https://www.splcenter.org/fighting-hate/extremist-files/group/alliance-defending-freedom.