CHAIR Please reply to: William C. Hubbard 17th Floor 1320 Main Street Columbia, SC 29201 William C. Hubbard Nelson Mullins Riley & Scarborough LLP 1320 Main Street, 17th Floor Columbia, SC 29201 william.hubbard@nelsonmullins.com FIRST CIRCUIT Carlos A. Rodriguez-Vidal AIG Plaza, 15th Floor 250 Munoz Rivera Avenue San Juan, PR 00918 SECOND CIRCUIT October 29, 2019 Vincent Chang 500 Fifth Avenue New York, NY 10110 THIRD CIRCUIT Kenneth Allen Polite, Jr. 1701 Market Street Philadelphia, PA 19103 FOURTH CIRCUIT Pamela J. Roberts Suite 1200 1441 Main Street Columbia, SC 29201 FIFTH CIRCUIT J. Douglas Minor, Jr. Suite 1000 188 E. Capitol Street Jackson, MS 39201 SIXTH CIRCUIT John B. Pinney Suite 1800 312 Walnut Street Cincinnati, OH 45202 SEVENTH CIRCUIT John Skilton Suite 201 33 East Main Street Madison, WI 53703 EIGHTH CIRCUIT Sonia Miller-Van Oort Suite 100 120 South Sixth Street Minneapolis, MN 55402 NINTH CIRCUIT Marcia Davenport Suite 200 900 North Last Chance Gulch Helena, MT 59601 Koji Fukumura 4401 Eastgate Mall San Diego, CA 92121 TENTH CIRCUIT Jennifer H. Weddle Suite 3300 1144 15th Street Denver, CO 80202 ELEVENTH CIRCUIT Suzanne E. Gilbert Suite 2600 200 South Orange Avenue Orlando, FL 32801 D.C. CIRCUIT Matthew G. Kaiser 8th Floor West 1099 14th Street NW Washington, D.C. 20005 FEDERAL CIRCUIT Gail Lione 1900 K Street NW Washington, D.C. 20006 STAFF COUNSEL Denise A. Cardman Suite 400 1050 Connecticut Avenue, NW Washington, DC 20036 Via Email The Honorable Lindsey Graham Chairman Committee on the Judiciary United States Senate Washington, DC 20510 Re: Via Email The Honorable Dianne Feinstein Ranking Member Committee on the Judiciary United States Senate Washington, DC 20510 Nomination of Lawrence J.C. VanDyke to the United States Court of Appeals for the Ninth Circuit Dear Chairman Graham and Ranking Member Feinstein: The American Bar Association’s Standing Committee on the Federal Judiciary has received a full report on Lawrence J.C. VanDyke and a supplemental review by a former chair of the Committee. The Committee’s work is based solely on a review of integrity, professional competence, and judicial temperament. Based on these criteria, a substantial majority of the Committee has determined that Mr. VanDyke is “Not Qualified,” and a minority determined that he is “Qualified” to serve on the United States Court of Appeals for the Ninth Circuit. The majority rating represents the Standing Committee’s official rating. I write to offer a brief explanation of this rating. The evaluator’s Formal Report is based on 60 interviews with a representative cross section of lawyers (43), judges (16), and one other person who have worked with the nominee in the four states where he has worked and who are in a position to assess his professional qualifications. They 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 evaluator obtained detailed background materials such as more than 600 pages of publicly produced emails involving and/or written by Mr. VanDyke, news reports where Mr. VanDyke had been interviewed, and articles and opinions written about him. Mr. VanDyke is a highly educated lawyer with nearly 14 years of experience in appellate law, including one year as a law clerk, an associate in a law firm, and as a Solicitor General for over five-plus years, first in Montana and then Nevada, two states in the Ninth Circuit where he would serve if confirmed. The Committee was tasked with balancing Mr. VanDyke’s accomplishments with strong evidence that supports a “Not Qualified” rating. Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-today practice including procedural rules. There was a theme that the nominee lacks October 29, 2019 Page 2 humility, has an “entitlement” temperament, does not have an open mind, and does not always have a commitment to being candid and truthful. 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 would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community. Even though Mr. VanDyke is clearly smart, comments were made that in some oral arguments he missed issues fundamental to the analysis of the case. There were reports that his preparation and performance were lacking in some cases in which he did not have a particular personal or political interest. While the evaluator was careful in her interview with Mr. VanDyke not to name interviewees, the nature of the issues that gave rise to some of the negative comments had been publicly discussed and other adverse comments could be raised without identifying interviewees. The negative issues discussed in this letter were thoroughly discussed with interviewees and vetted with the nominee. Significantly, the interviewees’ views, negative or positive, appeared strongly held on this nominee. The Committee’s work is guided by the Backgrounder which reflects that judgment is a component of professional competence, and that open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under law are components of judicial temperament. Based on these principles, a substantial majority of the Committee determined that the nominee is “Not Qualified” to be a Ninth Circuit judge. Very truly yours, William C. Hubbard WCH:cks cc: Pat A. Cipollone, White House Counsel (via email) Lola A. Kingo, Chief Nominations Counsel, Office of Legal Policy, U.S. Department of Justice (via email) Lawrence J.C. VanDyke (via email) ABA Standing Committee on the Federal Judiciary (via email) Denise A. Cardman, ABA Standing Committee on the Federal Judiciary, Staff Counsel (via email)