D.C. Circuit Review – Reviewed: LeBron James and Lawrence VanDyke

by Aaron Nielson — Friday, Nov. 8, 2019@Aaron_L_Nielson

Would LeBron James — one of the best basketball players of all time — be a good professional football player? Or, to a bit more realistic, had LeBron James never played basketball at all but instead had devoted himself to football, would he have thrived in the NFL? These are the sorts of questions that prompt a spirited debate. James has unbelievable vision and court sense. He also is extraordinarily coordinated and jumps very high. But does he run fast enough? And would he hold up under the physical punishment?

No one can answer these questions definitively. But I do know this: If in the middle of the debate, someone were to say that LeBron James wouldn’t be a great football player because he’s too short, I’d raise an eyebrow. That statement wouldn’t make sense, not because there aren’t arguments to be made against LeBron’s football potential, but because that particular argument is demonstrably wrong.

Why do I bring this up today? Two reasons. First, it is a quiet week in the D.C. Circuit* and this is something to write about. And second, because of Lawrence VanDyke, a former D.C. Circuit clerk and now a nominee to the U.S. Court of Appeals for the Ninth Circuit. In the interest of full disclosure, VanDyke and I have been friends since law school. I don’t see him often, but I do from time to time, and whenever we meet, we catch up. Our families also send each other Christmas cards.

Bear with me, but I see a connection between James and VanDyke. When deciding whether to confirm a nominee, members of the Senate must consider a number of reasonable factors. As to VanDyke, for instance, the Nevada senators haven’t returned blue slips; should that be disqualifying? Similarly, although he was Solicitor General of Nevada for four years, VanDyke didn’t grow up there or anything like that; has he spent enough time in-state? And VanDyke will be more of a formalist than an instrumentalist; should that bar his confirmation? I know how I would answer these questions — no, yes, and no. But I certainly understand the counterarguments.

These are not the reasons, however, that the American Bar Association offered when they recently gave VanDyke an “unqualified” rating. Instead, the ABA Standing Committee said this: “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 humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.” The Standing Committee also noted that some interviewees wondered whether “Mr. VanDyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community,” and noted that at oral argument, some interviewees say that he sometimes “missed issues fundamental to the analysis of the case.”

For what it is worth, based on my experience, these criticisms strike me as falling in the LeBron-James-is-too-short-to-play-football category. There are plausible arguments to be made about VanDyke, but these aren’t them.

Let’s start with lazy. VanDyke isn’t that. To do well in law school is hard. While living in that pressure cooker, I often would think to myself, “Won’t it be great to graduate?” But here is the funny thing: I continued to have that exact same thought for years after graduation! In my brain, there was a deep Pavlovian association between stress and law school that took several years to break. Why do I mention this? Because Lawrence VanDyke worked harder than I did. Not by accident, he ended up ranked very high in the class, while juggling law review duties to boot — something I never managed. So unless VanDyke has completely changed in the intervening years, I know he isn’t lazy.

Well, is he arrogant or entitled? No! These characterizations don’t just make me raise my eyebrow, they outright leave me shaking my head. The VanDyke I know isn’t a snob or a dismisser of ideas. I’ve never seen him act like he was better than anyone. Working with VanDyke is fun precisely because he rolls up his sleeves and tries to figure it out and is willing to learn from others.

In all of my interactions with him, VanDyke has also been a truthful person. I would be shocked if that turned out to be false; it would be so, so out of character. “But,” you wonder, “maybe he is sloppy or ignorant.” Again, I’ve haven’t seen it — and I’m not the only one. Nor do I think much of the claim that he is an “ideologue.” In my experience, he tries hard to understand arguments and engage with them. And most important of all, would he do his best to treat everyone fairly? Here, I think VanDyke’s response speaks for itself. No one is perfect, and all judges must commit themselves daily to fairness. But I have no reason to think that VanDyke wouldn’t do that — especially because he works hard and is humble. See supra.

So what happened? I see at least three options: (1) I never knew the true VanDyke; (2) VanDyke has changed and I’ve just missed it; or (3) the Standing Committee, for whatever reason, botched this one. Readers are free to discount my perspective. But based on what I know, I vote for (3). Whatever one might think about them, LeBron James isn’t short and Lawrence VanDyke isn’t lazy.

 

* The Court decided one case this week, and it is a good one to use to introduce students to the concept of associational standing. In Save Jobs USA v. DHS, Judge Tatel (joined by Judges Griffith and Silberman) concluded that “an an association representing Southern California Edison workers” has Article III standing to challenge a “rule that permits certain visa holders to seek lawful employment.” This opinion is — unsurprisingly, given its author — easy to read. I also learned something new about the D.C. Circuit while reading it: it turns out that a merits panel is bound by a decision of a motions panel.

 

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Note: Soon after publishing this post, I tweaked it for clarity and to remove typos.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

About Aaron Nielson

Professor Nielson is a professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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