Trump Continues to Appoint Unqualified Ideologues to the Federal Courts

At the state level, judges are either elected or appointed by the state legislature and serve for set terms before they have to either seek re-election or re-appointment. Virginia follows the appointment system and the Virginia Supreme Court conducts regular sworn surveys of practicing attorneys as to the competence, demeanor and knowledge of state court judges at all levels. If a judge receives consistently bad survey results, that judge may likely not be reappointed.  The system seeks to protect both the courts and the public from incompetent and/or unqualified judges.  The federal courts have no counterpart system of judicial review and judicial appointments are for life.  The only chance given to weed out unqualified or biased judges is at the judicial confirmation hearing level where supporters and opponents of the appointment get to be heard.  One of the voices heard is that of the American Bar Association which, based on extensive surveys, provides documentation as to whether an individual is qualified for a life time appointment.  The Trump/Pence regime has consistently been nominating a number of unqualified individuals and sadly the GOP controlled Senate has been rubber stamping such nominees to the long term detriment of the judicial system and public.  A piece in the Washington Post looks at one such unqualified nominee who has a documented history of being stridently anti-LGBT.  Here are highlights:

The American Bar Association had no shortage of criticism in its assessment of the Trump administration’s new judicial nominee.

Colleagues found Lawrence VanDyke to be “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice,” the chair of an ABA committee wrote in the scathing letter, the result of 60 interviews with lawyers, judges and others who worked with the Justice Department attorney. Acquaintances also alleged a lack of humility, an “’entitlement’ temperament,” a closed mind and an inconsistent “commitment to being candid,” the letter said. It deemed VanDyke “not qualified” for a spot on the U.S. Court of Appeals for the 9th Circuit.

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.

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.” “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.

Republican lawmakers have long called the ABA unfair. . . . 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.

“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.”

A full review of Van Dyke's extreme anti-LGBT history can be found on blogger friend Joe Jervis' blog here.  Van Dyke is a right wing Christian extremist whose extreme views would harm non-white, non-Christian, and non-heterosexual litigants who might come before him.  His nomination needs to be rejected. 

ABA Unanimously Passes Resolution Condeming "Gay Panic" Defense

Time and time again we have sadly seen those who murder gays use the "gay panic defense" - i.e., that they panicked and flipped out and acted unintentionally - to justify murder and convince juries to acquit them of what is by any other standard noting less than cold blooded murder.  Now, the American Bar Association ("ABA") has adopted a resolution condemning the "gay panic defense" and seeking to have its use curtailed.  It goes without saying that the "godly Christian" folk will be condemning the ABA just as that constantly condemn gays.  Here are highlights on the ABA's action via The Edge:

As reported in the ABA Journal, yesterday during the annual meeting of the American Bar Association in San Francisco, the House of Delegates - the ABA’s governing body, unanimously passed a resolution urging federal, state, local and territorial governments to pass legislation curtailing the availability and effectiveness of the use of "gay panic" and "trans panic" defenses by criminal defendants.

In a press release issued by the National LGBT Bar Association, executive director D’Arcy Kemnitz said "The ABA’s adoption of this measure sends a clear message to state legislatures that legal professionals find no validity in the sham defenses mounted by those who seek to perpetuate discrimination and stereotypes as an excuse for violence." Further stating, "The ’gay panic’ and ’trans panic’ defenses have been used to try and excuse some of the most heinous violence exacted against innocent victims. State legislatures should immediately move to enact the ABA’s recommendation by passing laws banning ’panic’ defenses."

The full language of the adopted resolution reads as follows:

RESOLVED, That the American Bar Association urges federal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the "gay panic" and "trans panic" defenses, which seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction. Such legislative action should include:

(a) Requiring courts in any criminal trial or proceeding, upon the request of a party, to instruct the jury not to let bias, sympathy, prejudice, or public opinion influence its decision about the victims, witnesses, or defendants based upon sexual orientation or gender identity; and

(b) Specifying that neither a non-violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter, or to mitigate the severity of any non-capital crime.

 The theory of "gay panic" goes back to 1920 when the term was first coined by psychiatrist Edward J. Kempf in his textbook "Psychopathology", in which he describes an acute, brief reactive psychosis suffered by the target of unwanted homosexual advances.

"Gay panic" has been used as a defense in recent years on a number of high profile assault and murder cases, most notably the 1995 trial of Jonathan Schmitz, who killed his friend Scott Amedure after learning, during a taping of "The Jenny Jones Show," that Amedure was sexually attracted to him. Schmitz confessed to committing the crime, but claimed that Amedure’s homosexual overtures angered and humiliated him. Three years later, the defense would be used during the trial of the two men accused of killing university student Matthew Shepard. The strategy proved ineffective or inadmissible and in both cases, ended with convictions for the defendants.

"Too many people have hidden for far too long behind baseless ’panic’ defenses," Kemnitz said. "Judges, lawmakers and juries must demand that these practices come to an end and juries must be provided with instructions advising juries to make their decisions free of improper bias and prejudice. Today’s ABA resolution is an important first step towards realizing that goal."

The reality is that anyone who doesn't have issues with their own sexual orientation - which rules out Ken Cuccinelli - isn't going to react violently to the discovery that some one is gay or that said individual finds them attractive.  The defense is in a word bullshit.

LGBT Attorneys Talk of Experiences

The fact that LGBT attorneys exist is slowly coming to be recognized in some quarters, including the American Bar Association which has now created a Commission on Sexual Orientation and Gender Identity. Sadly, in Virginia, the Virginia State Bar acts as if LGBT attorneys do not exist and certainly are not something to be discussed. Similarly, even though the Virginia Canons of Judicial Conduct requires judges to be unbiased based on sexual orientation or else recuse themselves from a case involving LGBT litigants, virtually NOTHING is done to enforce these requirements and LGBT litigants are crucified for their sexual orientation regularly. Indeed, of five gays I know personally currently going through divorces, only one had a judge that did not take the divorcing husband's sexual orientation into consideration and use it as a reason to treat him with extreme harshness.

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The Windy City Times has a story that looks at the experiences of some LGBT attorneys who - like myself- in some instances found themselves unwelcome because of their sexual orientation and their unwillingness to live in the closet. The irony, of course, is that most top law schools have anti-discrimination policies that interviewing law firms must sign whereby they swear that they will not discriminate against hiring and promoting LGBT attorneys. In Virginia, law firms sign these statements and then go right ahead and discriminate - one of the reasons I have told LGBT law students to seek careers outside of Virginia. Here are some story highlights:

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Lawyers talked about their experiences in school and work in "The Gay Bar: LGBT Attorneys in the Profession," a forum held July 31 at the Hotel Intercontinental, 505 N. Michigan, as part of the American Bar Association's annual meeting. The attorneys spoke as the ABA's Commission on Sexual Orientation and Gender Identity, chaired by San Francisco attorney Jeffrey G. Gibson, presided over the event and listened intently to the experiences.

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Orr talked about working with an investment bank in Virginia—a place where he did not feel welcome. "They started off each day with a prayer," he said. When he eventually ended up with the Washington, D.C., office of Baker & McKenzie, he said, " [ the firm ] didn't know what they were getting," as the audience laughed. Orr indicated that he made it quite clear from the start that he was gay. He admitted that the firm has its challenges: "In order to have a breakthrough ... firms need to understand what diversity means."

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Brent Adams, acting secretary of the Illinois Department of Financial and Professional Regulation, talked about attending the New York School University of Law as well as working at the Chicago law firm Katten Muchin Roseman ( then known as Katten Muchin Zavis ). Adams said that he was very out in law school and at work, serving as chair of the Bisexual Gay & Lesbian Law Students Association—commonly referred to as "Big Lisa." He received only one callback when he applied with ( mostly ) Chicago firms—from Katten—although he had no evidence that homophobia was involved in the lack of positive responses. When he was at Katten, a hiring partner asked me where he was from, and Adams responded, "Oklahoma." He laughed and said, "Well you know they only raise two things in Oklahoma." ( For those who don't know, the answer to that saying is "steers and queers." ) Adams informed his own mentor about what happened, and the partner visited him the next day "to see how he was doing."

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"When I came out to the lesbian and gay law students as transgender, I was not met with the welcome atmosphere that I had anticipated," Levasseur continued. "One student asked me invasive and inappropriate questions about my genitals. Another said, 'I just don't get it.' ... I quickly realized that the community that had once been my support no longer included me. I didn't know where to turn."
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A particular low point occurred when "during my first year, as I walked from the parking lot towards the law school building, an SUV sped up towards me as if to hit me," he said. "I jumped out of the way just in time and turned to see three of my classmates, future attorneys, in the car, laughing. At the time, I was not immune to threats on my life based on my gender expression. I just didn't expect it at my law school."

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The above quotes give you a sense of how far the legal profession has to go in actually embracing diversity. States like Virginia - and anti-gay law firms - are losing many talented and innovate people because they continue to put more store in religious based discrimination rather than the Constitution's promise of equality. Sadly, medicine and accounting seem even more bigoted that the legal community.