We now have a situation of “he said, she said.” I believe VanDyke. Davenport’s account is utterly implausible. The Senate should call Davenport to testify under oath about her assertion. She should also be called upon to explain why her investigation appears not to have complied with the ABA’s own procedures in three important regards.
First, ABA rules require members to recuse themselves from an investigation if their “impartiality might reasonably be questioned.” In 2014, VanDyke ran for election to the Montana Supreme Court. The race was extremely divisive. According to public records, Davenport donated to VanDyke’s opponent. Based on those standards, Davenport should have recused herself. She should not have been the lead investigator.
Second, ABA rules state that when a nominee is rated as “‘not qualified,’ the Chair will appoint a second evaluator” who will conduct “a new interview of the nominee.” VanDyke was never interviewed a second time. The final letter considered only Davenport’s interview with VanDyke. A follow-up discussion could have resolved any doubt about the LGBTQ comment, but none was held.
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Third, the ABA rules provide that the written statement must be submitted to the Senate Judiciary Committee, as well as the nominee, 48 hours before the confirmation hearing. This gap is designed to address any possible errors, and perhaps to make last-minute corrections. In this case, the letter was released at 7 p.m., in advance of a hearing the next morning. VanDyke was ambushed.
At every juncture, the ABA seems to have cut corners. It apparently failed to ask VanDyke’s supporters to respond to charges against him. The letter may have mischaracterized VanDyke’s statements. And the investigation was led by a conflicted person who did not even appoint a second person to interview the nominee. The process was flawed from the outset, and should not be afforded any deference. Even if Davenport testifies, and justifies her actions, the damage has already been done—not to VanDyke, but to the ABA. This letter demonstrates that the organization can no longer be trusted to perform a fair assessment of nominees. (William Hubbard, chairman of the ABA committee that conducts judiciary-nominee evaluations, said in a statement, “The evaluations are narrowly focused, nonpartisan, and structured to assure a fair and impartial process.”)
What happens next? Nominees, of course, could refuse to meet with the ABA. Though that option includes a risk: The most damning allegations will not be refuted. There is a far more productive approach. These interrogations should be treated as hostile depositions. A court reporter and videographer should be present, as well as privately retained counsel to push back on unfounded accusations. In the event that the nominee is rated as qualified, there would be no need to release the transcript. Going forward, when a nominee is rated as unqualified, the transcript should be released, and the recording should be posted publicly online. There is no reason to rely on disputed accounts of the interview.