[Congressional Record Volume 165, Number 173 (Thursday, October 31, 2019)]
[Senate]
[Pages S6350-S6352]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF LAWRENCE VANDYKE

  Ms. CORTEZ MASTO. Madam President, I rise today in opposition to the 
nomination of Lawrence VanDyke to serve on the U.S. Court of Appeals 
for the Ninth Circuit.
  Mr. VanDyke fits neatly into this administration's pattern of picking 
Federal judges for our circuit courts of appeal without meaningful 
input from home State Senators. The President continues to select 
ideologically extreme nominees like Mr. VanDyke, and the White House is 
putting forward people without enough experience for the momentous 
roles they have been chosen to serve.
  Mr. VanDyke has been nominated to fill a Nevada seat on the Ninth 
Circuit even though he is not a Nevadan. He didn't grow up in my State. 
He doesn't appear to own property there. He doesn't seem to have family 
ties. And he was an active member of the Nevada State bar for only 2 
years.
  Senator Rosen and I engaged with the White House to put forward 
highly respected Nevadans with bipartisan support, but our suggestions 
were summarily ignored because the White House was laser-focused on Mr. 
VanDyke.
  I want to be clear. The administration did not meaningfully consult 
about this nomination with Nevada Senators, and the result is a poor 
nominee.
  First and foremost, I am extremely concerned about the effect that 
Lawrence VanDyke's lifetime appointment would have on women's 
reproductive rights in America. As Montana's solicitor general, Mr. 
VanDyke supported an Arizona abortion ban. In an amicus brief in Horne 
v. Isaacson, he contended that the constitutional right to choose 
should be revisited. He also defended a Montana law that made it harder 
for young women in that State to seek an abortion, and he advocated for 
letting corporations sidestep their obligations to provide insurance 
coverage for contraception.
  Based on this record, I fear that, as a Federal judge, Mr. VanDyke 
would limit women's health choices in Nevada and throughout the 
country, including their access to birth control.
  His record on LGBTQ rights is also dismal. Mr. VanDyke has ties to 
two ideologically extreme, anti-LGBTQ groups that the Southern Poverty 
Law Center has designated as hate groups. Those are the Alliance 
Defending Freedom and the Family Research Council. These ties are 
hardly surprising given that Mr. VanDyke has opposed gay rights since 
law school, when he wrote an article for the Harvard Law Record. This 
is that article: ``One student's response to `A Response to Glendon.' 
'' It is dated March 11, 2004, by Lawrence VanDyke. In this article, he 
promotes the truth that same-sex marriage would hurt families, 
children, and society. This is that article, and this is his quote--
clearly not only his writing but

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his intent and thoughts behind what we have fought for in this country 
for LGBTQ rights in America for the last 10 years. What he says is, 
``What is quite settled, however, is that children on average fare best 
in stable, two parent families. This, combined with the correlative 
evidence of the decline in the family unit in Scandinavia, where de 
facto same-sex marriage has been around for about a decade, does 
provide ample reason for concern that same-sex marriage will hurt 
families and consequentially children and society.'' Those are his own 
words.
  As solicitor general of Montana, he also strongly criticized LGBTQ 
anti-discrimination laws and worked to carve out religious exemptions 
to them. When signing Montana on to an amicus brief arguing that a 
photography company could refuse to photograph a same-sex wedding, Mr. 
VanDyke described the case, which is Elaine Photography v. Willock, as 
important because it would establish that ``gay rights cannot always 
trump religious liberty.''
  What you have here is an email, while he was a solicitor general in 
Montana, talking about why this case was important and why it was 
important that they sign on to the amicus brief. These are his 
arguments, his statements in an email. He said: ``This is an important 
case because there is a fairly obvious collision course between 
religious freedom and gay rights, and this case (because it is an 
extreme case) could be very important in establishing that gay rights 
cannot always trump religious liberty.'' These are his own words in an 
email from Montana when he was solicitor general.
  Throughout his career, he has weakened environmental protections and 
standards, as well. Mr. VanDyke has argued in favor of fossil fuel 
drilling and supported reviving the Keystone Pipeline, ignoring the 
voices of conservationists and Native communities.
  His actions do not protect our air and water, nor do they recognize 
the impacts of climate change or safeguard endangered species, 
including the iconic sage-grouse. In fact, as solicitor general of 
Nevada, Mr. VanDyke challenged the Republican Governor he served. He 
actively worked against Governor Brian Sandoval's bipartisan agreement 
to protect my State's native species. Mr. VanDyke's opposition to land 
use restrictions to protect sage-grouse was so extreme that Governor 
Sandoval said publicly that Mr. VanDyke's position ``did not represent 
the State of Nevada, the governor, or any state agencies.''
  With that background, clearly he should not sit on a court with 
jurisdiction over the West--home to nearly 75 percent of public lands 
in the Nation.
  In the areas of reproductive rights, LGBTQ protections, and the 
environment, Mr. VanDyke's nomination is so troubling because it is 
clear that he puts his ideology above the law. This vacancy should be 
filled with a judge who will apply the law to the facts in an unbiased 
way--something Mr. VanDyke has proved unwilling to do.
  Finally, Mr. VanDyke's professional qualifications are simply 
insufficient. He has very little trial and litigation experience. When 
he served as Montana solicitor general, his colleagues raised serious 
concerns about his work ethic and legal skills. When he ran for the 
Montana Supreme Court, six retired judges of that court described him 
as ``unqualified.''
  As you heard at the confirmation hearings yesterday, the American Bar 
Association, which provides ratings for judicial nominees, gave him a 
rating of ``not qualified.'' That is worth repeating. The ABA--the 
American Bar Association--spoke with 60 lawyers and judges across 4 
States and concluded that he wasn't suitable for a position as a judge 
on the court of appeals. The people with the objections are his former 
colleagues.
  As far as records show, not a single Federal judicial nominee has 
been appointed to the Federal bench who was lacking both a 
``qualified'' or ``well qualified'' ABA rating and the approval of the 
nominee's home state Senators. If confirmed, Mr. VanDyke would be the 
very first Federal judge who was judged not qualified and whose blue 
slips were not returned by their home State Senators. I don't think 
that is a precedent this Chamber should be proud of.
  The Ninth Circuit Court of Appeals is the last stop for cases that 
affect Nevada before they reach the Supreme Court. It is vital that 
Ninth Circuit nominees know the State of Nevada and its issues.
  This nominee lived in the Silver State for a total of 4 years before 
moving to Washington to work at the Department of Justice, where he is 
currently. In Nevada, we welcome newcomers, but usually they stay in 
our communities. Mr. VanDyke didn't. Rather than continue to serve 
Nevadans, he left for a plum job in Washington and is now lobbying for 
a lifetime appointment on the Federal bench. This isn't someone who 
serves the needs of Nevadans. This isn't someone who knows Nevada or 
its issues. This is a career political operative who is looking for a 
guaranteed paycheck.
  For all of these reasons, I do not believe Lawrence VanDyke deserves 
a lifetime appointment to one of the highest courts in the land, which 
handles 70,000 critical cases each year. He is not the right person in 
whose hands to leave Americans' reproductive freedom, their fundamental 
civil rights, and their claim to a free and healthy environment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Ms. ROSEN. Mr. President, I rise today to join my friend and 
colleague Senator Cortez Masto in opposing the nomination of Lawrence 
VanDyke to the Ninth Circuit Court of Appeals in Nevada.
  Our Federal courts make decisions every day that affect consumers, 
immigrants, small businesses, not to mention our right to equal 
treatment, education, and healthcare. As such, our Federal judges must 
be serious, fairminded, and nonpartisan. We want women and men on the 
Federal bench who will look at the facts of a case, apply the law, and 
work hard to reach a just result regardless of who the parties are in 
front of them. The Federal bench must reflect our country in all its 
diversity of experience and background.
  Even though the Constitution gives the President the power to 
nominate Federal judges, it also requires the advice and consent of the 
Senate, and historically the President consults with home state 
Senators when there is a vacancy. As the representatives to our States, 
we are better equipped to identify qualified lawyers and judges to 
serve on the Federal bench who have done good work and who have good 
reputations in our home communities.
  We have numerous qualified, nonpartisan individuals working in the 
Nevada legal community who would make excellent additions to the Ninth 
Circuit. There are a number of amazing Nevada lawyers whom Senator 
Cortez Masto and I would have gladly considered supporting for a seat 
on this prestigious court. We have litigators, magistrate judges, law 
professors, prosecutors, public defenders, and existing district court 
judges with stellar reputations from the State, lawyers and judges from 
Nevada. They know our State, and they have respected nonpartisan 
records. But the White House didn't nominate any of these individuals 
for the Ninth Circuit. Instead, the President nominated Lawrence 
VanDyke, a Washington, DC, lawyer. He wasn't born in Nevada. He didn't 
grow up in Nevada. He didn't go to school in Nevada. He doesn't live in 
Nevada now.
  Mr. VanDyke, a Montana native who ran for office there and also 
worked in Texas, came to Nevada for a job a few years ago, in 2015. 
When the person he worked for lost a political race in 2018, Mr. 
VanDyke quickly sold the house he briefly owned in Nevada and moved to 
Virginia to work in Washington, DC, and as of last week, by his own 
admission, he hasn't even been back to Nevada since then.
  He is a DC lawyer and a failed political candidate from Montana who 
shares this White House's extreme political views. They are imposing 
him on Nevada despite the fact that we have so many qualified people in 
our own State who enjoy broad support across the political spectrum.
  Nevada has a vibrant community, and we take pride in knowing each 
other, respecting each other, and most importantly, putting partisan 
politics aside when it comes to working together for the betterment of 
our State. So if someone is a good judge or lawyer, if they are honest 
and they have a good reputation professionally, if they

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are civil in court and have a respectful demeanor, you will usually 
hear the same things about that person from everyone.
  These are the types of people who should be Federal judges: people 
who treat everyone fairly and with respect, who are smart, who are 
fair, and who follow the facts to get a just result.
  After reviewing Mr. VanDyke's record and meeting with him privately 
and watching his testimony before the Judiciary Committee yesterday, I 
have arrived at the determination that Mr. VanDyke does not fit that 
mold.
  Mr. VanDyke spent a lot of time in our meeting talking about how the 
role of a Federal judge is simply to apply the law and not to try to 
change it. His record clearly shows otherwise.
  How do we know this? Because before coming to Nevada, Mr. VanDyke 
worked for the Montana attorney general. Many of his emails from that 
time are public. They show he used that government office, where his 
job was to defend the laws of Montana--instead, what he chose to do is 
advance his own personal ideological agenda, even when it was against 
his State's interests. At least in one instance, he signed the State of 
Montana onto a brief without even bothering to read it.
  Among the briefs Mr. VanDyke signed in his home State of Montana 
during his tenure as solicitor general was one asking the Supreme Court 
to strike down Roe v. Wade and all of the reproductive cases that 
followed Roe. When it comes to a woman's right to make her decisions 
about her own body, Mr. VanDyke's views and actions are far outside the 
mainstream, and they are far out of step with the views of the people 
of Nevada.
  I am also concerned about the comments Mr. VanDyke has made about 
LGBTQ Americans. In 2004, Mr. VanDyke wrote that there is ``ample 
reason for concern that same-sex marriage will hurt families, and 
consequentially children and society.''
  The LGBTQ community is at a critical point in its fight for equality. 
This term, the Supreme Court is considering whether employers in the 
United States can fire an individual merely for being gay or 
transgender. When the next case on LGBTQ rights comes up for judicial 
consideration, it could come before Lawrence VanDyke.
  If that isn't enough, here is one more thing to consider. The 
American Bar Association has, by a substantial majority, rated Mr. 
VanDyke as unqualified. For a lifetime appointment, we should always 
strive for a candidate who is very qualified. No, they gave us Lawrence 
VanDyke, who was rated ``not qualified.''
  Why did the ABA make this determination? Well, I will let the ABA's 
words speak for themselves. Based on interviews with 60 individuals who 
have worked with Mr. VanDyke over the years, including more than 40 
lawyers and over a dozen judges, this is what the ABA said.

       Mr. VanDyke's past work is offset by the assessments of 
     interviewees that Mr. VanDyke is . . . 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.

  Surely you agree, no matter who is in the White House or who controls 
the Senate, you would want the Federal judges in your States to come 
from and reflect your communities. You would want to trust these judges 
to be fair to your constituents and not use cases to advance their own 
ideological agenda, and you would want your judges to be, at a minimum, 
qualified to serve on the bench.
  I oppose the nomination of Mr. VanDyke, and if it is withdrawn or 
voted down, I will be ready that day to work with this White House on 
finding nominees from Nevada who are qualified and fair and 
nonpartisan. The people of my home State of Nevada, particularly today, 
on Nevada Day, deserve nothing less.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.

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