[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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