[Congressional Record Volume 165, Number 197 (Tuesday, December 10, 2019)]
[Senate]
[Pages S6914-S6915]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Lawrence VanDyke

  Mr. TESTER. Mr. President, it is no secret that the Senate doesn't do 
much around here, except for confirming judges. But looking at the 
records of the folks we are confirming to the Federal bench, it is 
clear we have forgotten even how to do that.
  The Founding Fathers were incredibly visionary. When they set up the 
Federal judiciary, they hoped to insulate it from political influence. 
How? By giving them lifetime appointments, with the advice and consent 
of the Senate. In doing so, they gave the Senators the most solemn of 
responsibilities we have in this body: evaluating

[[Page S6915]]

judicial nominees on their independence, their fairness, their 
temperament, and their judgment.
  Unfortunately, these days, the Republican majority seems to have 
thrown qualifications out the window. Instead, they give out lifetime 
appointments to the court like candy. This doesn't prevent partisanship 
from influencing our judicial system; it ensures partisanship. The 
latest example is Lawrence VanDyke's nomination to the Ninth Circuit 
Court of Appeals, which has jurisdiction over Montana.
  Mr. VanDyke is a familiar face to Montanans because he grew up and 
attended school in the great State of Montana. He also served as 
Montana's solicitor general before resigning to run an unsuccessful 
race for the State supreme court.
  Montanans can separate the wheat from the chaff pretty well, and 
after examining his record and judgment, they found Mr. VanDyke 
unqualified to serve on the State's highest court. Montanans rejected 
him overwhelmingly at the ballot box, but now the majority leader wants 
to give him a lifetime seat on the bench.
  Once you start to dig into Mr. VanDyke's extreme record, it is not 
hard to see why folks in my State were concerned about his ability to 
be fair and independent. This is a man who believes a government should 
insert itself between a woman and her doctor when she is trying to make 
private healthcare decisions. This is a man who, as Montana's solicitor 
general, worked to oppose same-sex marriage and questioned the ability 
of same-sex partners to properly raise children. This is a man who 
supports opening our public lands to mining and drilling.
  By the way, our public lands contribute more than $7 billion to our 
economy. Nonetheless, open it up, drill it, and mine it. And this is a 
man who ridiculed Montana's deep belief that corporations are not 
people. He argued in favor of unchecked money flowing into our 
elections. He believed that corporations were people and, in fact, his 
race for supreme court in Montana received over $600,000 in outside 
spending--$170,000 from the Koch brothers alone.
  My guess is that some of my friends on the other side of the aisle 
view Mr. VanDyke's extreme positions as an asset, not an issue. They 
may point to the fact that he claimed he would be objective during his 
confirmation hearing.
  The fact is, we cannot trust Mr. VanDyke to put aside his past 
positions and give everyone who comes before his court a fair shake, to 
be fair and impartial.
  Mr. VanDyke has never been a judge, and he was rated as ``not 
qualified'' by the nonpartisan, nonpolitical American Bar Association.
  By the way, this isn't the first nominee who has come up who has been 
rated as ``not qualified.'' I asked a lawyer friend of mine what that 
means, and he said, basically, if you can't achieve a ``qualified'' 
rating by the American Bar Association, you are a train wreck. That is 
what Mr. VanDyke is.
  His nomination is opposed by over 200 conservation, education, civil 
rights, and other organizations. He is also opposed by six former 
Montana Supreme Court justices, folks that Montanans did elect to sit 
on the highest court in our State. They wrote of Mr. VanDyke:

       It is doubtful that he understands that judicial decisions 
     must be based solely on the facts of the case and on the law. 
     . . . We strongly believe that Mr. VanDyke has demonstrated 
     that he has neither the qualifications nor the temperament to 
     serve as a federal court of appeals judge.

  His coworkers from his time as Montana's solicitor general seem to 
agree. A former assistant attorney general who worked with VanDyke 
wrote privately to his colleagues:

       Ever since he has arrived, Mr. VanDyke has been arrogant 
     and disrespectful to others, both in and outside of this 
     office. He avoids work. He does not have the skills to 
     perform, nor desire to learn how to perform, the work of a 
     lawyer. Now that he has resigned--

  That was when he resigned to run for the supreme court--

       and refuses to work on cases assigned to him, while 
     remaining on the payroll for the next several months.

  In fact, even Mr. VanDyke doesn't consider himself qualified to 
perform the basic duties of a lawyer. He once explained in an email 
that he has no experience in discovery, experts, stipulations, or in 
meeting and conferring with opposing counsel.
  I am no lawyer, but those sound like the tasks that someone up for a 
lifetime judicial appointment should know how to do.
  Let me put it this way. If I were looking for a contractor to do work 
on my farm and the contractor had these kinds of qualifications, I 
would not hire him for 1 minute, much less give him a job for a 
lifetime.
  I spend more time in Washington, DC, than I would like, which is how 
I know there is no shortage of lawyers around here and around the 
country. There is absolutely no reason that we can't find someone 
better suited to this position than Lawrence VanDyke.
  I know it is too much to hope that the Senate will act with as much 
common sense as the folks in Montana do, but I do expect us to have the 
decency to respect the will of Montana voters and reject Mr. VanDyke 
for a seat on the Ninth Circuit Court of Appeals.
  I urge my colleagues to take a look at the record, to take a look at 
what he has done, to know it will not be a fair and impartial court if 
he is put on it, and I urge my colleagues to oppose his nomination.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.