[Congressional Record Volume 165, Number 197 (Tuesday, December 10, 2019)]
[Senate]
[Pages S6935-S6937]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Lawrence VanDyke

  Mr. BLUMENTHAL. Mr. President, in the midst of all of the historic 
and profoundly significant events happening these days in Congress, 
there may be a temptation to overlook some of the judicial nominations 
that are coming to the floor of the Senate, some of them almost a 
caricature of the unqualified nominees that we have seen all too often. 
One is before us today, Lawrence VanDyke, who has been nominated to the 
Ninth Circuit.
  Over the past 3 years, we have watched the Trump administration march 
ceaselessly to degrade the judiciary. Yet, even in having witnessed 
this travesty firsthand, I find Mr. VanDyke's nomination truly 
astonishing and alarming. Once again, we are faced with a nominee who 
lacks the support of his home State Senators, who is not even from the 
State for which this seat is designated, and who was rated ``not 
qualified'' by the American Bar Association. That is a pretty tough set 
of qualifications--or lack of them--to match, but Lawrence VanDyke has 
done it.
  These departures from bedrock principles that once guided the 
exercise of the Senate's constitutional duty to advise and consent 
should disturb all of us, but even more disturbing is Mr. VanDyke's 
record as an unrelenting ideologue who has spent his entire legal 
career promoting an extreme political agenda. Unfortunately, that is 
exactly what we can expect of him if he is confirmed to the Ninth 
Circuit Court of Appeals. That ideological, rightwing, extremist image 
and record are exactly why he has been nominated by the President, who 
has outsourced many of these decisions about nominations to the far-
right groups that he feels, evidently, he has to follow.
  Mr. VanDyke has already made it abundantly clear how he will rule on 
gun violence prevention issues. In an NRA questionnaire that he 
completed when he ran for the Montana Supreme Court in 2014, Mr. 
VanDyke stated that he would not support any legislation that would 
regulate firearms and ammunition; any restrictions on the possession, 
ownership, purchase, sale, or transfer of semiautomatic firearms; or 
legislation mandating the use of locking devices and safe storage 
procedures.
  There are currently bills before Congress that would do each of these 
things. I should know, for I sponsored them. None of these proposals--
none--would get a fair hearing in Mr. VanDyke's court. That 
predilection never disavowed, never refuted, never denied should be 
disqualifying.
  Worse still, in the same questionnaire, Mr. VanDyke stated that the 
only reason he was not currently a member of the NRA was that he didn't 
``want to risk recusal if a lawsuit came before me where the NRA was 
involved.'' In other words, he would join the NRA; he supports the NRA; 
he feels like he should be a member of the NRA; and he wants to rule in 
favor of the NRA, but he might have to recuse himself if he were to 
join the NRA. That statement alone should be disqualifying.
  Remember, we are talking about a life-tenured position on the Federal 
judiciary, not just for a few years. This is not an elected position on 
a State court. This is a Federal nomination to the second highest, 
appellate-level court in the United States, second only to the U.S. 
Supreme Court.
  Mr. VanDyke's hostility to commonsense gun violence prevention also 
led him to challenge a law passed by the voters of a State he was 
charged with serving. In 2016--now we are talking about Nevada, not 
Montana--the voters of Nevada approved a ballot measure to expand 
background checks to cover the private sale of firearms. This closed a 
critical loophole in that State's laws. I have repeatedly emphasized 
that we must address this loophole at the Federal level. Nevada 
addressed it at the State level, but Mr. VanDyke, who was at the time 
that State's solicitor general, took the very unusual step of working 
to undermine the voter-approved law.
  Meanwhile, when he worked for the Montana attorney general, he was 
all too happy to defend an extreme and poorly drafted State law that 
sought to exempt from all Federal regulation the firearms and 
ammunition that were made in Montana. Don't take my word for it, as 
Yogi Berra said. You can look it up. Mr. VanDyke himself stated in an 
email to the Federalist Society that this statute was ``ill-advised'' 
and that he could not come up with ``any plausible (much less good 
arguments)'' to

[[Page S6936]]

defend that State's law. That didn't stop Mr. VanDyke from defending 
the law nor did it stop the Federalist Society from providing him with 
the help he had requested in contriving arguments and concocting ill-
founded claims to support the law.
  When Mr. VanDyke wants a particular outcome but can't figure it out 
himself or he can't find the legal path to it, he turns to the 
Federalist Society for answers. There is no great mystery here about 
how he will act when he is faced with similar situations if he is 
confirmed as a judge for the Federal Court of Appeals for the Ninth 
Circuit.
  Unfortunately, Mr. VanDyke's promotion of the NRA's extreme positions 
is far from the only plank of his far-right agenda. He has made many 
statements that are hostile to LGBTQ rights, including questioning the 
ability of gay parents to raise children and suggesting that protecting 
LGBTQ rights is an affront to religious liberty. He has fought 
tirelessly to uphold State bans on gay marriage, and he has fought to 
allow discrimination against LGBTQ people in public accommodations. His 
open hostility to LGBTQ people was one of the main reasons the ABA 
rated him ``not qualified.'' Not only is it clear how he would rule on 
issues relating to those rights, but the ABA was not even confident 
that he could treat LGBTQ litigants fairly regardless of the issue 
before him. That is disqualifying.
  Mr. VanDyke is also an ideologue on reproductive rights issues. His 
adherence to his extremist positions against women's healthcare and 
reproductive rights has blinded him to the need about these rights. In 
2013, he signed an amicus brief that stated: ``A growing body of 
scientific literature shows that a fetus can suffer physical pain at 
20-weeks' gestation.'' That view was rejected emphatically by the 
American College of Obstetricians and Gynecologists, which felt 
compelled to put out a statement that laid this dangerous ``fetal 
pain'' myth to rest.
  Whether he cannot tell the difference between fact and fiction or 
simply feels comfortable misleading the court, this kind of behavior is 
disturbing for a Federal judicial nominee. Ordinarily, this kind of 
indifference to the truth would be disqualifying for a Federal nominee. 
Ordinarily, blind adherence to ideology would be disqualifying for any 
nominee to an important position of trust and respect. Ordinarily, the 
fact that a nominee is unqualified would be disqualifying itself. Yet, 
for Mr. Trump, these are not disqualifying flaws. They are, in fact, 
the reasons for his nomination.
  So let's send the White House a message that we will insist on 
qualified nominees. They may have views that are different from ours, 
but they should be qualified to hold these lifetime positions of trust 
on our Nation's highest courts. I hope that we will reject Mr. 
VanDyke's nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. MURPHY. Mr. President, I join my colleague from Connecticut, 
Senator Blumenthal, and others in urging my colleagues to oppose the 
nomination of Lawrence VanDyke.
  I may risk repeating some of the ground that has been covered by 
Senator Blumenthal, but I think it is important enough that we 
reiterate over and over the dangerous nature of this particular 
nomination.
  I have come down to speak on the floor in opposition to maybe only a 
handful of the President's judicial nominees. In fact, if you look up 
the voting record, I probably am amongst a very small handful of 
Democrats who have routinely voted for the President's nominees--not 
just judicial nominees but also his appointments to positions in his 
administration.
  Often in committee, I am the only Democrat supporting some of the 
President's nominees and appointments, and that is because I have come 
to the conclusion that this body should give deference to the 
administration and to the President when it comes particularly to 
filling the positions of those who work for him in political 
appointments but to a degree as well in the judiciary.
  So I put my votes where my test is, and probably with only two or 
three exceptions in the Democratic caucus, I have voted for more of the 
President's nominees than the rest of my colleagues on this side of the 
aisle. My test is pretty simple. One, I want individuals who are 
qualified. Obviously qualifications are sometimes in the eye of the 
beholder, but I want folks who know something about the job they are 
about to undertake or have some set of skills that will be relevant. 
Second, I want to make sure the candidates we are reviewing for 
judgeships or administration posts are not out of the mainstream--I 
mean the conservative mainstream. I don't want folks who have radical 
points of view.
  Mr. VanDyke doesn't pass that test as far as I am concerned, and that 
is why I chose to come down to the floor and express my opposition to 
his nomination. In particular, I do not believe Mr. VanDyke is within 
the mainstream when it comes to his positions on the issue of gun 
violence.
  Obviously this is a personal issue not just to me but to everybody in 
this Chamber, and we have a lot of disagreement--maybe a narrowing set 
of disagreements on the policy surrounding what we should do to better 
protect this country against the growing scourge of gun violence. But 
Mr. VanDyke has held a position that would take away from this body the 
ability to keep our friends and our neighbors and our constituents 
safe. Mr. VanDyke's record as a candidate for the supreme court and as 
solicitor general was to endorse views outside of the mainstream that 
would take away from us the ability to pass laws to keep people safe. 
Let me tell you what I am talking about.
  First and foremost, he was a vocal proponent of something called the 
Firearms Freedom Act. As solicitor general of Montana, he argued that 
the Federal Government should not have the power to regulate gun 
ownership in his State of Montana.
  This is a political cause that is picking up steam in some 
conservative circles around the country, but it is still a radical 
notion, the idea that the Congress can pass a law restricting who can 
own a gun or what kinds of guns can be owned and that a State can just 
claim those laws are not valid in that State. That is what Montana was 
attempting to do, and that is what Mr. VanDyke was pushing--the idea 
that that State was just going to conveniently avoid enforcing Federal 
firearms acts and laws.
  That position is unconstitutional, and Federal courts have held that 
it is unconstitutional, but that didn't stop Mr. VanDyke from pushing 
what is essentially a political cause--the idea that one of the ways to 
stymie Federal action on guns is to just convince States to pass laws 
saying they won't enforce Federal laws. That is a very slippery slope 
to go down--certainly on the issue of enforcement of firearms laws, but 
it is a slippery slope to go down with respect to any Federal laws that 
States may want to ignore or invalidate.
  Second, Mr. VanDyke has taken a position opposing the 
constitutionality of restrictions on the sales of certain types of 
weapons.
  We have big disagreements here as to which kinds of weapons should be 
sold commercially and which kinds of weapons should be reserved for law 
enforcement and the military. I believe that semiautomatic, assault-
style weapons like the AR-15 are best left in the hands of those they 
were designed for--soldiers and law enforcement. Many of my Republican 
colleagues don't agree. But that should be a debate we have here, and I 
simply do not believe our Founding Fathers would accept the premise 
that the Constitution restricts our ability to decide what kinds of 
weapons should be in civilian hands and what kinds of weapons should be 
in the hands of the military. There was all sorts of gun regulation 
happening at the time of the passage of the U.S. Constitution. They 
were not unfamiliar with the idea that government was going to have a 
hand to play in regulating firearms, and I reject the idea that the 
Constitution bars us from having those debates.
  Mr. VanDyke has spent a lot of time arguing that the Constitution 
prohibits Congress from acting to keep dangerous weapons out of the 
hands of civilians. It is one thing to have a policy objection; it is 
another thing to put somebody into the Federal court system who doesn't 
think we should have ownership as a political body of a question that 
is inherently political, not constitutional.

[[Page S6937]]

  I come to the floor to point out just a handful of ways in which Mr. 
VanDyke's record, I believe, is outside of the conservative mainstream 
when it comes to guns. I think he holds positions that would make even 
NRA-endorsed Republicans in this body a little uncomfortable, 
especially this idea that States can nullify Federal firearms laws.
  Although I think there are many reasons to draw issue with this 
particular nominee, I put this set of issues at the top of the list. 
Again, this is coming from someone who has spent a lot of time 
supporting the President's nominees with whom I have big policy 
disagreements. I think this is beyond a question of policy 
disagreements. This is someone who is going to bring some pretty 
radical ideas on what the Constitution allows States to do and what the 
Constitution allows this body to do when it comes to keeping our 
constituents safe.
  I would urge us to oppose Lawrence VanDyke's nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  (The remarks of Mr. Lankford pertaining to the introduction of S. 
3009 are printed in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  Mr. LANKFORD. I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, let me begin by commending our friend from 
Oklahoma for his patience. It takes a lot of patience to get things 
done around here. It also takes a lot of perseverance. Sometimes I 
think that if you can't convince people, maybe you can just wear down 
their resistance over time. But this is an idea whose time has come, 
and I congratulate our friend from Oklahoma and Senator Hassan and 
would love to join them in supporting their effort. Thank you.