Newspaper column: Appellate court nominee falsely accused

The confirmation process for federal judicial nominees has turned into a scorched earth battle fueled by character assassination and innuendo coming from faceless, nameless partisan critics who can never be held accountable.

This was evident once again this past week as former Nevada Solicitor General Lawrence VanDyke, who has been nominated for a seat on the 9th U.S. Circuit Court of Appeals by President Trump, was excoriated and maligned by Democrats on the Senate Judiciary Committee hell bent to derail his confirmation.

The committee members were aided and abetted by the left-wing lawyers at the American Bar Association, which rated VanDyke “not qualified” based on 60 anonymous interviews with lawyers and judges. The scathing ABA letter accused VanDyke of being arrogant, lazy and an ideologue, questioning whether he would be fair to members of the “the LGBTQ community.”

The letter said, “Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”

VanDyke uncategorically denied this, telling senators, “No, I did not say that. I do not believe that,” adding that he would “absolutely” commit to treating everyone with dignity and respect.

The letter did not deign to mention the ABA chief evaluator was a Montana trial lawyer who had contributed to VanDyke’s opponent when he ran for a seat on the Montana Supreme Court in 2014. Bias?

As solicitor general VanDyke worked in the office of then-Attorney General Adam Laxalt, who in a recent interview bristled at the baseless allegations thrown at VanDyke.

Laxalt countered, “He is the most humble, hardworking, intelligent lawyer we could possibly have nominated for this seat. He is tremendous in every way, both personally and professionally. He is a great human being and his legal acumen was unprecedented in our 400-person office.”

Of the accusation that VanDyke refused to say he would be fair to everyone appearing before him, Laxalt seethed, “It makes no sense that, as she says in that letter, that she asked whether he would basically discriminate against this group and he refused to answer. That doesn’t make any sense. That’s impossible. Of course, we don’t know the notes. We don’t know the question. We don’t know the context, but there is no way he would not affirm that he would treat all persons fairly under the law.”

Ironically, the former attorney general noted, it is the other side that lets their personal opinions and philosophy dictate their written opinions rather than legal precedent and the law, noting that 90 percent of lawyers coming out of law school today are liberals.

As for VanDyke’s qualifications, Laxalt said he has practiced before the 9th Circuit and the Nevada Supreme Court more than any nominee he is aware of. Of the cases handled by VanDyke, Laxalt said his agency almost never lost.

VanDyke has successfully challenged the Obama administration’s overtime and “waters of the U.S.” rules, as well as DACA, overly restrictive land use plans to protect sage grouse and cases involving religious rights.

“I’m telling you 1,000 percent that he is a humble, brilliant, hardworking man. I think those three in a string because obviously they said the exact opposite, that he was lazy, lacks humility, et cetera, but he is the polar opposite,” Laxalt said. “If you sat down with this guy you’d walk away … I always call him the gentle giant. He is 6-7 and he is the most non-imposing, kind, seriously sweet 6-foot-7 man you’ll ever meet.”

Laxalt predicts, “Lawrence VanDyke will be confirmed to the 9th Circuit. I am not concerned, and the Republican senators that I have spoken to on Judiciary were appalled by this. They were incredibly upset and there’s no movement on his nomination. People are going to support him and he will be confirmed. We can expect everything on the planet to be attempted in a (Brett) Kavanaugh-like smear. I mean a non-me-too-like Kavanaugh smear. They’re going to do everything they can to kill this guy.”

It is all about power, Laxalt said, noting that Trump’s two recent 9th Circuit picks would change the court from being very liberal to being more conservative.

According to Ballotpedia, an ABA “not qualified” rating is not necessarily an impediment. Of 21 nominees thus rated since 1989, 13 were confirmed, six withdrew and two are pending, including VanDyke.

Both of Nevada’s Democratic senators, Catherine Cortez Masto and Jacky Rosen, appeared on the Senate floor to oppose VanDyke’s nomination, saying he is unqualified, but really meaning that he doesn’t fit their ideological mold.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Lawrence VanDyke before Senate Judiciary Committee.

Newspaper column: Asylum seekers should prove their claims

Nevada’s Democratic Attorney General Aaron Ford joined with other attorneys general this past week in filing a friend of the court brief in a case challenging another Trump administration rule attempting to curb the flood of asylum seekers.

The rule would deny asylum to those who passed through a safe country en route to the U.S., but did not apply for asylum in that country and get turned down. The lawsuit challenging the rule was brought by the American Civil Liberties Union — styled East Bay Sanctuary Covenant v. Barr — is currently pending before the 9th U.S. Circuit Court of Appeals in California.

In a press release announcing the filing of the brief, Ford was quoted as saying, “Facing violence or persecution, asylum seekers look to us for help and safety. As Attorney General, my ultimate goal is to welcome and protect Nevadans, and I will fight every attempt by the Trump Administration to turn its back on those in need of dire assistance.”

The press release said the rule subjects asylum seekers to trauma and perils in dangerous countries, such as Mexico and Guatemala. Sounds like the sort of stereotyping rhetoric the left is always accusing Trump of spouting.

The attorneys general of California and Massachusetts, who are taking the lead in the brief filing, issued an almost identically worded press release.

California Attorney General Xavier Becerra is quoted as saying, “Again and again, the Trump Administration proffers sloppy reasoning at best for decisions that have lasting consequences on the lives of real people. Countless people are being put at risk by a rule that runs afoul of one of our core principles — welcoming homeless refugees to our shores. This rule is unreasonable and disturbingly callous. We’re going to do everything we can to stand up for the rights of those seeking refuge from persecution and violence.”

Both press releases claim the rule is particularly injurious to unaccompanied children, LGBTQ applicants, and women, for whom applying for asylum in a third country is said to be perilous. “For example, two-thirds of LGBTQ Central American asylum-seekers reportedly suffered sexual violence while transiting through Mexico and, in Guatemala, children are frequently targets of recruitment by criminal gangs,” both releases say. “In addition, the rule will cause state agencies and non-profits to divert resources to address the added trauma asylum-seekers will suffer because of precarious conditions in third countries and will force states to lose out on the economic contributions of those who might otherwise have been welcomed to the country.”

Yes, the brief claims the rule will deprive states of the economic benefits of immigrants denied asylum.

Oddly, just a few weeks ago Ford joined in another court filing that challenged a Trump administration rule that would have denied legal immigration status and work cards to non-naturalized immigrants who have come to rely on government welfare — known as the public charge rule.

At the time, Ford wailed, “I pledged to protect Nevada’s families, and I will continue to protect our families from the Trump Administration’s numerous attacks. This proposed change is not only mean-spirited, it essentially makes legal immigrants choose between maintaining their legal status and receiving assistance to meet basic needs, like food, health care and housing. It’s unconscionable.”

Asylum seekers are required to prove persecution on one of five grounds — race, religion, nationality, membership in a social group or political opinion. That covers a lot of ground.

In June, then-acting Homeland Security Secretary Kevin McAleenan told a congressional hearing that a recently conducted study of 7,000 family units revealed that 90 percent failed to appear for immigration hearings and simply vanished into the countryside rather than face the judicial process. In 2018, fully 65 percent of asylum cases that were heard were denied.

Despite this, Nevada’s senior U.S. Sen. Catherine Cortez Masto, a Democrat, signed onto a letter with other senators opposing a Trump administration immigration rule requiring asylum seekers at the southern border to remain in Mexico pending hearings.

As further witness to the lack of validity of asylum requests, this past week Immigration and Customs Enforcement and Customs and Border Protection in the El Paso area identified 238 fraudulent families, as well as 50 adults falsely claiming to be minors. More than 350 people are being prosecuted.

Legal immigration should be afforded only to those who can prove their cases and then can support themselves and their families once allowed in. Open borders will not work for current Nevada taxpayers and job seekers.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Fraudulent families detected at the border. (ICE pix)

Newspaper column: Trump appeals court nominee looks right for the job

This past Friday President Trump nominated former Nevada Solicitor General Lawrence VanDyke to a seat on the 9th U.S. Circuit Court of Appeals, which handles cases for nine Western states and territories in the Pacific.

As solicitor general, VanDyke served in the office of then-Nevada Attorney General Adam Laxalt. He also served as solicitor general in Montana and Texas. 

VanDyke earned bachelor’s and master’s degrees from Montana State University-Bozeman and graduated magna cum laude in 2005 from Harvard Law School, where he was editor of both the Harvard Law Review and Harvard Journal of Law and Public Policy. He is a member of the conservative Federalist Society and currently is a deputy assistant attorney general for the Environment and Natural Resources Division at the Department of Justice.

Nevada’s Democratic U.S. Sens. Catherine Cortez Masto and Jacky Rosen immediately issued a statement sharply critical of the nomination.

Lawrence VanDyke

“We’re frustrated the White House is choosing to ignore the bipartisan work undertaken by our offices in concert with Nevada’s legal community to identify and recommend qualified Nevadans for the Ninth Circuit,” said their statement. “The Administration’s decision to put forward this nominee ignores the broad, consensus-based opinion of Nevadans. Instead, the White House has chosen to move forward on their extreme judicial agenda. While we will review the full record of this nominee, we are disappointed that the White House has chosen to nominate a candidate with a concerning record of ideological legal work.”

Only two days before the two senators had announced the formation of what they called “bipartisan judicial commissions to make recommendations for Nevada’s judicial vacancies,” and said, “We are establishing the commissions to encourage this and future administrations to nominate candidates that reflect the diversity and values of the Silver State.”

Republican President Trump paid no heed whatsoever.

Critics of VanDyke quickly jumped on his record in Montana of advancing friend of the court briefs defending bans on same-sex marriage and abortion, as well as challenges to gun rights. 

The voters of both Montana and Nevada had amended their state constitutions to prohibit same-sex marriage, and in 2014 Montana filed a legal brief defending those amendments before the 9th Circuit. Cortez Masto, then Nevada attorney general, refused to defend the state’s amendment. The 9th Circuit eventually ruled both state’s amendments were unconstitutional.

VanDyke was quoted by a Montana newspaper, while running unsuccessfully for a seat on that state’s Supreme Court, “My job was to represent the interests of the people of Montana and defend our state’s laws. So simply because I worked on a specific case or made a specific recommendation obviously can’t be taken as representative of my personal views. In fact, as Montana’s solicitor general, I worked on cases and took positions that were sometimes at odds with my personal or political views.”

While working under Laxalt, VanDyke was said to be a key figure in securing an injunction staying the Environmental Protection Agencies’s 2015 “Waters of the United States” rule, which unduly expanded federal power over every stream, ditch, seasonal puddle and muddy hoof print as being covered by the restrictions of the Clean Water Act of 1972. 

The conservative National Review also notes that VanDyke’s challenge of the Bureau of Land Management’s over-broad greater sage grouse land plan caused the agency to back off. The plan would have withdrawn more than 10 million acres of federal public land from use for such things as grazing and mineral exploration. He also challenged the Obama-era EPA’s Clean Power Plan that threatened to raise power bills.

“VanDyke also litigated in defense of the Second Amendment and religious freedom,” the National Review article continues. “He filed the multi-state amicus briefs at both the circuit and Supreme Court level in the Trinity Lutheran case. He was also part of the successful multi-state challenge to the Obama administration’s DAPA program, which attempted to legalize and grant numerous benefits to over 4 million illegal aliens without statutory authority. As the lead lawyer for a 22-state coalition, he successfully challenged the Obama administration’s Overtime Rule.”

Sounds like the kind of person who could help change the future rulings of the once uber-liberal 9th Circuit.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Nevada senators back amendment abridging free speech

Nevada Democratic Sens. Catherine Cortez Masto, left, and Jacky Rosen. (R-J file pix)

This past week every Democratic member of the U.S. Senate — including Nevada Democratic Sens. Catherine Cortez Masto and Jacky Rosen — signed on as sponsors of a proposed constitutional amendment that would rip the heart from the First Amendment of the U.S. Constitution — the part that says, “Congress shall make no law … abridging the freedom of speech …”

The Democracy for All Amendment, as it is wrongly called, would overturn the Supreme Court’s 2010 ruling in Citizens United v. FEC. That 5-4 ruling overturned a portion of the McCain-Feingold campaign finance law under which the Federal Election Commission barred the airing of a movie produced by Citizens United that was critical of Hillary Clinton during the 2008 Democratic primary.

The court said the First Amendment was written to protect speech, no matter who the speaker may be, whether an individual or a group, such as a corporation or a union.

The proposed amendment would allow Congress and the states to “distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.”

Sen. Cortez Masto put out a press release saying the amendment is intended to get big money out of politics. “Citizens United opened the floodgates for big money in politics by wrongly allowing corporations and special interests to buy undue influence in American elections,” Nevada’s senior senator wrote. “It’s time the effects of this disastrous ruling were reversed. A constitutional amendment putting the democratic process back in the hands of voters will help ensure that our government represents the will of Americans, not just the wealthy few.”

Sen. Rosen has long been a proponent of overturning Citizens United. During her campaign against Sen. Dean Heller, she declared, “Washington hasn’t been listening to the needs of Nevadans because billionaires and special interests are drowning out the voices of real people in our communities. If we’re going to make real progress on issues like climate change, gun violence and health care, then we need to bring some transparency and accountability to our broken campaign finance system. Unlike Senator Heller, I will stand up for Nevadans by speaking out for real reform and a reversal of this catastrophic Supreme Court decision.”

Ironically, the amendment concludes by stating, “Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.’’

Who do they think owns the “press” in the United States? Billionaires and corporations, such as Amazon’s Jeff Bezos, who owns The Washington Post, and casino owner Sheldon Adelson, who owns the largest newspaper in Nevada. A handful of giant corporations own the vast majority of news media outlets in this country. In order to get around this amendment, all a billionaire or corporation has to do is buy a “press.”

In fact, Justice Anthony Kennedy, who wrote the majority opinion in Citizens United, singled out the media exemption that was written into McCain-Feingold. Kennedy wrote, “The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. ‘We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.’ … And the exemption results in a further, separate reason for finding this law invalid: Again by its own terms, the law exempts some corporations but covers others, even though both have the need or the motive to communicate their views.”

Aren’t political parties themselves tantamount to corporations — groups of individuals uniting their voices and money in furtherance of a political agenda. Should political parties be silenced?

As Justice Kennedy concluded, “The First Amendment confirms the freedom to think for ourselves.”

Congress should not deem itself the arbiter of who gets to speak and who must be gagged. Cortez Masto and Rosen should reverse course.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

For our grandchildren: Taxation without representation

The Senate has now passed the so-called budget deal previously approved by the House and President Trump is expected to sign it.

According to The Wall Street Journal, the measure avoids a government shutdown in the fall by suspending the debt ceiling until after the 2020 election and provides more than $2.7 trillion in discretionary spending over the next two years, which means the deficit will grow by $1 trillion a year for the foreseeable future.

Who will pay for today’s spending tomorrow? Our grandchildren, who have no say in the matter. That’s what was called taxation without representation at the time of the Revolution.

Kentucky Republican Sen. Rand Paul said the deal marks the death of the Tea Party movement, according to Fox News.

“Both parties have deserted – have absolutely and utterly deserted – America and show no care and no understanding and no sympathy for the burden of debt they are leaving the taxpayers, the young, the next generation and the future of our country,” Paul said on the Senate floor. “The very underpinnings of our country are being eroded and threatened by this debt.”

Apparently, Republican Rep. Mark Amodei was the only Nevada delegate to vote against this atrocity.

In 2016 Trump promised to wipe out the national debt in eight years.

At least a drunken sailor will sober up eventually.

Newspaper column: House $15 minimum wage bill would kill jobs

The House this past week passed a bill that would increase the federal minimum wage to $15 an hour by 2025 and phase out the sub-minimum wage currently allowed for tip earners. The vote was 231-199, largely along party lines.

While all three of Nevada’s Democratic representatives put out statements bragging about voting for the Raise the Wage Act and citing how many people in their districts would be eligible for pay hikes under the law, Republican Mark Amodei, who represents Northern Nevada, warned of the many problems that the bill could create and said the only good thing about it is that it is unlikely to pass in the Senate.

“It makes a good campaign ad in certain neighborhoods, I guess,” Amodei said during a conference call on Friday. He said the bill, while it may raise hourly wages for some by 107 percent, others will lose their jobs entirely or have their hours cut. In fact, the Congressional Budget Office (CBO) estimated that somewhere between 1.3 million and 3.7 million would lose their jobs.

Amodei said the bill is especially problematic for Nevada because a third of the workforce is tipped workers. “In a state that has 45 million-plus people a year who come here for the resort industry … they tip people in the housekeeping industry, they tip people in restaurants, they tip people in casinos,” the congressman noted, adding that the current federal minimum wage for tipped workers is $2.13 an hour and the increase to $15 an hour would constitute a 600 percent increase.

“When you say everybody is going to make 15 bucks an hour you’re picking winners and losers,” Amodei said. “Because what do business people do in response to that? They take a look at, first of all they’re going to raise prices, which by the way is kind of that vicious circle — the good news is you’re making more money, the bad news is it costs you more on everything this impacts.”

A Cato Institute analysis in 2012 found that a 10 percent increase in the U.S. minimum wage raises food prices by up to 4 percent. Imagine what 107 percent would do.

Amodei also noted that the National Restaurant Association reports that almost two-thirds of restaurant owners, when faced with higher minimum wage requirements, reduce hours for workers, half eliminated jobs and all raised prices. “So the good news is you’re getting 15 bucks and hour, the bad news is you’re not going to work as many hours,” he said.

Newspaper column: Energy Department catches possible error, then catches hell

Umbrage has been duly taken.

On the afternoon of July 3 Energy Department Deputy Secretary Daniel Brouillette called Democratic Gov. Steve Sisolak to let him know the department may have been mistakenly shipping unstable nuclear material to the Nevada National Security Site (NNSS) monthly for a dozen years.

Mixed low-level radioactive waste — which must be protected from moisture when disposed — may have been mislabeled as merely low-level radioactive waste, which includes such things as rags, papers, filters, equipment, discarded protective clothing and construction debris and need not be protected from moisture. Further, the governor was told the waste might include “reactive” material, which could explode or release toxic fumes if exposed to water.

In a subsequent briefing this past week, Sisolak was told the department had not yet confirmed any of the waste was indeed reactive and the mislabeled shipments from the agency’s Y-12 facility in Oak Ridge, Tenn., had only been coming to Nevada since 2013 and involved only 32 containers.

Though Energy Secretary Rick Perry did not take office until his 2017 appointment by Republican President Donald Trump and his agency caught the apparent error, suspended further shipments and informed Nevada public officials of the possible error, Nevada Democratic office holders unleashed a fusillade of fury, including Democratic Rep. Steven Horsford calling for Perry to resign.

“I am outraged and shocked to hear about the Department of Energy’s repeated transgressions on the people of Nevada,” Horsford said in a statement. “Today we found out that, against the will and consent of Nevadans, the Department of Energy has been covertly shipping dangerous radioactive waste into our state.”

He concluded, “Secretary Perry must resign immediately.”

Democratic Rep. Dina Titus blustered, “The level of incompetence at the Department of Energy is only matched by its dishonesty. For decades, the DOE has been an untrustworthy partner and this latest round of illegal shipments is truly a new low. I’m grateful that Governor Sisolak continues to stand up for Nevada and refuses to let this violation of the law go unchallenged.”

Democratic Rep. Susie Lee fulminated, “The continued carelessness with our safety is exactly the concern of every Nevadan who is told that we should welcome the storage of nuclear waste in our own backyard. But let me be clear: we’re not just Nevadans, we are Americans, and it’s clear that the Department of Energy does not take Americans’ health, safety, or security into consideration before making decisions.”

In a joint statement Democratic Sens. Catherine Cortez Masto and Jacky Rosen decried, “Last week, we were contacted by the Department of Energy and made aware of the situation. As a result, along with Governor Sisolak we’ve taken immediate action and sent a letter demanding answers from Secretary Perry, and scheduled an immediate classified briefing to ensure there is accountability and oversight on behalf of the State of Nevada. Yet again, the DOE has violated its mission, broken Nevadans’ trust and failed to follow its own compliance procedures.”

Gov. Sisolak released a statement after this past week’s briefing by Energy officials  saying, “I was beyond disappointed to learn of problems related to shipments of low-level radioactive waste from the DOE’s Y-12 facility to Nevada. … While we appreciate the courtesy of the in-person briefing, we will continue to do everything in the state’s power to hold them accountable, ensure there is a plan to fix this problem and prevent it from occurring again, and above all else, protect the health and safety of Nevadans.”

The errors apparently occurred for four years of the Obama administration without anyone catching it, but the agency that caught the error and reported it is dishonest, careless, incompetent and to blame.

The Energy Department released a statement to the media saying, “The components that were shipped pose no risk to the safety and health of the general public or workers at the facility at NNSS. The Department’s National Nuclear Security Administration has launched an internal investigation to determine how this went undetected for a six-year period.” Three of those years were during the previous Democratic administration, by the way.

Umbrage always seems to be taken only when the offended ones are of a different political party and, especially when the information can be used to bludgeon attempts to dispose of nuclear waste at Yucca Mountain.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

NNSS Area 5 storage area (file pix)