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: EPA Repeals Obama-Era Land Use Restrictions

Trump’s EPA rolls back Obama-era Clean Water Act rules. (AP pix via WSJ)

The Trump administration’s Environmental Protection Agency has finalized the repeal of yet another Obama-era regulatory overreach, specifically rules that defined every stream, ditch, seasonal puddle and muddy hoof print as being covered by the restrictions of the Clean Water Act of 1972 that was intended to prohibit pollutants being dumped into navigable waters — known as the waters of the United States or WOTUS.

First announced in December but finalized this past week, EPA Administrator Andrew Wheeler said, “Our revised and more precise definition will mean that farmers, property owners and businesses will spend less time and money determining whether they need a federal permit.”

When the change was first proposed, Wheeler said, “Property owners will be able to stand on their property and determine what is federal water without having to hire outside professionals.”

National Cattlemen’s Beef Association President Jennifer Houston issued a statement applauding the change.

“The 2015 WOTUS Rule was an illegal effort by the federal government to assert control over both land and water, significantly impacting our ability to implement vital conservation practices,” Houston said. “After years spent fighting the 2015 WOTUS Rule in the halls of Congress, in the Courts, and at the EPA, cattle producers will sleep a little easier tonight knowing that the nightmare is over.”

American Farm Bureau Federation President Zippy Duvall released a statement saying, “No regulation is perfect, and no rule can accommodate every concern, but the 2015 rule was especially egregious. We are relieved to put it behind us. We are now working to ensure a fair and reasonable substitute that protects our water and our ability to work and care for the land. Farm Bureau’s multi-year effort to raise awareness of overreaching provisions was powered by thousands of our members who joined with an array of allies to achieve this victory for clear rules to ensure clean water.”

The National Association of Home Builders and the National Association of Manufacturers also praised the repeal of the WOTUS overreach, according to The Wall Street Journal, which noted that roughly 25 percent of every dollar spent on a new home in this country is due to regulatory-compliance costs.

The change brings the EPA more in line with what the U.S. Supreme Court has said is appropriate. In 2010 the Hawkes Co., which mines peat for use on golf courses among other things, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Army Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000. The Corps said the wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. Failure to comply carried a threat of fines amounting to $37,000 a day and criminal prosecution.

In a concurring opinion in that case, Supreme Court Justices Anthony Kennedy, Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Chief Justice John Roberts during arguments noted the arduousness of compliance. He said a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” He failed to mention that is also often futile.

Then-Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment at that time, saying, “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Nevada’s current Democratic Attorney General is being quoted by the press as saying, “At this time, Nevada believes it would be in its best interest to remain under the pre-2015 WOTUS rule,” and the Nevada Department of Environmental Protection is said to agree.

Though this change in the rules used by the EPA is welcome, some future administration could easily overturn them. Congress needs to act to clarify the Clean Water Act. Previously, the House and Senate passed resolutions that would have blocked the EPA water rules, but in January 2016 the Senate failed to override Obama’s veto.

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.


Newspaper column: Annual Basque Fry will tout conservative values

Adam Laxalt addresses the 2017 Basque Fry. (R-J file pix

With Democrats holding strong majorities in the Nevada state Senate and Assembly, as well as every statewide constitutional office save one, there seems to be a sense of urgency about this year’s fifth annual Basque Fry coming Sept. 14 at the Corley Ranch in Gardnerville.

The conservative speakers, family entertainment and lamb fries fest is put on by Adam Laxalt’s Morning in Nevada PAC and is modeled after the Basque Fries his grandfather Paul Laxalt, a former Nevada governor and U.S. senator, used to conduct in Nevada and Washington. Adam Laxalt is the state’s former attorney general and was the Republican candidate for governor in 2018.

“We’re very excited about the fifth annual Basque Fry,” Laxalt said during a recent interview. “We’re fortunate this event has taken permanent hold in Northern Nevada. We expect a very large crowd again and think a lot of people are going to be very enthusiastic about it. We’ve talked, leading to the event, about the importance of trying to take back our state and we plan on discussing that at the Basque Fry.”

The list of scheduled speakers include Mick Mulvaney, acing White House chief of staff; Matt Schlapp, chair of the American Conservative Union, and his wife Mercedes Schlapp, a former White House director of communications; Matthew Whitaker, a former U.S. attorney general; Corey Lewandowski, who served as President Trump’s campaign manager; John Fund, a columnist for the National Review; Katie Williams, who had her Miss Nevada crown taken away for expressing conservative political views; and, of course, Laxalt.

Laxalt said he expects he and other speakers will highlight how radical and left-wing the Democratic Party and its presidential candidates have become, saying their positions do not align with Nevada values and are not good for our state.

“Some of our Democrats kind of hide out and they are not put on the record whether they are going to denounce these things or whether they support them,” he said. “So, I think it is important to get these positions on the record and in the public consciousness of Nevadans, so they understand what the Democratic Party represents today. The old blue-collar, fairly conservative Democratic Party that existed in Nevada a few decades ago, maybe even closer than that, is long gone. So we have to draw that contrast for everyday voters, especially swing voters in our state.”

Laxalt cited for example the Democratic position supporting open borders and denigrating the Immigration and Customs Enforcement agents and the laws they are duty bound to enforce.

He also expects the topic of media bias to be addressed. “It’s just frustrating, because for me it is the rule of law. I think that’s what has made our country unique and is an essential piece of what made America the greatest country in modern times. The other side will ignore the rule of law whenever it is politically expedient for them, and they rarely have the media holding them accountable for that kind of thing,” he said.

This year the Basque Fry is being held in conjunction with the Conservative Political Action Conference West, which is being put on by the American Conservative Union at the Grand Sierra Resort in Reno the day before.

Laxalt said it is important for conservatives to build policy infrastructure. “To have such a nationally reputable organization like the American Conservative Union and CPAC to come to Nevada and create a CPAC West, I think is going to be great for us,” he said. “We need to rebuild the conservative intellectual base in this state, which we know was not encouraged in the last many years or supported. I think it is important that message is getting out and that people understand there is a strong alternative to progressivism, leftism, socialism, et cetera.”

One of the panels at CPAC West will address the Western lands policies over the past few decades, which have hampered the economic wellbeing of rural communities.

Laxalt concluded by saying, “This type of event is important to encourage people to engage, and if we don’t engage we will lose this state and we will lose this country. Unfortunately, many of our voters they don’t have politics as a hobby. They are raising families and running small businesses and things like that. It is just very hard to get people engaged in this otherwise ugly business, but we need people to get more engaged. I still feel confident if we get more and more people into the system, then we can win back this state.”

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.

Addition: Former Interior Secretary Ryan Zinke is also speaking at the Basque Fry.


The law of unintended consequences changes legislative election dynamics

The morning newspaper reports today that a change in the law in 2015 might effectively disenfranchise a number of voters in four Nevada legislative districts.

In one state Senate race and three Assembly races there are candidates on the June 14 primary for only one of the two major political parties. Previously, if there were only two candidates of a major party there would be no primary and both would advance to the General Election in November. If there were three or more candidates, the top two would advance.

But Senate Bill 499 changed the law and says: “If a major political party has two or more candidates for a particular office, the person who receives the highest number of votes at the primary election must be declared the nominee of that major political party for the office.”

Thus, for example, if there are only two Republicans seeking an office, one of them is the party nominee and appears on the ballot in November, leaving Democrats and independents in the district little choice save the one Republicans handed them.

The bill also moved back the deadline for independent and minor party candidates to qualify for the General Election from June to July, so a Democrat could still file as an independent but not as a nominee of the party. Minor parties may also nominate candidates.

Assemblyman Chris Edwards

According to the newspaper account, one Senate District in Clark County has two Democrats in the primary and no Republican. One Assembly District in Clark has three Republicans running and another only two Republicans. There are two Republicans seeking a Washoe Assembly seat.

The change in law creates some different dynamics in some races.

Take for example Assembly District 19, which includes Mesquite. Incumbent Republican Assemblyman Chris Edwards is being challenged by conservative Republican Connie Foust. As the newspaper reports, only 39 percent of the district is Republican.

Edwards has the distinction of voting for the $1.4 billion in tax hikes in 2015 before voting against them.

GOP challenger Connie Foust

Conceivably Edwards would have a better chance of re-election if he faced Foust in a General Election with Democrats also voting rather than in a GOP-only primary.

Foust is thumping on the tax issue in her campaign against Edwards. “The current incumbent broke his promise when he said, ‘Now is not the time to raise taxes’, and then proceeded to vote for tax increases in 26 out of 32 tax bills!” Foust’s campaign website declares.

Similar dynamics could be a factor in other races.

As originally introduced SB499 was a weird form of open primary (a topic of discussion here earlier) with some odd requirements. Read the description and see if you can figure it out:

AN ACT relating to elections; creating a modified blanket primary election system for partisan offices; authorizing any person who files a declaration or acceptance of candidacy and pays a filing fee to be a candidate for a partisan office at a primary election; providing, with limited exceptions, that the two candidates at a primary election for a partisan office who receive the highest number of votes must be declared nominees and have their names placed on the ballot for the general election; providing, with limited exceptions, that the two nominees on the ballot for the general election must not be affiliated with the same political party unless all of the candidates at the primary election are affiliated with the same political party; providing that the two nominees on the ballot for the general election may not be independent candidates unless all of the candidates at the primary election are independent candidates; eliminating provisions that prohibit a voter from casting a ballot in a primary election for partisan office for a candidate with a political affiliation different than that of the voter; making various conforming changes; and providing other matters properly relating thereto.

As signed into law the bill just changes minor party and independent candidate filing deadlines and allows only one major party candidate to advance from the primary to November.

The law of unintended consequences never can be repealed.

There goes another great newspaper tradition — dueling editorial pages

You’ve got to appreciate the fine, old tradition of dueling newspaper editorial pages.

Tit for tat. Thrust and parry. Scratching, gouging, rolling in the mud and the blood and the beer.

Too bad that tradition has died and what passes for dueling newspaper editorials in this town includes one unarmed, stumbling, somewhat demented combatant that isn’t even a newspaper any more.

A week ago the Las Vegas Review-Journal published a little toss-off of an editorial pointing out that the Ivanpah solar thermal power plant off I-15 just south of Primm is not quite as “clean” as originally advertised.

It turns out the green energy produced at the Ivanpah solar power facility — “funded by $1.6 billion in federal loan guarantees and $600 million in tax credit” — isn’t so green after all.

The editorial notes that the three towers that are the focal point of thousands of mirrors must burn natural gas to augment the power of the sun when a cloud passes by and to kick start the turbines in the mornings. “Last year, the plant burned enough to emit 46,000 metric tons of carbon dioxide. Which officially makes a facility … a polluter,” the editorial states. “A dirty secret about ‘clean’ energy is that it requires fossil fuel backup that’s substantially cheaper to produce — and doesn’t require taxpayer handouts to be built. So why make taxpayers subsidize a technology that can’t meet demand for power on its own and doesn’t have the environmental benefits promised — to say nothing of the thousands of birds the Ivanpah plant incinerates every year?”

A week later the “competing” Las Vegas Sun counters with an editorial pooh-poohing the “conservative” newspaper without naming the R-J. But the editorial appears only online and not in the print section that appears inside the morning paper under an ill-advised and long-past-its use-by-date joint operating agreement. What is the point of a print version of a paper that doesn’t print anything?

The lede on the Sun calumny is: “Among the roles of newspapers is to publish editorials that generate healthy, constructive community conversations and to influence public opinion on certain issues of the day. Sound conclusions should be based on facts and logic.”

The editorial then illustrates its point by blithely declaring: “California energy officials say the operators of Ivanpah stay within their licensing agreement to use 5 percent or less natural gas and 95 percent or more solar energy to produce electricity. So it’s still a net-clean-energy operation — by far.”

The Sun editorialist proffered that the R-J “is so totally devoid of logic and intellectual honesty, it is laughable.”

Not so fast fight fans. You see the R-J attributes the facts in its editorial to an article in the Riverside newspaper. Apparently the Sun editorialist overlooked the fact that a longer version of the same story appeared a couple of days later in the Orange County newspaper.

That story reports that in 2010 the California Energy Commission indeed required, as a condition of licensing, heat from burning natural gas at the plant be no more than 5 percent of the heat captured from the sun.

“But in March 2014, after three months of commercial operation, plant operators found they needed to use more natural gas, and they asked the commission for a change in the rules. In August 2014, the commission voted to scrap the 5 percent rule and increased the plant’s annual gas volume limit by 38 percent,” the Orange County paper reports. Additionally, in the past year the plant generated only 59 percent — with sun and gas — of its listed capacity of 940,000 megawatt-hours of electricity.

In fact, the Ivanpah plant produces so much carbon it comes under California’s cap-and-trade program, because its annual carbon dioxide output exceeds 25,000 metric tons. Under the program a plant must cut carbon emissions or buy credits from those who do.

The Sun editorial concludes with this self-eviscerating obloquy: “For a newspaper to stubbornly and blindly adhere to its ideology and clutch to a denial of reality is deeply troubling and doing a disservice to its readers.”

Amen, amen. Sound conclusions should be based on facts and logic. Now where have I heard that before?

Ivanpah thermal solar plant south of Primm. (OCR photo)

Since the R-J has no one to trade jabs with, apparently they’ve taken to doing that internally with dueling columnists. A week ago Glenn Cook took the side of Attorney General Adam Laxalt in his tiff with Gov. Brian Sandoval over whether to sue the Interior Department over land use restrictions to protect greater sage grouse, while Steve Sebelius sided with Sandoval.

This week Cook explains why it is no big deal that early applicants for education savings accounts are more affluent, while Sebelius sees some major failure in the same stats.

Pick your fights where you can find them.

Conservative television group purchases KSNV-Channel 3

The rumor at the time of the death of KSNV-Channel 3 owner Jim Rogers was that conservative Sinclair Broadcast Group might buy the station and turn its editorial policy 180-degrees and spell trouble for its stable of liberal pundits.

Today the Baltimore company announced it has purchased the NBC affiliate for $120 million.

Jim Rogers

“We are pleased to add KSNV to our portfolio,” the press release quoted Steve Pruett, co-chief operating officer of Sinclair’s television group as saying. “With the addition of the station, our news footprint will cover all the major cities in the state of Nevada, allowing us to be a leading provider of local and regional news.”

Note the immediate reference to the news footprint.

The left-wing MediaMatters compiled a litany of conservative deeds by the group, saying “Sinclair has used its stations to promote a conservative, anti-progressive message.”

Its newscasts often include editorials by conservative commentator Mark Hyman. The stations supported Mitt Romney. In 2010 they ran a 25-minute piece that said Obama “displays tendencies some would call socialist.”

KSNV liberal pundit Jon Ralston, a defrocked newspaper columnist, is already hinting at things to come, saying in his morning email: “Big news in the TV (and my) world this morning. Sinclair has purchased KSNV, which means the huge company now owns the two major NBC outlets in Nevada. Sinclair has conservative owners, a dramatic change from the Jim Rogers days.”

The sale is expected to be completed in first quarter of 2015.




Might Channel 3 be in for some really big changes?

The death of Channel 3 owner Jim Rogers on Saturday has prompted an outpouring of well deserved plaudits for his philanthropy and dedication to the community and education, but perhaps the most interesting item with far-reaching implications for the future was atop Norm Clarke’s column today.

Though Rogers had told the staff of KSNV-TV this past December, during his battle with cancer, that “whatever happens, the station will not be put up for sale,” Clarke reports those staffers are concerned about a recent visit by Sinclair Broadcast Group chairman, president and CEO David D. Smith.

While Rogers was an unrepentant liberal, Smith’s group, which has been on a TV station buying binge, is die-hard conservative.

Such a sale would have implications for programming and personnel — such as the lowly rated Jon Ralston program.

In 2004 Sinclair stations were ordered to air a documentary critical of Democratic presidential candidate John Kerry. Its newscasts often include editorials by conservative commentator Mark Hyman. The stations supported Mitt Romney. In 2010 they ran a 25-minute piece that said Obama “displays tendencies some would call socialist.”

Clarke reports:

If Sinclair were to purchase Channel 3, it likely would have major political implications.

“It could go from liberal ownership to conservative,” said a source at the station. “Jim more than leaned left and these guys more than lean right.”

Though Rogers and I locked horns on a few occasions over the past decades, he was always personally courteous and civil. He has given many people a second chance and has been good for the community. He leaves a legacy.

We’ll wait and see what the next chapter at Channel 3 is. Perhaps, it was just a friendly visit by someone in the same business.

Jim Rogers and I. (screen grab)