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: How and why Nevada became the 36th state

This week Nevadans celebrate Nevada’s entry into the Union as a state on Oct. 31, 1864 — 155 years ago.

Not only was Nevada “Battle Born,” as the flag proclaims, it was battle bred and born after a remarkably short gestation during the Civil War.

With Southern states seceding from the Union, in March 1861 President James Buchanan designated the western portion of the Utah territory as the Nevada territory. Though the Nevada population boomed with the gold and silver booms of the Comstock Lode and other finds, by 1864 its population was still only about 30,000, just half of the required 60,000 for statehood and well short of the 100,000 that each member of the House at the time represented.

Nevada became a state for the most compelling of reasons. Abraham Lincoln, the first Republican president, needed the votes in the election that occurred eight days after he declared Nevada the 36th state.

According to retired Nevada State Archivist Guy Rocha, Nevada’s votes were needed to re-elect Lincoln and build support for his reconstruction policies, including the 13th Amendment abolishing slavery.

The president then carried 60 percent of the Nevada vote and easily won re-election.

The new state’s motto — “All for Our Country” — and its Constitution reflect the Battle Born nature of the times and divided country. The Constitution states, “The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existance [existence], and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.”

Nevada not only ratified the 13th Amendment, as well as the 14th Amendment, which guarantees due process and equal protection under law, but Nevada Sen. William M. Stewart played a key role in the drafting of the 15th Amendment stating the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

After the territory was created, Lincoln promptly appointed party loyalists to fill offices. James Nye of New York was appointed governor and Orion Clemens became secretary, bringing along his younger brother Samuel to be an assistant.

Nye had campaigned for Lincoln in the previous election. Orion Clemens had studied in the St. Louis law office of Edward Bates, who became Lincoln’s attorney general.

The younger Clemens brother later adopted the pen name Mark Twain for his dispatches from Carson City to the Territorial Enterprise in Virginia City.

In a somewhat ironic turn of events, one of the first acts of the newly elected territorial legislature was to declare gambling illegal. According to Russell Elliott’s “History of Nevada,” Gov. Nye delivered an impassioned appeal to lawmakers: “I particularly recommend that you pass stringent laws to prevent gambling. It holds all the seductive vices extent, I regard that of gambling as the worst. It holds out allurement hard to be resisted. It captivates and ensnares the young, blunts all the moral sensibilities and ends in utter ruin.”

The law carried a fine of $500 and two years in jail.

While the lawmakers for the territory were outlawing what would one day generate more wealth than all the gold and silver mines, they also were still dithering over what name the future state would bear. At one point the legislature approved an act “to frame a Constitution and State Government for the State of Washoe.” The names of Humboldt and Esmeralda also were bandied about until Nevada won out.

The original territory created in 1861 was added to in 1862 and 1866 by slicing off vertical chunks of western Utah. In 1867 the southern-most part of the state, now mostly Clark County, was added by taking the westernmost reaches of the Arizona Territory. Until 1909, Clark County was a part of Lincoln County.

The New York Herald published a glowing account of Nevada’s admission as a state, predicting: “There can be no doubt that the future of the new State will be as propitious as its beginning. With so much available wealth in its bosom, it is natural that it must attract intelligent and enterprising people to go and settle there.”

Intelligent and enterprising people, indeed.

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: 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: Judge’s dismisses states’ tax reform challenge

A federal judge in New York made short work of the lawsuit filed by New York, New Jersey, Connecticut and Maryland seeking to block one aspect of the Tax Cuts and Jobs Act signed by President Trump in 2017.

The states challenged the law because it capped at $10,000 the amount of state and local taxes (dubbed SALT) that could be deducted from IRS filings. Previously the wealthy in high-tax states could deduct most state and local taxes, meaning the taxpayers in lower-taxed states, such as Nevada, were paying a disproportionate share of federal taxes.

New York, for example, points out in its filings in the lawsuit that prior to the $10,000 cap its taxpayers who itemized deductions claimed an average SALT deduction of nearly $22,000. The other three states estimated their taxpayers in 2018 paid $7.5 billion more to the IRS than they had prior to the cap.

The Democrat-dominated states argued that since the tax law passed without a single Democrat in Congress voting for it and was signed by a Republican president that its true purpose was “to coerce a handful of States with relatively high taxpayer-funded public investments — States that are primarily Democratic leaning — to change their tax policies.”

In his 37-page opinion U.S. District Court Judge J. Paul Oetken dismissed the state’s contention that the tax reform unconstitutionally coerces the sovereign states to lower their taxes. In fact he cited a Supreme Court opinion in the case of South Dakota v. Dole, in which the court said it is permissible for Congress to withhold federal highway funds from states that failed to raise the legal drinking age to 21. Sounds like the definition of coercion.

Judge Oetken wrote, “To be sure, the SALT cap, like any other feature of federal law, makes certain state and local policies more attractive than others as a practical matter. But the bare fact that an otherwise valid federal law necessarily affects the decisional landscape within which states must choose how to exercise their own sovereign authority hardly renders the law an unconstitutional infringement of state power.”

He later wrote that he declined to speculate on Congress’ motives for passing the SALT deduction cap.

“So even if, as the States contend, Congress enacted the SALT cap in order to exert downward pressure on state and local tax rates, such a motive poses no constitutional problem as long as the states remain free ‘not merely in theory but in fact’ to set their own tax policies,” the judge concluded.

While the four high-tax states view the tax reform as coercive, the rest of the states tend to view the SALT cap as rectifying a long-standing inequity.

Nevadans — along with residents of New Hampshire, Florida, Wyoming, Texas, South Dakota and Alaska — used to be able to deduct about 1 percent or less of their adjusted gross income, while those who live in New York, Maryland, D.C. and California could deduct more than 5 percent. Nearly one-third of the additional federal tax dollars generated by the SALT cap comes from Californians and New Yorkers.

Using 2010 statistical data from the IRS, you find Californians who filed for state and local income tax deductions claimed deductions of $10,700 per return. Nevadans who filed for the state and local sales tax deduction claimed only $1,430 per return. Calculated on a per capita basis, Californians claimed $2,116 in federal income tax deductions, while Nevadans claimed only $166 per person for SALT deductions.

“The cap, like any federal tax provision, will affect some taxpayers more than others and, by extension, will affect some states more than others,” Judge Oetken wrote. “But the cap, again like every other feature of the federal Tax Code, is a part of the landscape of federal law within which states make their decisions as to how they will exercise their own sovereign tax powers.”

The tax reform is far more fair to a majority of the states that maintain at least some modicum of tax restraint.

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: Casting doubt on climate doomsayers

The apocalypse is nigh.

It must be so. It is in all the papers.

Why even a 16-year-old Swedish scold lectured the delegates to the United Nations recently:

“You have stolen my dreams and my childhood with your empty words and yet I’m one of the lucky ones. People are suffering. People are dying. Entire ecosystems are collapsing. We are in the beginning of a mass extinction and all you can talk about is money and fairytales of eternal economic growth. How dare you!

“For more than 30 years, the science has been crystal clear. How dare you continue to look away and come here saying that you’re doing enough when the politics and solutions needed are still nowhere in sight.”

If some pulpit-pounding preacher were to repeatedly predict the end of the world, only to have the world blithely continue unabated, one would expect his congregation would shrink a bit. Not so with the climate change doomsayers.

Breitbart writer John Nolte recently put together a list of 41 environmental doomsday predictions dating from 1967 through 2014 — everything from an impending ice age to rising oceans obliterating whole nations to an ice-free Arctic to acid rain to killer bees. Of the 41, not a single one has come to pass, but the congregation keeps shouting “Amen!”

“Think about that … the so-called experts are 0-41 with their predictions, but those of us who are skeptical of ‘expert’ prediction number 42, the one that says that if we don’t immediately convert to socialism and allow Alexandria Ocasio-Crazy to control and organize our lives, the planet will become uninhabitable,” Nolte writes. “Why would any sane person listen to someone with a 0-41 record?”

This summer James Taylor, a director and writer at the Heartland Institute, cited the National Oceanic and Atmospheric Administration’s (NOAA) own data to argue there has been no atmospheric warming in the continental United States since 2005.

According to Taylor, in 2005 NOAA began recording temperatures at 114 sites spaced across the nation that were far away from urbanization, such as growing airports that tend over time to become greater and greater heat sinks, thus skewing data. Using data from those pristine sites, Taylor says U.S. temperatures are now slightly cooler than they were 14 years ago.

“There is also good reason to believe U.S. temperatures have not warmed at all since the 1930s,” Taylor writes. “Raw temperature readings at the preexisting stations indicate temperatures are the same now as 80 years ago. All of the asserted U.S. warming since 1930 is the product of the controversial adjustments made to the raw data. Skeptics point out that as the American population has grown, so has the artificial warming signal generated by growing cities, more asphalt, more automobiles, and more machinery.”

It’s not just the U.S., Taylor says, noting that globally satellite instruments report that temperatures have risen only 0.15 degrees Celsius since 2005 — less than half the increase predicted by the oft-cited U.N. Intergovernmental Panel on Climate Change.

As for those models, industrial chemist Mark Imisides recently penned a piece for Principia Scientific International arguing that it is thermodynamically impossible for carbon dioxide to cause global warming.

“In a nutshell, water takes a lot of energy to heat up, and air doesn’t contain much,” Imisides writes. “In fact, on a volume/volume basis, the ratio of heat capacities is about 3300 to 1. This means that to heat 1 litre of water by 1˚C it would take 3300 litres of air that was 2˚C hotter, or 1 litre of air that was about 3300˚C hotter!”

In an everyday example, he compares this to trying to heat a cold bath by putting a dozen heaters in the room and expecting the water to get warmer.

He further relates that for every ton of water there is only a kilogram of air. To heat the entire ocean by just 1 degree Celsius would require heating the air above it by 4,000 degrees Celsius.

So, there is no warming and, if there were, the culprit wouldn’t be burning fossil fuels anyway. But the apocalypse is nigh and we must act yesterday.

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: NPRI issues report card on 2019 Legislture

The conservative/libertarian Nevada Policy Research Institute (NPRI) recently published its biennial report card on our state’s legislative session, but, rather than just rate lawmakers on how they voted, this year the report card also delves into issues and lawmaker actions on bills that never even came up for a vote.

For example, the report looks into how and why Assembly Bill 420 — which sought to eliminate in Nevada the practice of civil asset forfeiture by police agencies, often without any criminal conviction of any crime — was buried without even coming up for a vote in the Senate Judiciary Committee. For years Nevada law enforcement agencies have seized cash, cars and homes suspected of being used in the commission of a crime, such as drug dealing. The agencies then kept the proceeds to spend as part of their budget — a practice the Institute for Justice has dubbed “policing for profit.”

An NPRI representative testified in support of AB420 in March, saying the reform would constitute a major victory for due-process and the rights of property owners. The Assembly then passed the bill by a 34-6 margin, drawing broad bipartisan support.

But like a similar bill in the previous session, the reform effort died in the Senate Judiciary Committee, where two of the committee members are Clark County prosecutors, whose budgets benefit from the seizures — Democrats Nicole Cannizzaro and Melanie Scheible.

“As we write this 2019 Report Card, this episode again reminds us of the swampiness and incestuous nature which characterizes Nevada politics,” the report card states. “Unless the state’s constitutional prohibition on dual servants is finally enforced, Nevadans should expect to see plenty more examples of lawmakers putting the concerns of their government employers over those of the very citizens they claim to represent.”

You see, the Nevada Constitution explicitly prohibits the employees of one branch of government from serving as a lawmaker, too. Article 3, Section 1,  reads: “The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.”

The provision has been blatantly ignored for years.

The NPRI report card singled out Cannizzaro as the anti-criminal justice reform lawmaker of 2019. Democratic Assemblyman Steve Yeager, a former Clark County public defender who was the architect of AB420, was tagged the pro-criminal justice reform lawmaker of 2019.

The report also addressed a failed effort to increase government transparency — Senate Bill 287 that would have put some teeth into enforcement of the 1911 Nevada Public Records Act by imposing fines on agencies and government employees who wrongly and in bad faith violate the law by withholding public records — and a successful effort in Senate 224 to deny the public access to pertinent information about government pensioners.

SB287 was backed by a coalition dubbed Right to Know Nevada — which included NPRI, the ACLU, the Nevada Press Association, several newspapers and journalists — but it met huge opposition from government lobbyists. In the end the bill was greatly watered down. No government worker would be subjected to a fine and the maximum fine an agency would have to pay was cut from $250,000 to $1,000.

SB224, sponsored by Democratic Sen. Julia Ratti of Sparks, sought to make the names of those receiving taxpayer-funded government pensions secret. Faced with the fact that Democratic Gov. Steve Sisolak has long supported government transparency, the bill eventually was changed to allow the release of the names of pensioners and the amounts paid, but key contextual data was made secret — the retiree’s last employer, years of service credit, retirement date and whether the benefit is a disability or service retirement. The governor signed it into law.

For their efforts NPRI named four state senators pro-transparency lawmakers of 2019 — Democrats David Parks and Melanie Scheible and Republicans Ben Kieckhefer and Ira Hansen. Anti-transparency lawmakers were Ratti and Republican Assemblyman Glen Leavitt.

The report also delves into the issues of collective bargaining for public employees, education and various tax bills. The 48-page report card is posted online at https://www.npri.org/studies/2019-legislative-report-card/

As for how the lawmakers voted, NPRI rated Republican Assemblyman John Ellison of Elko No. 1 with a 92.55 percent score. No Democrat garnered a rating of better than 36 percent.

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: 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.