Newspaper column: Trump is reshaping the federal judiciary — for the better

Thanks, Harry, because you exercised the “nuclear option” in 2013, ending the requirement that judges had to be confirmed by at least 60 senators instead of a simple majority, President Donald Trump has secured the appointments of about twice as many federal judges as each of his three predecessors — and most of them have been conservatives sworn to protect the fundamental liberties spelled out in the Constitution.

Of the 50 circuit court judges nominated by Trump and confirmed by the Senate, only 17 managed to garner the previously mandated 60 Senate votes. Among those was former Nevada Solicitor General Lawrence VanDyke, who was confirmed by a vote of 51-44 with both of Nevada’s Democratic senators choosing politics over principles and voting “nay.”

In November 2013, then-Democratic Senate Majority Leader Harry Reid of Nevada exercised the nuclear option, calling for changing the Senate rules by a simple majority vote. It passed, 52-48 with three Democrats voting against changing the rules.

President Barack Obama praised the action saying Republicans were blocking his nominees based on politics alone, not on the merits of the nominee, according to a Politico account at the time.

Then-Republican Senate Minority Leader Mitch McConnell of Kentucky tried to recess the Senate for the day to block the vote. “The solution to this problem is an election,” he said. “The solution to this problem is at the ballot box. We look forward to having a great election on 2014.”

Republicans regained the majority in the Senate in 2014. In 2017, now-Majority Leader McConnell further changed the rules to allow confirmation of Supreme Court justices by a simple majority. Neil Gorsuch was confirmed by a 54-45 vote, and Brett Kavanaugh by 50-48.

In addition, the Senate has confirmed 133 of Trump’s federal district court nominees. While most of those garnered more than 60 recorded votes, many were confirmed by a voice vote.

In an editorial praising the caliber of the Trump judicial nominees, The Wall Street Journal noted, “The Trump-McConnell judiciary may be Harry’s finest achievement.”

The editorial noted that when Trump took office, Democratic appointees made up a majority on nine of the 13 circuit courts. Trump’s 2019 appointments flipped the majorities in the 2nd, 3rd and 11th Circuit Courts, meaning seven circuits now have a majority of Republican appointees.

In addition, the longtime uber-liberal 9th Circuit Court of Appeals, to which VanDyke was appointed, now consists of 16 Democratic appointees and 13 Republican appointees. “Expect fewer headlines featuring nationwide injunctions out of San Francisco,” the editorial opined.

The Journal editorial predicts, “The new wave of conservative judges is more likely to protect such core liberties as religious freedom, political speech and assembly, gun and property rights. Many will also be more alert to violations of the Constitution’s separation of powers, including regulatory abuses. Yet there are varying opinions on criminal law, executive authority, and the scope of judicial restraint, among other issues.”

Reid is nothing if not consistent. In a recent op-ed in The Salt Lake Tribune, Reid complained, “Senate Republicans have hijacked our Supreme Court. They stole a seat that should have been filled by President Obama in 2016 and they rushed to confirm Brett Kavanaugh last year despite ample evidence that he lied to Congress. The result is the Supreme Court is now a ticking time bomb, set to blow up any meaningful progressive reforms for decades to come.”

He concedes his own role in the outcome, saying, “Changing the rules to confirm Obama’s highly qualified judges was the right and necessary thing to do. If we had not done it, Donald Trump would have inherited more judicial vacancies than he already did, and then even more of his right-wing ideologues would be on the bench today eviscerating rights Americans have long held dear.”

Like the Second Amendment right to gun ownership? Or the First Amendment rights of free speech and exercise of religion? The rights delineated in the Fourth, Fifth and Sixth amendments?

A recent Washington Examiner editorial also notes what Reid has unintentionally wrought and concludes, “During his run for the presidency, Trump regularly and energetically promised to make a priority of putting well-credentialed conservatives of excellent character and scholarship on the federal bench. It is a promise he has kept, much to his credit and for the country’s greater good.”

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: 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: 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.