Updated September 20, 2019 - 6:07 pm
WASHINGTON — President Donald Trump on Friday announced his intent to nominate former Nevada Solicitor General Lawrence VanDyke to serve on the Ninth U.S. Circuit Court of Appeals.
VanDyke, who served as a solicitor general under former Nevada Attorney General Adam Laxalt and is currently a deputy assistant attorney general with the Justice Department, would fill the seat of Judge Jay Bybee of Las Vegas, who announced he will take senior status at the end of the year.
If confirmed by the Senate, VanDyke would join the San Francisco-based court that hears challenges to district court decisions in nine Western States, including Nevada, as well as the U.S. territories of Guam and the Northern Mariana Islands. It also hears appeals of decisions of federal administrative agencies within its circuit.
Van Dyke graduated from Harvard Law School and was an editor of the Harvard Law Review. He also clerked for U.S. Court of Appeals for the District of Columbia Judge Janice Rogers Brown.
The announcement came after the Review-Journal reported that Nevada Sens. Catherine Cortez Masto and Jacky Rosen, both Democrats, announced they were forming a bipartisan commission to vet potential candidates for federal judgeships in Nevada. The two senators had floated the idea of such a panel in January, after Rosen won the seat formerly held by Republican Dean Heller.
In a statement, both senators criticized Trump’s decision to move forward with the nomination without their support.
“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 9th Circuit,” they said.
“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.”
University of Richmond School of Law Professor Carl Tobias said it was unlikely the White House had reached out to Nevada’s Democratic senators about the choice. “I can’t imagine they’ve done anything more than the bare minimum,” said Tobias. “They just will run over the Democrats and the Democrats don’t have any answer to that.”
While Senate tradition allows a state’s senators to withhold “blue slips” to block the confirmation of district court judges from their home states, the GOP-controlled Senate is not bound to reject an appellate court nominee who is “blue slipped” by one or both senators.
For example, Tobias said, when President Barack Obama nominated Anne Rachel Traum, a UNLV law professor, to the district court bench in 2016, then-GOP Sen. Dean Heller, R-Nev., was able to block her. The seat remains unfilled. Heller also used the blue-slip process in 2012 to block then-state District Court Judge Elissa Cadish from an appointment to the federal bench. Cadish was elected to the Nevada Supreme Court last year.
Annette Magnus, executive director of the liberal group Battle Born Progress, said in a statement: “As is typical of most Trump judge picks, VanDyke has a publicly available rap sheet of troubling decisions and poor judgment that should concern every Nevadan who values the right to abortion, LGBTQ+ civil liberties, getting money and corruption out of politics, and more.
“His relationship with former attorney general and failed gubernatorial extremist Adam Laxalt should raise questions about his qualifications and fair-mindedness. He is the epitome of an out of touch carpetbagger and the definition of conservative welfare where mediocre men are empowered to fail up while the rest of the community suffers.”
Praise from colleagues, classmates
Laxalt told the Review-Journal that he came to rely on VanDyke’s legal advice, his penchant for tackling “very challenging appellate work” and his talent as a “really, really amazing writer.”
Rep. Mark Amodei, the only Republican in the Nevada congressional delegation, praised VanDyke for fighting successfully “for the rule of law, especially in the protection of our cherished land, water and property rights.”
In 2014, VanDyke left his position as Montana solicitor general to run against an incumbent justice on the Montana Supreme Court but lost the election to the former Democratic lawmaker.
It was the most expensive judicial race in Montana history and drew the notice of the New York Times, which described the race as a contest between a centrist Democrat and an ideological Republican who signed onto amicus briefings that supported gun rights and same-sex marriage bans.
Laxalt told the Review-Journal it is “not fair to go after a lawyer who worked under a boss’s view,” in this case Montana Attorney General Tim Fox. When VanDyke worked for Laxalt, “He never signed onto a single brief without my approval.”
In one instance in 2014, VanDyke and Cortez Masto crossed paths when Montana joined a legal brief that defended Nevada’s ban on same-sex marriage and Cortez-Masto, then Nevada’s attorney general, decided not to defend the law because of a court ruling that suggested it would be found unconstitutional.
The Ninth Circuit later ruled both Nevada’s and Montana’s bans on same-sex marriage to be unconstitutional.
Carrie Severino, chief counsel and policy director of Judicial Crisis Network, a conservative legal advocacy group, defended the Montana decision to challenge “the state attorney general not defending the law that the people of Nevada passed.”
Deep respect for the Constitution
Severino praised the president’s choice, saying in a statement, “Lawrence VanDyke was a classmate of mine at Harvard Law School, and you couldn’t ask for a better lawyer or a man of more exemplary character,” she said. “With deep roots in the West, Lawrence is very familiar with the challenges faced by states in the Ninth Circuit, and, as solicitor general for Montana and Nevada, he was on the front lines of the legal challenges to the overreach by the Obama administration and its job-killing EPA.”
In the National Review, Severino praised VanDyke for securing “an injunction staying enforcement of the EPA’s 2015 ‘Waters of the United States’ rule, which unduly expanded federal power over state and local waters and imposed onerous burdens on ranches and farms as well as government entities.” Earlier this month, the EPA announced it would return to the pre-2015 clean-water regulations.
Nevada Senate Minority Leader James Settelmeyer praised the Van Dyke pick.
“In Nevada, we have seen multiple attempts by the federal government to improperly seize further control over our water rights, property rights, and our basic fundamental liberties,” the Republican lawmaker said. “These actions severely impact our critically-important mining, ranching and agriculture industries. Lawrence has deep respect for our Constitution, and I’m thankful for President Trump nominating him and I look forward to his confirmation and continued service to our nation and to the rule of law.”