The Senate votes today on one of the most controversial Trump nominees of this year: Lawrence VanDyke.

Background

Lawrence James Christopher VanDyke was born in 1972 in Midland TX.  After getting a B.S. from Montana State University in 1997, VanDyke attended Harvard Law School, where he graduated magna cum laude in 2005.  After graduating from law school, VanDyke clerked for Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit and then became an associate at Gibson Dunn in Dallas.^[1] 

In 2012, VanDyke served as Assistant Solicitor General in Texas for a year before being selected by newly elected Attorney General Tim Fox as Attorney General in Montana.^[2]  In 2014, VanDyke ran for a seat on the Montana Supreme Court but was not elected.  He then moved to Nevada to become Nevada’s Solicitor General under Attorney General Paul Laxalt.^[3] 

In 2019, after Laxalt left and the Nevada Attorney General’s Office fell to Democrats, VanDyke joined the Department of Justice as Deputy Assistant Attorney General in the Environmental Division.

History of the Seat

VanDyke has been nominated for a future vacancy that will open upon the retirement of Judge Jay Bybee on December 31, 2019.  VanDyke was contacted by the White House to gauge his interest in a Ninth Circuit appointment in July 2019 and was nominated on September 19, 2019.

Legal Career

While VanDyke started his legal career as an associate at Gibson Dunn, the bulk of his career has been spent at the Solicitor General’s Offices in Texas, Montana, and Nevada.  Over his career, VanDyke has litigated extensively in state and federal courts.

In addition, VanDyke has also represented a number of conservative organizations and entities, including Alliance Defending Freedom, First Liberty, and Gays & Lesbians for Individual Liberty.

In particular, VanDyke has litigated against federal regulations, successfully enjoining a Department of Labor rule that reduced the number of employees who were exempt from overtime pay under the Fair Labor Standards Act.^[4]

Writings

Consistent with the rest of his legal career, VanDyke’s writings generally reflect a conservative legal and political philosophy.  For example, as a law student, VanDyke authored a book review of Francis Beckwith’s Law, Darwinism, & Public Education: The Establishment Clause and the Challenge of Intelligent Design.^[5]  In the article, VanDyke discusses Beckwith’s view on intelligent design, and suggests that it can be taught in the classroom without violating the Establishment Clause, arguing that intelligent design should be treated as akin to empirical fact rather than treating it as a religion.  VanDyke’s view drew sharp criticism from commentators who noted that intelligent design relies on Biblical principles rather than empirically determined facts.^[6]

Additionally, while at Harvard, VanDyke authored a defense of Prof. Mary Ann Glendon, who had authored an editorial against gay marriage.^[7]  The post, written in 2004, argues that social science research from Scandinavia suggests that same-sex marriage hurts “families, and consequently children and society.”^[8]  He also notes that an expansion of rights for same-sex couples, including marriage, would infringe upon the rights of those with religious objections to such unions.^[9]

Political Activity

In 2014, VanDyke challenged incumbent Montana Supreme Court Justice Mike Wheat.  VanDyke resigned as Solicitor General shortly before his challenge to Wheat, noting that he had “disagreements with co-workers over his approach to the job.”^[10]  The campaign was heated, and VanDyke received a fair amount of criticism for his prior writings and speeches, particularly his views on intelligent design and on LGBT rights.^[11]  During the election, VanDyke sought the endorsement of the National Rifle Association, endorsing a broad view of gun rights and noting that he had avoided becoming a member of the NRA in order to avoid recusal issues in his office.^[12]  Wheat ultimately won the election by a comfortable margin.^[13]

ABA Controversy

As it has done for every judicial nominee since the Eisenhower Administration, the American Bar Association Standing Committee on the Federal Judiciary conducted a review of VanDyke’s record.  After reviewing his record and conducting around 60 interviews with colleagues, judges, and attorneys, the ABA rated VanDyke as “Not Qualified.”^[14]  In the letter, the ABA noted that some of the interviewees described VanDyke as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice.”^[15]  The ABA’s rating and letter has drawn criticism from Republicans who argue that the organization is biased against Trump nominees.^[16]  For his part, the criticism raised complaints from VanDyke himself who argued that he was not given adequate time to explain the criticisms during his interview.

Overall Assessment

Today, the Senate will vote on and likely confirm Lawrence VanDyke to the Ninth Circuit.  Ironically, in framing its criticism of VanDyke in unusually candid terms, the ABA has likely ensured that VanDyke will ultimately be confirmed by making themselves a bugbear.

Let us set out the obvious: VanDyke has the academic qualifications for an appellate seat.  Even the ABA does not dispute this point.  As such, the real question is whether VanDyke’s history suggests that he would be a fair and impartial judge on the Ninth Circuit.  Opponents will find plenty in VanDyke’s record to argue that he will not, including his history of advocacy for conservative causes, his writings, and his NRA questionnaire.  

As such, this confirmation, like so many before in this Administration, will come down to a vote of Republicans v. Democrats.  In this Senate, that means that Republicans win.

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