Michelle Pettit – Nominee to the U.S. District Court for the Southern District of California

The U.S. District Court for the Southern District of California is currently short five judges.  The Trump Administration and California’s Democratic senators have settled on a package of five nominees to fill the vacancies.  One of the Republican picks is national security prosecutor Michelle Pettit.


Pettit was born Michelle Elise Montgomery in Fredericksburg, VA in 1972.  Pettit attended the United States Naval Academy, getting a B.S. in 1994.[1]  She then spent five years in the Navy before getting her J.D. from Vanderbilt University Law School in 2001.[2]

After law school, Pettit joined the U.S. Navy Personnel Command as Assistant Legal Counsel.[3]  In 2007, she moved to the U.S. Navy Reserve as Senior Trial Counsel.[4]  In 2017, she became Chief Trial Judge in the Judiciary of the U.S. Navy and Marine Corps.

Simultaneously, since 2007, Pettit has been an Assistant United States Attorney based in San Diego.  

History of the Seat

Pettit has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on October 31, 2018, by Judge Michael Anello’s move to senior status.  In October 2017, Pettit inquired about district court vacancies with the Office of Legal Policy at the Department of Justice and interviewed with the White House Counsel’s Office.[5]

In 2018, Pettit interviewed with selection committees set up by California’s Democratic Senators Dianne Feinstein and Kamala Harri.[6]  Pettit was selected as a nominee on September 18, 2019 and was nominated on November 21, 2019.

Legal Experience

Over her legal career, Pettit has primarily served in legal roles in the U.S. Navy and the Naval Reserve, where, among other roles, she provided legal advice on confinement and detention, prosecuted Navy members for violations and crimes, and advised on terminations, ethics, and personnel matters.  Additionally, since 2007, she has worked on national security and cybercrimes issues as an Assistant U.S. Attorney.[7]  Throughout her career, Pettit has tried 25 cases to verdict, including 20 jury trials.[8] 

Among her more prominent cases, Pettit prosecuted five Mexican nationals for the killing of Border Patrol Agent Robert Rosas.[9]

In another matter, Pettit’s name emerged in connection with whether Navy Judge Advocate General James Crawford III had illegally interfered in Navy investigations and prosecutions.[10]  Specifically, Pettit was one of two lawyers emailed by Crawford’s subordinate Donald King, who asked about further prosecutions relating to the death of Navy Seal James Derek Lovelace.[11]  However, there are no allegations of wrongdoing connected with Pettit, who does not seem to have been involved in prosecutions relating to the death.

Judicial Experience

Since 2017, Pettit has been a Judge with the Navy-Marine Corps Trial Judiciary.  In that time, Pettit handled court-martial proceedings, specifically, one bench trial and three guilty pleas.[12]  Pettit has also served as an Appellate Judge with the Navy Reserve, where she reviewed Navy and Marine-Corps court-martial records.

Overall Assessment

In many ways, Pettit’s background is similar to that of fellow Southern District nominee Todd Robinson, who is also a federal prosecutor.  Such a background is fairly “safe” for federal judgeships, and, while she may face a few questions about the Lovelace case, Pettit is strongly favored to be confirmed to the federal bench.

[1] Sen. Comm. on the Judiciary, 116th Cong., Michelle Pettit: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] See id. at 2.

[4] See id. 

[5] Id. at 37-38.

[6] Id.

[7] Kristina Davis, Who Are the Five ATtorneys Trump Wants on San Diego’s Federal Bench?, San DIego Union-Tribune, Sept. 20, 2019.

[8] See Pettit, supra n. 1 at 25-26.

[9] Kristina Davis, Last of Border Agent’s Killers Sentenced, San Diego Union-Tribune, Mar. 20, 2014, https://www.sandiegouniontribune.com/sdut-border-patrol-agent-rosas-gonzales-sentence-2014mar20-story.html.

[10] Carl Prine, Top Navy Lawyer Accused of Interfering in 2 Cases, San Diego Union Tribune, Aug. 3, 2017.

[11] Id.

[12] See Pettit, supra n. 1 at 16.

John Holcomb – Nominee to the U.S. District Court for the Central District of California

An intellectual property lawyer based in Orange County, John Holcomb is one of several California nominees recommended by Democratic Senators and approved by the Administration.


John William Holcomb was born in Olean, NY in 1963.  Holcomb attended Massachusetts Institute of Technology, getting an S.B. in civil engineering in 1984.[1]  He then spent five years in the U.S. Navy.  He then received a J.D. and M.B.A. from Harvard in 1993.  While in law school, Holcomb worked as a Research Assistant for a visiting professor named Elizabeth Warren (now a U.S. Senator and Democratic presidential contender).[2]

After law school, Holcomb clerked for U.S. Bankruptcy Judge Ronald Barliant before joining Irell & Manella LLP in Newport Beach as an Associate.[3]  In 1997, he moved to Knobbe, Martens, Olson & Bear LLP.  He became a Partner with the firm in 2002.

In 2019, Holcomb joined Greenberg Gross LLP in Costa Mesa as a Partner, where he currently serves.[4] 

History of the Seat

Holcomb has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on January 28, 2016, by Judge Dean Pregerson’s move to senior status.  On December 16, 2015, President Obama nominated Paul Abrams, a U.S. Magistrate Judge on the Central District to fill this vacancy.  However, while Abrams received a hearing before the Senate Judiciary Committee on May 18, 2016, he was blocked from a confirmation vote by Senate Majority Leader Mitch McConnell.

Holcomb had broached his interest in a judicial appointment in October 2017 with the White House.[5]  He interviewed with selection committees set up by California’s Democratic Senators Dianne Feinstein and Kamala Harris in 2017 and 2018.[6]  In March 2019, Holcomb interviewed with the White House and was selected as a nominee in September 2019. Holcomb was nominated on November 21, 2019.

Legal Experience

Holcomb has spent virtually his entire career focusing on intellectual property law, and has tried five cases throughout his career, including two jury trials.[7]  Notably, Holcomb represented Jean Sprengel, a physician who sought copyright protections over her book, which provided advice to cancer patients.[8]  Holcomb represented Dr. Sprengel in a bench trial in front of Judge Michael Fitzgerald who held that Dr. Sprengel retained the sole right to create derivative works from the book.[9]

Political Activity

Holcomb’s political history is fairly mixed.  While Holcomb has been a member of the Federalist Society since 1992, his only political contribution of record is to Rep. Matt Cartwright, a Democrat from Pennsylvania.[10]

Overall Assessment

Holcomb’s history with intellectual property law and his relatively uncontroversial history should ensure a smooth confirmation and a relatively moderate presence on the Central District.

[1] Sen. Comm. on the Judiciary, 116th Cong., John Holcomb: Questionnaire for Judicial Nominees 1.

[2] Id. at 2-3.

[3] See id. at 2.

[4] See id. 

[5] See id. at 31.

[6] Id.

[7] Id. at 20.

[8] Sprengel v. Mohr, 2013 WL 645532 (C.D. Cal. 2013).

[9] Jason Frankovitz, Apple Patent Trial Goes to Jury: Why Fight When You Can License, TechZulu, Nov. 20, 2013.

Judge Steve Kim – Nominee to the U.S. District Court for the Central District of California

On October 8, 2017, Judge Beverly Reid O’Connell, a federal judge in Los Angeles, unexpectedly and tragically passed away after collapsing in a middle of a speech to the California State Bar.  Two years after Judge O’Connell’s passing, President Trump has nominated an apolitical magistrate judge to fill that vacancy.


Judge Steve Kim was born in Seoul, South Korea in 1972.  Kim got his B.A. from the University of Oklahoma in 1996, and a J.D. from Georgetown University Law Center in 1999.[1]  After graduating, Kim clerked for Judge Sidney Thomas on the U.S. Court of Appeals for the Ninth Circuit and for Judge Stephen Wilson on the U.S. District Court for the Central District of California before joining Munger Tolles Olson in Los Angeles as an Associate.[2]

In 2003, Kim joined the U.S. Attorney’s Office for the Central District of California as a federal prosecutor.[3]  In 2007, he joined Stroz Freidberg LLC.  In 2015, he left to found SK Advisory Services.

In 2016, Kim was selected as a U.S. Magistrate Judge for the U.S. District Court for the Central District of California.[4] 

History of the Seat

Kim has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on October 8, 2017 by the untimely death of Judge Beverly Reid O’Connell.

In November 2017, Kim applied and interviewed for a federal judgeship with selection committees set up by California’s Democratic Senators Dianne Feinstein and Kamala Harris.[5]  In February 2019, Kim interviewed with the White House and was selected as a nominee in September 2019.  Kim was nominated on November 21, 2019.

Legal Experience

Before he joined the federal bench, Kim worked both as a prosecutor handling criminal matters in federal court, and in private practice handling white collar, cybersecurity, and forensic issues.  Over his career, Kim has litigated eight trials, and has argued five cases before the U.S. Court of Appeals for the Ninth Circuit.

As a federal prosecutor, Kim argued before the Ninth Circuit that forensic searches of computers crossing the U.S. border did not require reasonable suspicion, a position adopted by the appellate court.[6]  He also handled the trial and appeal involving a real estate agent convicted of possession of cocaine with intent to distribute.[7] 


Since 2016, Kim has served as a U.S. Magistrate Judge in Los Angeles.  In this role, Kim presides over settlement, preliminary hearings, bail, and any cases where the parties consent to his jurisdiction.  By his estimation, Kim has presided over five bench trials over his judicial career.[8] 

Notably, Kim presided over the arraignment of Lori Loughlin, who was arrested for her role in fraudulently obtaining college admissions.[9]  Kim allowed Loughlin to be released on a bail of $1 million, although he prohibited her from international travel beyond Vancouver, Canada, where she was filming.[10]  Kim also presided over the bench trial of Robert Rosebrock, who was charged with displaying U.S. flags on the fence of a Veteran’s Affairs facility without permission.[11]  Kim acquitted Rosebrock, finding that the state had failed to provide evidence that Rosebrock lacked permission to display the flags.[12]

Overall Assessment

Judge Steve Kim was recommended for appointment by California’s Democratic senators and has been approved by the White House.  Additionally, given his apolitical background and relatively noncontroversial record, Kim should be confirmed relatively comfortably and will create a relatively moderate record on the district court.

[1] Sen. Comm. on the Judiciary, 116th Cong., Steve Kim: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] See id. 

[4] See id. 

[5] Id. at 46-47.

[6] See United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008).

[7] See United States v. Lloyd, No. 05-50300, 2006 WL 1737564 ((th Cir. June 22, 2006).

[8] See Kim, supra n. 1 at 9.

[9] Jonah Valdez, Actress Released on Bail of $1 M, Inland Valley Daily Bulletin, Mar. 14, 2019.

[10] See id.

[11] U.S. Army Veteran Acquitted of Illegally Displaying Flags at Los Angeles Veterans Affairs Facility, City News Service, Apr. 18, 2017.

[12] See id.

Todd Robinson – Nominee to the U.S. District Court for the Southern District of California

The U.S. District Court for the Southern District of California is currently short five judges.  The Trump Administration and California’s Democratic senators have settled on a package of five nominees to fill the vacancies.  One of the Republican picks is longtime prosecutor and Federalist Society member Todd Robinson.


Todd Wallace Robinson was born in Jacksonville, FL in 1967.  Robinson attended the University of California, Berkeley, getting his B.A. in 1989.[1]  He then received a J.D. magna cum laude from the Georgetown University Law Center in 1993.[2]

After law school, Robinson joined the U.S. Department of Justice as a trial attorney.[3]  In 1997, he moved to the U.S. Attorney’s Office for the Southern District of California, where he has stayed since, barring a short stint with the Central Intelligence Agency.[4] 

History of the Seat

Robinson has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on September 30, 2016, by Judge Marilyn Huff’s move to senior status.  As the seat opened with around four months left in the Obama Administration, they did not put forward a nomination to fill the seat.

In January 2017, Robinson broached his interest in the vacancy with Congressman Darrell Issa (R-CA).[5]  He interviewed with Issa in January 2018 and then with selection committees set up by California’s Democratic Senators Dianne Feinstein and Kamala Harris in late 2018.[6]  In March 2019, Robinson interviewed with the White House and then again with Feinstein’s office in August 2019 before his nomination on November 21, 2019.

Legal Experience

Robinson has spent virtually his entire career as a federal prosecutor, where he has handled a number of high profile immigration, terrorism, and narcotics cases.  Notably, Robinson led the racketeering prosecution against the Mexican Mafia prison gang, using organized crime laws to target gang activity.[7]  Under his leadership, the Office used the Racketeer Influenced and Corrupt Organizations Act (RICO), which was tailored to target organized crime, against gang and drug crime, indicting over 200 defendants, including members of the Arellano Felix drug cartel and the North Park gang.[8]

In another significant matter, Robinson led the prosecution of three Pakistani nationals who sought to purchase Stinger missiles in an effort to target U.S. aircraft in Afghanistan.[9]

Overall Assessment

Handling a heavy caseload of drugs, guns, immigration, and terrorism cases, Robinson  possesses the familiarity with the criminal half of his likely docket on the Southern District.  While some senators may question Robinson’s comparative lack of experience on the civil side, this should pose little threat to his nomination.  

If confirmed, Robinson’s background is likely to make him a conservative presence on the Southern District, particularly on criminal issues.  As such, he may follow in the mold of Chief Judge Larry Burns, another longtime federal prosecutor.

[1] Sen. Comm. on the Judiciary, 116th Cong., Todd Robinson: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] See id. at 2.

[4] See id. 

[5] See id. at 53.

[6] Id.

[7] Onell R. Soto, 36 Indicted in Mexican Mafia Crackdown, Copley News Service, June 17, 2006.

[8] Kristina Davis, RICO LAW NOT JUST FOR MOBSTERS: Federal Tool Used in North Park Gangs Roundup Last Week, San Diego Union-Tribune, Jan. 13, 2004.

[9] United States v. Syed Shah, et al., 02CR2012-L (S.D. Cal.).

Judge Fernando Aenlle-Rocha – Nominee to the U.S. District Court for the Central District of California

Judge Fernando Aenlle-Rocha, who currently serves on the Los Angeles Superior Court,  comes to the federal bench with extensive experience in litigation, and will likely be fairly uncontroversial.


Fernando Lazaro Aenlle-Rocha was born in Havana, Cuba in 1961.  Aenlle-Rocha got an A.B. from Princeton University in 1983, and a J.D. from U.C. Berkley School of Law in 1986.[1]  After graduating, Aenlle-Rocha joined the Los Angeles County District Attorney’s Office as a Deputy District Attorney.[2]

In 1990, Aenlle-Rocha joined the U.S. Attorney’s Office for the Southern District of Florida as a federal prosecutor.  In 1994, he moved to the U.S. Attorney’s Office for Central District of California.[3]  In 1999, he joined Stephan , Oringher, Richmand & Theodora PC and then moved to the Los Angeles office of McDermott, Will & Emery in 2000.  He became a Partner at White & Case in 2005.

In 2017, Aenlle-Rocha was named by Gov. Jerry Brown to the Los Angeles Superior Court, where he currently serves.[4] 

History of the Seat

Aenlle-Rocha has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on December 30, 2018, by Judge S. James Otero.

In May 2017, Aenlle-Rocha applied and interviewed for a federal judgeship with selection committees set up by California’s Democratic Senators Dianne Feinstein and Kamala Harris.[5]  In February 2019, Aenlle-Rocha interviewed with the White House and was selected as a nominee in August 2019.  Aenlle-Rocha was nominated on October 17, 2019.

Legal Experience

Aenlle-Rocha has worked both as a state and federal prosecutor and in private practice, where he primarily handled white-collar criminal defense.  As such, he has extensive experience with the criminal justice system.  Over the course of his career, Aenlle-Rocha tried 37 jury trials and four bench trials.  

As a federal prosecutor, Aenlle-Rocha prosecuted Todd McCormick, an activist for legalized marijuana.[6]  He also prosecuted Peter McWilliams, who argued that he used marijuana to treat his medical issues.[7]  During the prosecution of McWilliams, Aenlle-Rocha opposed requests for McWilliams to smoke marijuana as a part of his treatment.[8]  The stance of Aenlle-Rocha and the federal government was criticized by others who argued that it lacked compassion.[9]

In private practice, Aenlle-Rocha largely handled white collar criminal defense and complex civil litigation.  However, in a pro bono capacity, Aenlle-Rocha also represented a philanthropic group seeking to stop the sale of a home for the elderly.[10]


Since 2017, Aenlle-Rocha has served as a judge on the Los Angeles Superior Court.  In this role, Aenlle-Rocha presides over trial court matters in criminal, civil, family, and other state law matters.  By his estimation, Aenlle-Rocha has presided over around 38 trials in his judicial career.[11]  Aenlle-Rocha has presided over both the criminal and civil dockets on the court, including cases involving child abuse,[12] drugs,[13] and domestic violence.[14] 

Political Activity

Despite having been appointed to the state bench by a Democratic Governor, Aenlle-Rocha is a registered Republican.[15]

Overall Assessment

Aenlle-Rocha’s record overall is fairly uncontroversial, with few hot-button issues implicated in his rulings.  Furthermore, as he is a Republican who was suggested and recommended for the federal bench by California’s Democratic senators, his confirmation process should be fairly smooth.

[1] Sen. Comm. on the Judiciary, 116th Cong., Fernando Aenlle-Rocha: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] See id. 

[4] See id. 

[5] Id. at 46-47.

[6] David Houston, Marijuana Mansion, City News Service, Apr. 27, 1998.

[7] See David Houston, Medical Marijuana, City News Service, July 27, 1998.

[8] David Houston, Pot Politics, City News Service, Feb. 26, 1999.

[9] Doug Bandow, Punishing the Sick, Copley News Service, Jan. 18, 2000.

[10] National Charity League, Inc., Glendale Chapter, et al. v. Jack W. Anderson et al., Case No. E061333.

[11] See Aenlle-Rocha, supra n. 1 at 14.

[12] People v. Gomez, No. 5AV07341 (L.A. Sup. Ct.).

[13] People v. Ayala, No. MA069885 (L.A. Sup. Ct.).

[14] People v. Alvarez, No. 6AN01213 (L.A. Sup. Ct.).

[15] Press Release, Office of Gov. Edmund G. Brown, Governor Brown Appoints Nine to Los Angeles Superior Court, May 22, 2017 (available at https://www.ca.gov/archive/gov39/2017/05/22/news19797/index.html).

Joshua Kindred – Nominee to the U.S. District Court for the District of Alaska

Last year, the nomination of Jon Katchen to the federal bench in Alaska failed amidst opposition from Alaskan lawyers regarding Katchen’s relative inexperience.  The Trump Administration has responded by nominating an even younger lawyer with less experience.  This time, with a broader Senate majority, Republicans look to push through Joshua Kindred to the Alaska federal bench.


        Joshua Michael Kindred was born in Goldsboro, North Carolina in 1977.[1]  He earned his B.A. from the University of Alaska at Anchorage in 1999 and his J.D. from the Willamette School of Law in 2005.[2]  He  clerked for Chief Justice Paul Demuniz on the Oregon Supreme Court before joining Lane Powell LLC in Anchorage as an associate.[3] 

In 2008, Kindred became a state prosecutor in Anchorage, a role which he held for five years.  In 2013, Kindred became Environmental Counsel at the Alaska Oil and Gas Associate, where he worked on both litigation and government relations on behalf of the Association.[4]  In 2018, he joined the U.S. Department of the Interior’s Office of the Regional Solicitor, where he currently serves.

History of the Seat 

        Katchen has been nominated to a vacancy on the U.S. District Court for the District of Alaska.  The vacancy opened with Judge Ralph Beistline’s move to senior status on December 31, 2015.  No nomination was put forward to the vacancy during the Obama Administration.

The Trump Administration initially nominated Jon Katchen, an Anchorage based attorney who was one of five candidates recommended by Alaska Senators Lisa Murkowski and Dan Sullivan.[5]  Katchen’s nomination drew sharp criticism from Alaskan attorneys, with Alaska Superior Court Judge Elaine Andrews, who presided over Alaska’s Anchorage courts, noting: “We should be taking the very best we have, and he may be decent, he may be very good, but he’s not the best we have.”[6]  Katchen ranked 13th out of 20 applicants on the Alaska Bar Association poll, with 31 percent rating him “extremely qualified” or “well qualified,” compared to 66 percent who gave those ratings to the top applicant, Eric Aarseth, a highly rated state judge since 2005.[7]  For whatever reason, Katchen never received a hearing, instead withdrawing his nomination on August 28, 2018.[8]

In August 2019, Kindred was contacted by Sullivan to gauge his interest in a federal judgeship.[9]  Kindred was selected as a nominee in August 2019 and was nominated on November 21, 2019.

Legal Career

Kindred’s legal experience largely derives from two positions, his time as an Assistant District Attorney in Anchorage, and his time with the Alaska Oil and Gas Association.

In the former role, Kindred was responsible for litigating misdemeanors and felonies in Alaska state court.  During this time, Kindred tried around 40 jury trials to verdict.[10]  In one of his most prominent trials, Kindred tried a defendant for First Degree Murder, seeking to get around the defendant’s self-defense argument.[11]  The case ended with an acquittal on the Murder charge, albeit with a conviction on a lesser Manslaughter charge.[12] 

In the latter role, Kindred participated in regulatory rulemaking processes, including commenting on proposed regulations of the Alaska oil and gas industries.  For example, in 2015, Kindred testified before the Senate Committee in favor of further oil and gas development under the Alaska National Interest Lands Conservation Act (ANILCA).[13]  He also opposed potential state regulations on fracking, arguing that the regulations are “unnecessary” and “provide delays and increased costs.[14]                  

Overall Assessment

        In 2018, Katchen’s nomination faced sharp criticism on the grounds that he was rated 13th out of 20 applicants before the Alaska Bar Association.  Today, Kindred has been nominated for the position despite having an even worse rating of 16th.[15]  Comparatively, while only 31% of respondents rated Katchen as Extremely Qualified or Well Qualified for a federal judgment, only 15% similarly rated Kindred.  As such, the same criticisms of youth and inexperience that dogged Katchen could be applied to Kindred.

        That being said, unlike Katchen, Kindred does have some experience with criminal law, including extensive experience litigating before juries.  Additionally, Kindred’s supporters will argue that his experience with the oil and gas industry is uniquely suited to Alaska.  In contrast, opponents will question Kindred’s commitment to enforcing environmental laws fairly.[16] 

        Overall, it is likely that Alaska Senators are tired of the extended vacancy on their courts.  While the Trump Administration could have picked a more experienced candidate, Kindred will be approved as long as senators find that he meets the minimum threshold to be a district court judge.

[1] Sen. Comm. on the Judiciary, 116th Cong., Questionnaire for Judicial Nominees: Joshua Kindred 1.

[2] Id.

[3]Id. at 2.

[4] Id. at 14.

[5]Charles Wohlforth, How Connections Trumped Qualifications to be Alaska’s New Federal Judge, Anchorage Daily News, Apr. 24, 2018, https://www.adn.com/opinions/2018/04/24/how-connections-trumped-qualifications-to-be-alaskas-new-federal-judge/.  



[8] Erica Martinson, Anchorage Attorney, Nominated By Trump, Withdraws From Federal Judgeship, Anchorage Daily News, Aug. 28, 2018, https://www.adn.com/politics/2018/08/28/anchorage-attorney-nominated-by-trump-withdraws-from-federal-judgeship/.  

[9]  See Kindred, supra n. 1 at 26.

[10]See id. at 15-16.

[11]See State of Alaska v. Josiah Darroux, 3AN-07-05280 CR (Alaska Super. Ct.).

[12] Id.

[13] See Testimony of Joshua Kindred, Sen. Comm. on Energy and Natural Resources, as reported by CQ Congressional Testimony, Dec. 3, 2015.

[14] Alaska Fracking Projects Could Get New Comment Period, A.P. State & Local, Jan. 27, 2017.

[15] See Alaska Bar Association Poll Results, https://s3-us-west-2.amazonaws.com/ktoo/2019/12/2017-Results-4.pdf (last visited Dec. 13, 2019).

[16] See, e.g., Kindred Won’t Protect Alaska’s Environment, States News Service, Dec. 3, 2019.

Lawrence VanDyke – Nominee to the U.S. Court of Appeals for the Ninth Circuit

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


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]


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.

[1] Sen. Comm. on the Judiciary, 116th Cong., Questionnaire for Judicial Nominees: Lawrence VanDyke 1.

[2] Id. at 2.

[3] Id.

[4] Nevada v. U.S. Dep’t of Labor, 275 F. Supp. 3d 795 (E.D. Tex. 2017).

[5] Lawrence VanDyke, Not Your Daddy’s Fundamentalism: Intelligent Design in the Classroom, 117 Harv. L. Rev. 964 (2004).

[6] See Don Pogreba, A Creationist for the Montana Supreme Court? A Review of Lawrence VanDyke, The Montana Post, March 17, 2014, https://themontanapost.com/blog/2014/03/17/a-creationist-for-the-montana-supreme-court-a-review-of-lawrence-vandyke/.  

[7] Lawrence VanDyke, One Student’s Response to “A Response to Glendon”, Harvard Law Record, Mar. 11, 2004, http://hlrecord.org/one-students-response-to-a-response-to-glendon/.  

[8] See id.

[9] Id.

[10] Anthony Johnstone, A Past and Future of Judicial Elections: The Case of Montana, 16 J. App. Prac. & Process 47, 96 (Spring 2015).

[11] See John D. Echeverria, State Judicial Elections and Environmental Law: Case Studies of Montana, North Carolina, Washington, and Wisconsin, 16 Vt. J. Envr. L. 363, 365-66 (Spring 2015).

[12] See Lawrence Van Dyke, Questionnaire for the National Rifle Association, https://www.judiciary.senate.gov/imo/media/doc/VanDyke%20-%20NRA%20Questionnaire.pdf.  

[13] See id.

[14] See Letter from William C. Hubbard, https://src.bna.com/Msq.  

[15] Id.

[16] See Madison Adler and Melissa Heelan Stanzione, Judicial Ratings Draw Ire of Left, Right After Tearful Hearing, Bloomberg Law, Nov. 6, 2019, https://news.bloomberglaw.com/us-law-week/judicial-ratings-draw-ire-of-left-right-after-tearful-hearing.