WASHINGTON — The Senate has confirmed a top Justice Department lawyer as a federal appeals court judge despite a “not qualified” rating from the American Bar Association and sharp opposition from his home-state senators.
Lawrence VanDyke, a deputy assistant attorney general and former high-ranking Nevada legal official, won a seat Wednesday on the San Francisco-based 9th U.S. Circuit Court of Appeals, which covers a wide swath of Western states from Alaska to Arizona. The vote was 51-44.
Among those opposing VanDyke were Nevada Democratic Sens. Jacky Rosen and Catherine Cortez Masto, who said that despite serving four years as Nevada's solicitor general, VanDyke's qualifications are inadequate and his ties to Nevada “minimal.''
VanDyke, 47, served as solicitor general in Montana and assistant solicitor general in Texas before moving to Nevada in 2015.
VanDyke's confirmation comes a day after the Senate confirmed California prosecutor Patrick Bumatay to a separate seat on the 9th Circuit Court of Appeals, despite opposition by the state's two senators. Bumatay was confirmed Tuesday, 53-40.
Montana Sen. Jon Tester, a Democrat, was a vocal opponent of VanDyke’s nomination, underscoring his lack of judicial experience and past comments on same-sex partners and abortion.
“The fact is that we cannot trust Mr. VanDyke to put aside his past positions, to give everyone that comes before his court a fair shake, to be fair and impartial,” Tester said.
Tester said Wednesday there was “absolutely no reason we can’t find someone better suited to this position” than VanDyke.
In contrast, Republican Sen. Steve Daines said he fully supported VanDyke’s nomination and was an easy ‘yes’ vote, calling VanDyke “beyond qualified.”
Daines said both confirmations would provide a needed check on the “liberal activist judges on the Ninth Circuit,” slamming rulings on forest management projects and energy projects like the Keystone Pipeline.
“This week’s votes are a step forward to cleaning up the Ninth Circuit and Daines will continue voting to confirm Trump-appointed judges that respect our rule of law and uphold the Constitution!” read a press release from Daines’ office.
Sen. Dianne Feinstein, D-Calif., criticized both newly confirmed judges, saying Bumatay and VanDyke were unqualified. Bumatay acknowledged working on the Trump administration's policy of separating familes at the U.S.-Mexico border, Feinstein said, while VanDyke has taken “extreme positions” on a range of issues.
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In a floor speech, Cortez Masto said President Donald Trump's nomination of VanDyke "sets a dangerous precedent for the Senate and would allow future administrations to nominate virtual outsiders to communities across the country over senators’ objections.''
She and Rosen called VanDyke an extreme partisan and said he has a record of using cases to advance an ideological agenda. Liberal groups have criticized VanDyke as a zealot who opposes gun regulations and poses a threat to women and the LGBT community.
Democrats and other critics cited a letter from the American Bar Association rating VanDyke “not qualified” and calling him “arrogant, lazy, an ideologue and lacking in knowledge of the day-to-day practice including procedural rules.''
The Giffords Law Center, a gun safety group, decried VanDyke's “uniquely troublesome record" and said his "legally unsupported views on gun policy ... disqualify him for a life-tenured seat on the federal bench.''
The Alliance for Justice, a liberal advocacy group, said VanDyke has "repeatedly attacked the rights of women,'' including support for an Arizona anti-abortion law and opposition to contraceptive coverage mandated by the Affordable Care Act.
VanDyke also has expressed concerns about gay parenting and same-sex marriage.
Carrie Severino, policy director of the Judicial Crisis Network, a conservative advocacy group, called VanDyke a victim of a “left-wing smear campaign.''
Severino, a classmate of VanDyke at Harvard Law School, said in a statement that “you couldn’t ask for a better lawyer or a man of more exemplary character" than VanDyke.
“With deep roots in the West, Lawrence is very familiar with the challenges faced by states in the 9th 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" Environmental Protection Agency, Severino said.
She and other supporters said the ABA's negative rating of VanDyke was just the latest example of the group's leftward tilt. "The ABA has lost its credibility as a neutral arbiter. It should be treated no differently than any other special interest group,'' said Sen. Mike Lee, R-Utah.
The VanDyke and Bumatay nominations continue a trend in which Trump has ignored opposition from home-state Democrats to nominate conservative lawyers to the bench. Presidents typically consult with home-state senators before announcing judicial appointments, a practice Trump has abandoned.
VanDyke served as a Nevada solicitor general for four years before joining the Justice Department's environment and natural resources division earlier this year.
A Texas native, VanDyke graduated from Montana State University and ran unsuccessfully for the Montana Supreme Court in 2014. A member of the conservative Federalist Society, VanDyke supports Trump's efforts to expand oil and gas exploration on public lands.
Bumatay, 41, has served in a variety of positions at the Justice Department, most recently as assistant U.S. Attorney for the Southern District of California.