VanDyke nomination for 9th Circuit Court clears procedural vote

WASHINGTON — Controversial judicial nominee Lawrence VanDyke appeared headed for the 9th Circuit Court of Appeals on Tuesday after a narrow vote in the Senate cleared the way for confirmation of the former Nevada solicitor general despite stiff opposition.

The Senate voted 53-40 to end debate on the nomination and scheduled a confirmation vote for Wednesday for VanDyke, whose confirmation is opposed by Sens. Catherine Cortez Masto and Jacky Rosen, both Nevada Democrats.

President Donald Trump nominated VanDyke, who served as a Nevada solicitor general under former state Attorney General Adam Laxalt, without consulting Cortez Masto and Rosen.

The state’s two senators went to the Senate floor to denounce the nomination and urge colleagues to vote against confirmation of VanDyke, formerly from Texas and Montana and now living in Washington, where he works in the Justice Department.

Rosen noted that VanDyke was rated “not qualified” by the American Bar Association, and she cited his lack of long-term ties to the state.

“It’s unfortunate to see this chamber disregard Nevada’s voice and move forward with Mr. VanDyke’s nomination,” Rosen said.

“The state of Nevada has numerous qualified lawyers and judges who have done good work, have good reputations in our communities and are nonpartisan,” Rosen said.

‘Outside political operative’

Cortez Masto said the ABA interviewed 60 of VanDyke’s former colleagues who characterized him as “arrogant, lazy, an ideologue, and lacking in the knowledge of day-to-day practice including procedural rules.”

The senators called VanDyke an “outside political operative” and his selection by the president to the 9th Circuit a disservice to Nevada constituents.

But Judiciary Chairman Lindsey Graham, R-S.C., said during confirmation hearings that VanDyke was well qualified to serve on the appellate bench. Graham cited his background of Harvard Law School and service as an assistant solicitor general in Texas and solicitor general in Montana and Nevada.

In the House, Rep. Susie Lee, D-Nev., wrote a letter to Senate Majority Leader Mitch McConnell, R-Ky., and Senate Minority Leader Chuck Schumer, D-N.Y., saying VanDyke was unfit to hold a federal judgeship because of an extensive history of anti-gay and lesbian beliefs and legal decisions.

The letter was signed by 69 colleagues, including Reps. Dina Titus and Steven Horsford, both Nevada Democrats. Under the Constitution, however, only senators are given a vote on confirming judicial nominees.

50th appellate judge

Confirmation of VanDyke would be the 50th appellate court justice nominated by Trump and approved by the Senate, a record for a president this early in a term, said Carl Tobias, a University of Richmond School of Law professor and former founding faculty of UNLV William S. Boyd School of Law.

VanDyke would be the 10th Trump appointee on the San Francisco-based 9th Circuit Court of Appeals, replacing Judge Jay Bybee of Nevada, who was appointed by President George W. Bush.

Tobias said the controversy over the VanDyke appointment was well founded because of his lack of ties to the state as an appellate judge representing the people of Nevada.

“Does he understand the local legal culture and what is important for the state of Nevada?” Tobias asked. “My question is where is he going to establish chambers — in Winnemucca?”

During the confirmation hearing, VanDyke said he was surprised by the ABA rating and comments from colleagues. He broke down in tears as his family sat behind him.

Republicans offered up a defense, noting that the person who conducted the ABA questioning had ties to a political opponent of VanDyke when he ran unsuccessfully for the Montana Supreme Court.

VanDyke was hired by Laxalt after that loss and lived in Nevada, where he claimed residency for roughly four years.

Contact Gary Martin at gmartin@reviewjournal.com or 202-662-7390. Follow @garymartindc on Twitter.