Thursday October 31st, 2019

Cortez Masto Delivers Floor Remarks Opposing Appeals Court Nominee

VanDyke Nomination Floor Speech

Washington, D.C. – U.S. Senator Catherine Cortez Masto (D-Nev.) delivered remarks on the Senate floor on the nomination of Lawrence VanDyke to the United States Court of Appeals for the Ninth Circuit. Senator Cortez Masto discussed her concerns about Mr. VanDyke’s lack of ties to Nevada, record of ideological legal work, and abysmal rating from the American Bar Association. Senator Jacky Rosen (D-Nev.) also gave remarks opposing Mr. VanDyke’s nomination.

Below are her remarks as prepared for delivery. You may download video of the speech HERE.

I rise today in opposition to the nomination of Lawrence VanDyke to serve on the United States Court of Appeals for the Ninth Circuit.

Mr. VanDyke fits neatly into this Administration’s pattern of picking federal judges for our circuit Courts of Appeals without meaningful input from home state Senators.

The President continues to select ideologically extreme nominees like Mr. VanDyke.

And the White House is putting forward people without enough experience for the momentous roles they have been chosen to serve.

Mr. VanDyke has been nominated to fill a Nevada seat on the Ninth Circuit, even though he’s not a Nevadan.

He didn’t grow up in my state; he doesn’t appear to own property there; he doesn’t seem to have family ties; and he was only an active member of the Nevada State Bar for two years.

Senator Rosen and I engaged with the White House to put forward highly respected Nevadans with bipartisan support, but our suggestions were summarily ignored because the White House was laser-focused on Mr. VanDyke.

I want to be clear: the Administration did not meaningfully consult about this nomination with Nevada’s Senators. And the result is a poor nominee.

First and foremost, I’m extremely concerned about the effect Lawrence VanDyke’s lifetime appointment would have on women’s reproductive rights in America.

As Montana Solicitor General, Mr. VanDyke supported an Arizona abortion ban. In an amicus brief in Horne v Isaacson, he contended that the constitutional right to choose should be “revisited”.  

He also defended a Montana law that made it harder for young women in that state to seek an abortion.

And he advocated for letting corporations sidestep their obligations to provide insurance coverage for contraception.

Based on this record, I fear that as a federal judge, Mr. VanDyke would limit women’s health choices in Nevada and throughout the country, including their access to birth control. 

His record on LGBTQ rights is also dismal. Mr. VanDyke has ties to two ideologically extreme, anti-LGBTQ groups that the Southern Poverty Law Center has designated as hate groups: the Alliance Defending Freedom and the Family Research Council.

These ties are hardly surprising, given that Mr. VanDyke has opposed gay rights since law school, when he wrote an article for the Harvard Law Record that promoted the myth that same-sex marriage would hurt “families . . . children and society.”

As Solicitor General of Montana, he also strongly criticized LGBTQ antidiscrimination laws and worked to carve out religious exemptions to them.

When signing Montana onto an amicus brief arguing a photography company could refuse to photograph a same-sex wedding, Mr. VanDyke described the case—Elane Photography v. Willock—as important because it would establish that “gay rights cannot always trump religious liberty.”

Throughout his career, he’s weakened environmental protections and standards.

Mr. Van Dyke has argued in favor of fossil fuel drilling and supported reviving the Keystone Pipeline, ignoring the voices of conservationists and Native communities.

His actions do not protect our air and water, nor recognize the impacts of climate change, nor safeguard endangered species, including the iconic sagegrouse.

In fact, as Solicitor General of Nevada, Mr. VanDyke challenged the Republican Governor he served. He actively worked against Governor Brian Sandoval’s bipartisan agreement to protect my state’s native species. Mr. VanDyke’s opposition to land use restrictions to protect sage grouse was so extreme that Governor Sandoval said Mr. VanDyke’s position “did not represent the state of Nevada, the governor, or any state agencies.”

With that background, he should not sit on a court with jurisdiction over the West, home to nearly 75 percent of public lands in the nation.

In the areas of reproductive rights, LGBTQ protections, and environment, Mr. VanDyke’s nomination is so troubling because it’s clear that he puts his ideology above the law. This vacancy should be filled with a judge that will apply the law to the facts in an unbiased way, something that Mr. VanDyke has proven unwilling to do.

Finally, Mr. VanDyke’s professional qualifications are simply insufficient. He has very little trial and litigation experience.

When he served as Montana Solicitor General, his colleagues raised serious concerns about his work ethic and legal skills. And when he ran for the Montana State Supreme Court, six retired judges of that court described him as “unqualified.”

As you heard at the confirmation hearings yesterday, the American Bar Association, which provides ratings for judicial nominees, gave him a rating of “Not Qualified.”

That’s worth repeating: the ABA spoke with 60 lawyers and judges across four states and concluded he wasn’t suitable for a position as a judge on the court of appeals. The people with the objections are his former colleagues!

As far as records show, not a single federal judicial nominee has been appointed to the federal bench who was lacking both a “Qualified” or “Well Qualified” ABA rating and the approval of that nominee’s home state senators.

If confirmed, Mr. VanDyke would be the very first federal judge who was judged “Not Qualified” and whose blue slips were not returned. That’s not a precedent this chamber should be proud of.

The 9th Circuit Court of Appeals is the last stop for cases that affect Nevada before they reach the Supreme Court. It’s vital that 9th Circuit nominees know the state of Nevada and its issues.

This nominee lived in the Silver State for a total of four years before moving to Washington to work at the Department of Justice, where he is currently.

Now, in Nevada, we welcome newcomers—but usually they stay in our communities. Mr. VanDyke didn’t. Rather than continue to serve Nevadans, he left for a plum job in Washington and is now lobbying for a lifetime appointment on the federal bench.

This isn’t someone who serves the needs of Nevadans. This isn’t someone who knows Nevada or its issues. This is a career political operative who is looking for a guaranteed paycheck.

For all these reasons, I do not believe that Lawrence VanDyke deserves a lifetime appointment to one of the highest courts in the land, which handles 70,000 critical cases each year.

He’s not the right person in whose hands to leave Americans’ reproductive freedom, their fundamental civil rights, and their claim to a clean and healthy environment. 



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