‘Not Qualified’ Nominee for Ninth Circuit Likely To Be Confirmed

Lawrence VanDyke is poised for confirmation to the nation’s largest federal appeals court despite an American Bar Association assessment finding him unqualified and potentially unsupportive of LGBT rights.

The Senate will consider confirming him as early as Dec. 11 after it voted along party lines to invoke cloture, or limit debate, on his nomination that also has been criticized over his legal stance on environmental issues while an attorney representing state governments and the Trump administration.

If confirmed to the U.S. Court of Appeals for the Ninth Circuit, VanDyke would be the 50th appeals court judge appointed by Trump, which is more than a quarter of appellate seats.

Trump has made good on his 2016 campaign promise to reshape the judiciary with conservatives by appointing 171 judges to federal district and appellate courts. That tally includes Brett Kavanaugh and Neil Gorsuch to the Supreme Court. He hopes to appoint a dozen more before year’s end, including another to the Eleventh Circuit.

Democrats, frustrated by the inability to halt confirmation of nominees they deem inexperienced or too ideological, have lashed out at a number of Trump judicial picks, especially the nine deemed unqualified by the ABA.

VanDyke’s involvement in political issues as a solicitor general in two states and as an assistant in another, as well as his role as a Justice Department attorney suggest he wouldn’t be even-handed with certain groups or on certain matters, Democrats and progressive interests said.

His supporters pushed back. They said he’s only done his job representing the interests of government, and he said that he couldn’t always choose his cases.

VanDyke has “done an excellent job defending the interests of the states that he’s represented,” said Carrie Severino, the chief counsel and policy director of the conservative judicial advocacy group Judicial Crisis Network. “That’s exactly what a lawyer should be doing.”

‘Not Qualified’ Storm

The political firestorm prior to his confirmation hearing, however, was triggered by the ABA’s evaluation of him as unqualified for the lifetime appointment.

A majority of the the ABA committee that reviews nominees found that he lacked the requisite skills to sit as an appellate judge. VanDyke’s peers called him “lazy, arrogant” and “an ideologue,” and raised concerns that he wouldn’t be able to treat members of the LGBT community fairly, William Hubbard, chairman of the ABA Standing Committee on the Federal Judiciary, said in a letter to the Senate Judiciary Committee.

“There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful,” Hubbard said.

The letter set off a fight over VanDyke’s record at the hearing that brought him to tears. VanDyke said he was “much more hurt than I’ve ever been to get that” review, and said it wasn’t reflective of him. On questions about his fairness to the LBGT community, VanDyke said he believes all people are “created in the image of God” and should be treated with “dignity and respect.”

Republican allies dismissed the ABA conclusions as liberal bias even though nearly all Trump judicial appointees have received favorable ratings from the group. They cited his experience as a former Gibson Dunn & Crutcher associate, his clerkship on the D.C. Circuit, and his government service as more than qualifying.

Severino said the ABA report “is clearly, utterly bankrupt. It’s very clear that this was a biased process.”

Environmental Record

VanDyke’s extensive record on energy and pollution-related cases also has raised red flags among environmental groups.

As solicitor general of Nevada, VanDyke helped fight the Obama administration’s signature climate regulation, the Clean Power Plan, and an EPA regulation addressing federal water protections.

He clashed with fellow Republicans in 2015 when he and then-Attorney General Adam Laxalt, a Republican, led the Silver State into a federal lawsuit challenging protections for the sage grouse. Then-Gov. Brian Sandoval, a Republican, condemned the lawsuit for potentially undermining a multistate and federal effort to prevent the iconic Western bird from being classified as endangered.

While solicitor general of Montana, he opposed an EPA policy designed to enhance federal oversight of coal mines. In a failed Montana Supreme Court run, campaign boosters vowed the candidate would protect jobs from “environmental extremists.”

In his latest role as deputy assistant attorney general in the Justice Department’s Environment and Natural Resources Division, VanDyke has been involved in litigation involving oil and gas development near New Mexico’s prized Chaco Canyon region, royalty rates for federal fossil fuels, and the Trump administration’s rollback of safety rules for offshore drilling.

“It’s hard for any group representing environmental interests to feel like they’re going to get a fair case in front of him, based on his clear one-sided history,” said Benjamin Driscoll, director of the judiciary program at the League of Conservation Voters.

The Ninth Circuit hears a heavy load of environmental cases, including disputes over oil and gas permitting, chemical regulation, climate change, and endangered species.

One example is a high-profile lawsuit from a group of young plaintiffs accusing the federal government of violating their right to a safe climate. Driscoll noted that VanDyke could end up involved in the so-called kids’ climate case if the court rehears the case en banc after a panel decision.

Other big environmental cases expected to work their way up to the Ninth Circuit include litigation over the Trump administration’s divisive update to Endangered Species Act regulations and its rollback of federal restrictions on methane emissions from the oil and gas industry.

If confirmed, VanDyke is expected to sit out appellate cases he worked on at the Justice Department or in other roles. Driscoll said the League of Conservation Voters would watch closely to ensure VanDyke complies with judicial recusal requirements.

Expected Actions

VanDyke supporters again touted his qualifications and his work defending the interests of states that he’s represented.

Jonathan H. Adler, head of the environmental law program at Case Western Reserve University, pushed back on the criticism linked to VanDyke’s work as solicitor general in Montana and Nevada, a position that reports to the attorney general in both states.

“If the argument is he took positions when he was working for a Republican attorney general that you’d expect a Republican attorney general to take—yeah, of course he did,” Adler said.

“We should expect a president to nominate folks that generally have the judicial philosophy that that president is looking for,” he added.

Pacific Legal Foundation attorney Glenn E. Roper, who served as deputy solicitor general in Colorado while VanDyke was in Nevada, said the nominee took “very mainstream conservative approaches to challenging executive overreach.”