VanDyke Unqualified Based on Activities in Montana and Beyond
Tell Your U.S. Senators to Vote “No” on His Confirmation
In late September 2019, President Donald Trump nominated Lawrence VanDyke to serve on the Ninth Circuit Court of Appeals, which covers a region that includes Montana. From his time in law school through his practice in both the private and public sectors, VanDyke’s history indicates problems with bias and serious questions about his ability to remain impartial and fair. When it comes to judicial nominees, his extremist Far-Right views aren’t considered credible by the majority of mainstream legal professionals.
Federal judges protect the Constitution and are supposed to act as a check on the legislative and executive branches. Our courts are supposed to be staffed with highly qualified judges who will safeguard the rights of all people and not just the wealthy or the privileged. VanDyke doesn’t fit the bill. During his short time as solicitor general in Montana, VanDyke used his position to get the State of Montana to participate in the Far Right’s culture war. One Montana journalist accurately described VanDyke’s time in the Montana Attorney General’s Office like this:
“While he was being paid with taxpayer money, he spent a good portion of his time sniffing out cases in other states where he could advance his own ideological goals on some of the most contentious issues of our times.”
While in law school, VanDyke wrote an article for the Harvard Law Review supporting the teaching of the anti-science idea known as “Intelligent Design” in public schools. The political movement known as the Religious Right and other Christian nationalists who want to eradicate the separation of the church and state started using the term Intelligent Design after the U.S. Supreme Court ruled that it was unconstitutional for public schools to teach biblical creationism. Rebranding it as Intelligent Design hasn’t been successful in convincing the courts. In 2005, a U.S. District Court in Pennsylvania declared that teaching Intelligent Design in science classes violates the separation of church and state, because its purpose is to “advance creationism.” This early writing of VanDyke’s prompts initial questions about his ability to uphold the separation of church and state, which is a fundamental tenant in the U.S. Constitution.
Intelligent Design wasn’t the only Religious Right belief VanDyke promoted while in law school. He also supported the dangerous practice called conversion therapy, which claims LGBTQ+ people can change their sexual orientation, often through ultra-conservative Christian counseling. The controversial and discredited practice is banned in some states. LGBTQ+ folks have benefited from a series of well-balanced federal court decisions that have advanced the rights of the LBTQ+ community. The nomination of VanDyke, and others with similar histories, put these advances towards equality at great risk.
VanDyke’s views haven’t improved since law school. In fact, he has used his career practicing law in Montana, Texas, and Nevada to continue pushing Far Right ideas. The following issue brief outlines a few of the reasons VanDyke should not be appointed to the Ninth Circuit Court of Appeals. MHRN encourages people to contact their U.S. Senators and tell them to vote “No” when the question of VanDyke’s confirmation comes to the Senate floor.
ABA Deems VanDyke “Not Qualified”
The American Bar Association (ABA), which is a professional association representing over 350,000 legal professionals, issued its rating of VanDyke in late October 2019. The rating was based on 60 interviews with people who had worked with VanDyke in four states; over 600 pages of publicly produced e-mails involving and/or written by him; and media reports involving VanDyke. Based on this analysis, the ABA deemed VanDyke “Not Qualified” to serve as a Ninth Circuit judge. The ABA recognized that VanDyke did have some professional accomplishments, however:
“Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules. There was a theme that the nominee lacks humility…does not have an open mind, and does not always have a commitment to being candid and truthful.
Some interviewees raised concerns about whether Mr. VanDyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community. Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”
Religious Right groups have quickly mobilized in support of VanDyke’s nomination. Those groups include the Family Research Council and the Liberty Counsel, both of which the Southern Poverty Law Center designates as hate groups. The political arm of Focus on the Family has chimed in as well. Many Religious Right groups have encouraged their followers to call on their senators to support VanDyke’s nomination.
Promoting the Federalist Society’s Dangerous “Originalism” Dogma
While working as solicitor general in 2013-2014 for Montana Attorney General Tim Fox, VanDyke frequently referenced his membership and activism with the Federalist Society. The group describes itself as comprised of “conservatives and libertarians” who believe the law profession is “dominated by a form of orthodox liberal ideology.” The Society touts that it has created a “conservative and libertarian intellectual network” that extends throughout the legal community.
Those descriptions only hint at the larger purpose of the Federalist Society, which has made its reputation pushing an idea called “originalism.” Originalism is a right-wing philosophy grounded in the belief that judges should interpret the Constitution based on what they believe the original authors intended. Judges following originalism have a propensity for taking very conservative views of issues, with former U.S. Supreme Court Justice Antonin Scalia generally used as an example. The Society seeks to stack the judicial system with judges who will weaken the federal government’s ability to act on behalf of the common good. President Trump has largely given staffers from the Federalist Society the job of picking his judicial nominees.
VanDyke has said his involvement with the Federalist Society started when he was in law school, and that he has served on a few of the group’s executive committees.
Culture Warrior with Amicus Briefs
During his time as solicitor general in Montana, VanDyke routinely encouraged Attorney General Fox to file amicus briefs in other states when litigation topics merged with his Far-Right interests. He repeatedly suggested Fox join amicus briefs supporting more access to violent weapons, discrimination against the LGBTQ+ community, and breaching the wall of church-state separation.
In 2013, Van Dyke recommended Fox be part of an amicus brief on behalf of Hobby Lobby’s lawsuit against the Affordable Care Act’s guarantee of contraception coverage. Hobby Lobby, a for-profit nationwide chain of arts and crafts stores, claimed it should be able to deny contraception coverage to its employees based on the founders’ evangelical Christian beliefs. In a split decision, the U.S. Supreme Court eventually ruled in favor of Hobby Lobby, meaning corporations gained religious rights while women gained another barrier to accessing contraception.
Many Religious Right groups hailed the ruling as upholding their version of “religious freedom,” which for them means allowing people and businesses to deny basic rights to people based on religious beliefs. Right-wing Christians, including the founders of Hobby Lobby, believe they should be able to ignore any policy with which they disagree and use the excuse that it violates their religious beliefs. This generally takes the form of denying services and civil rights to LGBTQ+ people and interfering with women’s reproductive health. Despite Hobby Lobby’s purpose being the sale of arts and crafts materials, VanDyke called Hobby Lobby a “quintessential ‘religious’ company” and made fun of Montanans who believe corporations don’t deserve individual rights.
Contraception wasn’t the only anti-choice issue VanDyke pushed while working for the State of Montana. He encouraged Attorney General Fox to submit an amicus brief in an Arizona case calling for reconsideration of the landmark Roe v. Wade decision. Additionally, when it came to Montana’s parental notification law, he corresponded with staffers at the Alliance Defending Freedom (ADF), a Religious Right law firm that is designated a hate group by the Southern Poverty Law Center. While working in private practice for a global firm specializing in large corporate clients, VanDyke did pro bono work for the ADF as well. While working in Montana, he interacted with other Religious Right groups both inside and outside the state, including with the Montana Family Foundation regarding a lawsuit dealing with disclaimers on campaign materials and attempts to further erode Montana’s campaign finance laws for transparency.
VanDyke also encouraged Attorney General Fox to engage around litigation denying rights to the LGBTQ+ community. He encouraged Fox to support a case seeking to let businesses deny their services to LGBTQ+ folks, because VanDyke supported the idea that business owners should be allowed refuse service based on the Religious Right’s discriminatory version of “religious freedom.” In one case involving a New Mexico photographer who refused service to a lesbian couple, VanDyke said the case could determine the “future of religious freedom in America.”
His support of the Montana Attorney General being part of amicus briefs for litigation in other states was clearly based on his own personal ideology and, often, not even on an understanding of the law. He encouraged Fox to sign onto one amicus dealing with a “buffer zone” law in another state. These laws are put in place to allow patients to access healthcare clinics without being harassed by anti-choice protestors. VanDyke initially encouraged Fox to sign on to opposing such buffer zones, while acknowledging he didn’t even know if Montana has such a provision (it does).
In a similar vein, he encouraged Fox to file an amicus brief in a gun rights case, because “we want to be on the record as on the side of gun rights (and the NRA).” Gun rights was a key issue VanDyke consistently pursued while in the Montana Attorney General Office. In discussing a brief, he claimed gun control laws aren’t “minimally rationale [sic].” VanDyke also joked about how semi-automatic weapons were fun to use elk hunting, lamenting that he didn’t have a fully automatic assault rifle. He complained that federal agencies had “unilaterally overridden” policies in “gun friendly and freedom friendly” states like Montana.
It’s clear that VanDyke used his time as solicitor general in Montana to get the state to participate in the Far Right’s culture war and brought about the journalist’s description of him quoted above as spending Montana taxpayer time on his own ideological agenda.
Co-Workers Question VanDyke’s Professionalism
E-mails released as part of a FOIA request from the Great Falls Tribune revealed that VanDyke’s co-workers complained about his work ethic and personality. Michael Black, Bureau Chief of the Civil Services Bureau at the Montana Department of Justice, wrote in an e-mail that Black wouldn’t let his “professional reputation” be “sullied by the brattish behavior of Mr. VanDyke.” In another e-mail, Black said VanDyke had been “arrogant and disrespectful” to others in the office since he had arrived, didn’t have the skills to perform the job, and didn’t have “the desire to learn how to perform the work of a lawyer.”
When VanDyke ran for the Montana Supreme Court shortly after leaving the Attorney General’s Office (see below for more info), Black actively spoke against his former co-worker. Setting politics aside, Black said his opposition was because VanDyke lacked “the maturity or the work ethic” to serve on the Montana Supreme Court. Black noted that VanDyke had asked to be taken off a case, because he didn’t have experience in matters such as discovery, dealing with experts, and conferring with opposing counsel. Black said VanDyke shouldn’t be on the Montana Supreme Court without these basic skills. Internal e-mails showed that Black wasn’t the only coworker and public servant who thought VanDyke lacked the skills to be an attorney and/or found his work ethic to be lacking.
The American Bar Association, in finding VanDyke “Not Qualified” to serve as a Ninth Circuit judge, echoed these themes, stating:
“Even though Mr. VanDyke is clearly smart, comments were made that in some oral arguments he missed issues fundamental to the analysis of the case. There were reports that his preparation and performance were lacking in some cases in which he did not have a particular personal or political interest.”
Far-Right Ideologue Runs for Montana Supreme Court
After leaving the Montana Attorney General’s Office, Lawrence VanDyke unsuccessfully ran for a seat on the Montana Supreme Court in 2014. The race became one of the most expensive in the Montana Court’s history, with over $1.5 million being spent.
VanDyke benefited from over $470,000 spent by the Republican State Leadership Committee, which was comprised mostly of corporate contributions. VanDyke also benefited from the support of the Koch-backed Americans for Prosperity, which spent $180,000 on two television ads attacking his opponent.
The Family Research Council helped raise money for VanDyke’s campaign at a PAC event held while the Values Voters Summit was happening in Washington D.C. The Summit is the largest annual gathering of the Religious Right every year. An announcement for the event said the group would be “showcasing a very important State Supreme Court candidate” in VanDyke. His victory, the Research Council said, would help with the Montana Supreme Court’s ideological composition when it came to issues like abortion, gun rights, LGBTQ+ rights, and stopping campaign finance reform.
VanDyke’s campaign finance reports showed that he received funds from activists working for many of the groups with which he consulted while working for the Montana Attorney General, including from the Liberty Institute and Alliance Defending Freedom. Current Montana U.S. House Rep. Greg Gianforte and his wife also contributed to his campaign. The Gianforte’s family charitable trust regularly funds Religious Right organizations.
Montana voters have consistently chosen Supreme Court Justices who are less partisan and have a history of unbiased legal experience. That trend remained in this race. VanDyke lost his race for Montana’s high court, receiving just 40% of the vote.
Fighting the Feds in Nevada, Joins Trump Administration
After losing his bid for the Montana Supreme Court, VanDyke was appointed solicitor general in Nevada in 2015. In that role, he continued his Far-Right pursuits. He helped establish a “Federalism Unit” to fight what he and his boss considered to be overreach by the federal government. The office opposed regulations by the EPA, BLM, and Department of Labor.
Following his time in Nevada, VanDyke took a position as the Deputy Assistant Attorney General in the Environment and Natural Resources Division of the U.S. Department of Justice. This is where he was serving when Trump nominated him for the Ninth Circuit.
Say No to VanDyke
Lawrence VanDyke doesn’t deserve to take his bad work ethic and dangerous culture war agenda to a position on the Ninth Circuit Court of Appeals. The big crocodile tears he generated during his confirmation hearing don’t change his history of encouraging conservative Christians to use “religious freedom” as a sword of discrimination against women and the LGBTQ+ community. They don’t make up for his efforts to tear down the wall of church-state separation or for his desire to put more guns on the streets of our communities. Instead of coming to the federal bench with an impartial perspective and honoring precedent, VanDyke has a specific agenda he would deploy.
MHRN strongly agrees with the American Bar Association that Lawrence VanDyke is “Not Qualified” to serve on the federal bench. We encourage you to contact U.S. Senators Steve Daines and Jon Tester and tell them to vote against confirming VanDyke.
U.S. Senator Steve Daines
U.S. Senator Jon Tester
(Alphabetical by source)
- American Bar Association
- Americans United
- Christian Science Monitor
- Family Research Council
- Federalist Society
- Focus on the Family
- Fox News
- Great Falls Tribune
- The Guardian
- Human Rights Campaign
- Independent Record
- Last Best News
- Liberty Counsel
- Los Angeles Times
- The Montana Post
- National Review
- Nevada Appeal
- Right Wing Watch
- Southern Poverty Law Center
- USA Today
- Washington Post