The Senate confirmed Lawrence VanDyke to a lifetime appointment on the 9th U.S. Circuit Court of Appeals on Wednesday by a vote of 51–44. Every Republican present except Sen. Susan Collins voted for the nomination; every Democrat present opposed it. Like Sarah Pitlyk, a judicial nominee confirmed just last week, VanDyke received a rare “Not Qualified” rating from the American Bar Association. After conducting 60 interviews, the ABA found that VanDyke has a reputation as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” Video of VanDyke lecturing, scolding, and interrupting judges during oral argument while serving as Nevada solicitor general lends credence to that assessment.
VanDyke has a long record as an anti-LGBTQ activist. He wrote in 2004 that marriage equality “will hurt families, and consequentially children and society.” As the solicitor general of Montana, he advocated for the state to join two briefs alleging that legal recognition of same-sex relationships would harm children. The first claimed that prohibiting same-sex marriage promoted “optimal childrearing” because same-sex couples “cannot provide” the optimal “family structure.” And the second asserted that states “may rationally conclude” that “it is better” for parents to have a “biological” connection to their children. (The Supreme Court disagreed, ruling that a same-sex marriage ban “humiliates” the children of gay couples.) In 2010, VanDyke also filed a brief urging the Supreme Court to rule that student groups at public universities have a First Amendment right to discriminate against LGBTQ students.
In light of this record, the ABA expressed concern over whether “VanDyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community.” During VanDyke’s confirmation hearing, Missouri GOP Sen. Josh Hawley asked him if the ABA was right to worry. Do you believe, Hawley asked sympathetically, that you would treat LGBTQ litigants unfairly? “I do not believe that,” VanDyke said. Then he started crying. “It is a fundamental belief of mine that all people are created in the image of God,” he insisted. “They should all be treated with dignity and respect.” The victimizer had become the victim.
VanDyke, a longtime member of the Federalist Society, brought that group’s priorities to the Montana solicitor general’s office. He threw the state into a case challenging a federal law banning those under 21 from buying handguns, arguing that the ban “probably does violate the original meaning of the Second Amendment” because “18-year-olds were part of the ‘militia.’ ” He also defended a bizarre Montana statute that attempted to nullify federal law by declaring Montana-made firearms “not subject to federal law or regulation.” In internal emails, VanDyke acknowledged that his argument may not pass “the straight-face test.” Unsurprisingly, VanDyke also co-authored a brief defending 20-week abortion bans and urging the Supreme Court to reconsider Roe v. Wade wholesale.
Once VanDyke takes his seat, the 9th Circuit—which covers nine states and two territories—will be divided between 13 Republican appointees and 16 Democratic ones. Trump has reshaped the famously liberal court into a closely divided bench. It’s already paying off. Trump has a better chance of drawing a three-judge panel that includes a majority of Republican-appointed judges. And if the full court wants to review the panel’s decision, not every judge gets to participate. Instead, because the court is so big, 11 judges hear the case. These 11-judge panels are increasingly likely to have a conservative majority. Indeed, one such panel dominated by GOP appointees has already allowed Trump’s anti-abortion gag rule to take effect. The panel divided along party lines.
Trump has now appointed more than a quarter of federal appellate judges, and seven judges rated “Not Qualified.” The vast majority of federal cases end in appeals courts, so judges like VanDyke will have the final say over numerous disputes of great importance. Even if, against all odds, the Senate’s upcoming impeachment trial results in a conviction, Trump’s impact on the country will continue through his judicial nominees for decades to come.
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