President Donald Trump’s nominations to the federal courts are deteriorating faster than his party can lower its standards to approve his picks.
Case in point — Lawrence VanDyke, former Montana solicitor general and failed candidate for the Montana Supreme Court.
Mr. Trump has nominated Mr. VanDyke to serve as a judge on the Ninth Circuit Court of Appeals — despite that Mr. VanDyke has never practiced law representing ordinary people in the trenches and in the courts and has never served as a judge on any court.
Indeed, the American Bar Association (which historically assesses the qualifications of persons nominated for the federal bench) issued a blistering condemnation of Mr. VanDyke’s nomination, determining him to be “not qualified” to serve. Based on interviews with attorneys who knew and worked with Mr. VanDyke, the ABA noted, among other things, that he is “arrogant, lazy, an ideologue, lacking in knowledge of day-to-day practice including procedural rules.” The ABA’s letter observed that “[t]here was a theme that [Mr. VanDyke] lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.” Interviewees raised concerns that Mr. VanDyke would not say affirmatively he would be fair to any litigant before him — notably LGTBQ litigants.
Moreover six retired justices of the Montana Supreme Court (the undersigned included) sent a letter to the Members of the Senate opposing Mr. VanDyke’s nomination citing his extreme conservative, partisan ideological views—including the teaching of creationism and intelligent design to school children, his statements demonstrating a bias against LGBTQ people, and his support for the Citizens United decision — positions soundly rejected by Montana voters when Mr. VanDyke ran for the Montana Supreme Court in 2014. The retired justices stated that they “strongly believe that Mr. VanDyke has demonstrated that he has neither the qualifications nor the temperament to serve as a federal court of appeals judge.”
Just as disturbing, however, is that nominees of the caliber of Mr. VanDyke are not uncommon in the Trump administration. To date (keeping in mind that President Trump is not yet through three years of his first term) nine of his nominees to the federal bench (including Mr. VanDyke) have received “not qualified” ratings from the ABA. This compares to zero “not qualified” nominees under President Obama’s eight years; eight “not qualified” ratings during President George W. Bush’s eight years; four such ratings during President Clinton’s eight years; and no such ratings during President H.W. Bush’s four years in office.
Sadly, the long and short of it is, that President Trump has no regard for a fair, independent and impartial judiciary. Like his lickspittles in Congress and in his administration, Mr. Trump wants judges who will indulge his ideology; political hacks who will toe his line on the important cases that will come before the courts for generations: cases involving the environment, LGBTQ rights, education, reproductive rights, civil rights, defendants and criminal justice cases, consumer rights, worker and workplace matters, social justice, Native American rights, and, of course, immigration.
Mr. VanDyke is simply a current example of Mr. Trump’s vision for the federal judiciary. Draconian? Definitely! But, there are no doubt more VanDykes in the Trump pipeline.
If you don’t want jurists like Mr. VanDyke sitting on your cases, call and write your Senators. And, you might suggest a “quid pro quo” (since those seem to be in fore): If you vote to approve Lawrence VanDyke, I won’t be voting for you.
James C. Nelson is a retired Montana Supreme Court Justice. He lives in Helena.