Washington, D.C. December 11, 2019 Regional Office 1016 16th Street, NW Suite 100 Washington, DC 20036 Washington, D.C. 20515 Tel: 202.293.2828 RE: Oppose Confirmation of Lawrence Van Dyke to the United States Court of Appeals for the Ninth Circuit

National Headquarters Dear Senator: Los Angeles Regional Office I write on behalf of MALDEF (Mexican American Legal Defense and Educational Fund) to urge 634 S. Spring Street you to oppose the confirmation of Lawrence Van Dyke to the United States Court of Appeals for Los Angeles, CA 90014 Tel: 213.629.2512 the Ninth Circuit. Founded in 1968, MALDEF is the nation’s leading Latino legal civil rights law firm. Often described as the “law firm of the Latino community,” MALDEF promotes social change in the areas of immigrants’ rights, education, employment, and political access.

Chicago Lawrence Van Dyke has spent much of his career moving from state to state as an attorney for hire. Regional Office In 2012, he became the Assistant Solicitor General of Texas; in 2013, he became the Montana 11 East Adams Solicitor General, and in 2015, he became the Solicitor General of the State of Nevada. During this Suite 700 Chicago, IL 60603 time, Mr. Van Dyke’s record shows that he is unqualified to be a federal judge.

Tel: 312.427.0701 Judges must be neutral arbiters of the law. But Mr. Van Dyke’s record shows that immigrants, LGBTQ persons, and persons defending their reproductive rights cannot trust that they would get a fair hearing from him if he were to become a judge. Judges also must have judicial temperament, San Antonio but Mr. Van Dyke’s record shows that he lacks the candor required to be a judge. Thus, Mr. Van Regional Office 110 Broadway Dyke’s record disqualifies him from becoming a federal judge. Suite 300 San Antonio, TX 78205 I. Immigrant Rights Tel: 210.224.5476 During his time as the Solicitor General of Nevada, Mr. Van Dyke chose to ally Nevada with states seeking to end the program known as Deferred Action for Childhood Arrivals (DACA).1 DACA

provides 700,000 persons within the United States temporary protection against deportation; ending Sacramento DACA could lead to their deportation. As the Solicitor General of Nevada, Mr. Van Dyke, also Policy Office sought in court to prevent other jurisdictions from having community-trust policies, sometimes 1512 14th Street known as “sanctuary city” policies, which allow jurisdictions to better fight crime by building trust Sacramento, CA 95814 with immigrants in their communities so that immigrants do not fear that they will be deported if Tel: 916.444.3031 2 they are victims of a crime, and report that crime to the authorities.

Nevada was not injured by either policy in these cases. Instead, Mr. Van Dyke chose to go out of his way to take anti-immigrant positions. No immigrant before Mr. Van Dyke could trust that they could get a fair hearing.

II. LGBTQ Rights As a law student, Mr. Van Dyke spent his summer working for the Alliance Defending Freedom, an anti-LGBTQ hate group.3 Additionally, as a law student, he wrote an article that argued same-sex marriage “hurt families and consequentially children and society.”4 Mr. Van Dyke refused to disavow that statement even in his hearing before the Senate Judiciary Committee, while sitting next to a gay father and fellow Ninth Circuit nominee, Patrick Bumatay.5

1 Texas v. United States, 809 F.3d 134 (5th Cir. 2015). 2 Motion for Leave to File Brief Amici Curiae at 4, City of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017) available at https://www.clearinghouse.net/chDocs/public/IM-CA-0089-0032.pdf. 3 Alliance Defending Freedom, SPLC, https://www.splcenter.org/fighting-hate/extremist-files/group/alliance-defending-freedom. 4 Lawrence VanDyke, One Student’s Response to ‘A Response to Glendon,’ HARVARD LAW RECORD (Mar. 11, 2004), available at https://web.archive.org/web/20180402060657/http:/hlrecord.org/2004/03/one-students-response-to-a-response-to-glendon/.

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When evaluating his judicial temperament, the American Bar Association (ABA) noted that Mr. Van Dyke refused to "say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”6 All litigants should be able to trust that judges will look upon their cases impartially and without bias. Mr. Van Dyke’s shameful opinions on LGBTQ rights, and his refusal to disavow that record when repeatedly given the opportunity, show that his nomination must be rejected. Indeed, any nominee who refuses to affirm that he would be fair to any litigant before him has no place in the federal courts. Such a refusal would render any such judge to repeated (and likely meritorious) requests that he be disqualified for bias; these requests in turn burden all of the other judges sitting in a particular court.

III. Reproductive Justice As Solicitor General for the State of Montana, Mr. Van Dyke chose to write an amicus brief supporting Arizona’s unconstitutional 20-week abortion ban.7 He also recommended that Montana join an amicus brief in the Hobby Lobby case arguing that for-profit corporations should be exempt from the Affordable Care Act’s contraception mandate. As with other amicus briefs written and joined by Mr. Van Dyke, these briefs show that he chose to go out of his way to take these anti- woman positions.

IV. Judicial Temperament After interviewing 43 lawyers and 16 judges who have worked with Lawrence Van Dyke, the ABA Standing Committee on the Federal Judiciary determined that his “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, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.”8

Evidence in the public record reflects the ABA’s conclusions from those closed-door interviews. In 2014, a former colleague of Mr. Van Dyke said, “Ever since he has arrived, Mr. Van Dyke has been arrogant and disrespectful to others, both in and outside of this office. He avoids work. . . . He [later] quit his job, in a tantrum, because he didn’t want to work.”9 The same colleague of Mr. Van Dyke complained to the Montana Department of Justice’s Chief of Staff, who commented in an email “your frustration does not exceed ours.”10 The conclusions from the ABA’s closed-door interviews, and the public record on Mr. Van Dyke’s erratic and disrespectful behavior, show that he lacks the candor and temperament to be a judge.

V. Conclusion Given Lawrence Van Dyke’s record on immigration, LGBTQ rights, reproductive rights, and his lack of judicial candor, he has proven that he is not qualified to be a federal judge. We strongly urge you to vote “no” on the confirmation of Lawrence Van Dyke to the United States Court of Appeals for the Ninth Circuit. If you have any questions regarding this letter, please contact me at [email protected]. Thank you for your time and consideration.

Sincerely,

Adam Fernandez MALDEF Legislative Staff Attorney

5 Nomination Hearing with Patrick Bumatay and Lawrence VanDyke, SENATE JUDICIARY, 00:51:30-00:52:20 (Oct. 30, 2019) (when Senator Leahy commented: “it worried me when Sen. Cortez-Masto asked you whether your opinion had changed, your response was sort of a flippant, ‘well you haven’t seen up-to-date research on this issue’ . . . do you still stand by your previous view that same-sex marriage harms children?” Mr. VanDyke responded that the Supreme Court had spoken to the issue of the constitutionality of same-sex marriage, but “. . . as far as my personal views, it is important to recognize, they would play no role in how I would judge.”) https://www.judiciary.senate.gov/meetings/10/30/2019/nominations. 6 Nomination of Lawrence J.C. VanDyke to the United States Court of Appeals for the Ninth Circuit, ABA (Oct. 29, 2019) https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/10-29-2019-vandyke-rating.pdf?logActivity=true. 7 Amicus Brief of the States of Ohio, Montana, and 14 Other States Supporting Petitioners, Horne v. Isaacson, 571 U.S. 1127 (2014) available at https://www.ohioattorneygeneral.gov/OhioAttorneyGeneral/files/e5/e5fa00ee-6a4b-45aa-b1db-0fc2549d08c9.pdf. 8 Nomination of Lawrence J.C. VanDyke to the United States Court of Appeals for the Ninth Circuit, ABA (Oct. 29, 2019) https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/10-29-2019-vandyke-rating.pdf?logActivity=true. 9 Former colleague criticizes VanDyke's qualifications for Montana Supreme Court, LEGAL MONITOR WORLDWIDE (Oct. 16, 2014) available at https://afj.org/wp-content/uploads/2019/10/Former-colleague-criticizes-VanDyke_s-qualifications-fo.pdf. 10 Email from Scott Darkenwald, Chief of Staff of the Montana Department of Justice, to Michael Black, Chief of the Civil Services Bureau of the Montana Department of Justice (Jan. 28, 2014) available at https://afj.org/wp-content/uploads/2019/10/VanDyke-FOIA-p664.pdf.

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