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Catherine Cortez Masto, left, (D-Nev.) and Congresswoman Jacky Rosen, candidate for U.S. Senate, after voting at Cardenas Market in east Las Vegas on Friday, Oct. 26, 2018. (Jeff Scheid/The Nevada Independent)

Concerned about President Donald Trump's push to put ideological conservatives on the bench, Sens. Catherine Cortez Masto and Jacky Rosen said they were disappointed with the announcement Friday that he intends to nominate former state Solicitor General Lawrence VanDyke to the U.S. Court of Appeals for the Ninth Circuit.

“The Administration’s decision to put forward this nominee ignores the broad, consensus-based opinion of Nevadans,” the two said in a joint statement. “Instead, the White House has chosen to move forward on their extreme judicial agenda. While we will review the full record of this nominee, we are disappointed that the White House has chosen to nominate a candidate with a concerning record of ideological legal work.”

The two Nevada Democrats also said that the White House ignored their efforts to find a consensus candidate to fill the post. The Ninth Circuit Court of Appeals has jurisdiction over District Court cases tried in Nevada.

“We’re frustrated the White House is choosing to ignore the bipartisan work undertaken by our offices in concert with Nevada’s legal community to identify and recommend qualified Nevadans for the Ninth Circuit,” the senators said.

VanDyke, who has never served as a judge, currently serves as a Deputy Assistant Attorney General for the Environment and Natural Resources Division at the Department of Justice (DOJ). 

Before joining the DOJ, he was Nevada Solicitor General between 2015 and the beginning of 2019, where he served as the state’s top appellate attorney and litigated cases on behalf of Nevada in the U.S. Supreme Court and lower courts, including the Ninth Circuit Court of Appeals and Nevada Supreme Court.

Prior to moving to Nevada, he was the solicitor general of Montana and, before that, worked in private practice with the law firm Gibson Dunn and Crutcher LLP. 

VanDyke earned his B.S. from Montana State University and his J.D. from Harvard Law School, where he served as an Editor of the Harvard Law Review. He also was a law clerk to Judge Janice Rogers Brown of the United States Court of Appeals for the D.C. Circuit.

VanDyke did not become an actively licensed attorney in Nevada until October 2017. 

They also took issue with his work in Montana where he joined an amicus brief in a case over whether a photography company violated a New Mexico law by refusing to photograph a same-sex wedding. 

The senators cited an email obtained by the Great Falls Tribune, where he wrote that “this is an important case for the future of religious freedom in America . . . because there is a fairly obvious collision course between religious freedom and gay rights, and this case (because it is an extreme case) could be very important in establishing that gay rights cannot always trump religious liberty.”

VanDyke also recommended that Montana support a brief defending an Arizona law banning abortion after 20 weeks, the senators contend 

He ran for a seat on the Montana Supreme Court.He also received significant donations from the Montana Petroleum Marketers Association and the Family Research Council, the senators noted.

The announcement comes as the GOP-controlled Senate confirmed its 150th judge, helping the president fulfill a campaign promise to fill a huge number of empty federal judicial posts, many with conservatives who can hold the job for the rest of their lives and issue rulings on the constitutionality of administration policies. 

Former Senate Majority Leader Harry Reid ultimately paved the way for the GOP push on conservative judges when in 2013 he lead Senate Democrats in changing the procedure for confirming judges by, in effect, getting rid of the filibuster. The move, which Reid argued was prompted by what he claimed was Republican obstruction on judges nominated by President Barack Obama, now no longer requires 60 votes to advance judicial nominees, but can be advanced on a simple majority vote.

Senators also now have little recourse to block judges in the Senate Judiciary Committee. A century-old practice in the Senate known as the “blue slip” process had been a way to achieve consensus on a nominee and for a senator to ‘veto’ picks they don’t like.

When a nominee is sent to the Judiciary Committee, the chairman sends a blue slip — literally a blue piece of paper — to the two senators in that nominee’s state. The senators can either indicate on the slip whether they support or oppose the nominee.

They can also withhold the slip altogether. Some committee chairmen have responded to that move by not considering a nominee for a hearing.

But Republican chairmen of the committee, beginning with Iowa Sen. Chuck Grassley last year, have no longer been honoring the practice.

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