Heavyweight champion Joe Louis said of an opponent. "He can run, but he can't hide." Montana Supreme Court candidate Lawrence VanDyke hopes to prove Louis wrong: He's running for the Court while trying to hide his record, beliefs and positions he taken to get support. It's an attempt involving national players and national implications.
In July Mr. VanDyke declined to be interviewed on Home Ground, the Montana radio show I've hosted for 18 years. He refused a second invitation in September.
It seemed strange: VanDyke, Texas-born, Montana-raised, had recently returned after a long absence, and had practiced law here only briefly. His name was not widely known. So why wouldn't he want our large, statewide audience to meet him, hear his views?
An August 5 New York Times story hinted at an answer: It reported that big money would be poured into judicial elections in several states, including Montana. And the money was partisan: The Republican State Leadership Committee had raised more than $25 million. Top donors include Reynolds tobacco at $1.1 million, Blue Cross/Blue Shield at $958,000, and Koch Industries, $460,000. Millions of those dollars are targeted at state judicial elections.
So did VanDyke already know he could count on huge amounts of "independent" out-of-state money? Enough to fund a statewide TV and radio blitz, yard signs, and tens of thousands of full-color mailers saying he "has Montana values and will protect private property and our Second Amendment rights", and attacking the incumbent, Justice Mike Wheat? It's illegal for candidates to coordinate messaging with the out-of-state PACs. But perhaps VanDyke had gotten upfront assurance of their support. If so, what if anything had he promised this national political organization in exchange for hundreds of thousands of dollars? To simply honor his campaign slogan, "Law, Not Politics"?
But even if assured of outside money, why duck a radio show that reaches thousands? For more than a decade, Home Ground has interviewed Supreme Court Justices (as well as retired U.S. Supreme Court Justice Sandra Day O'Connor). And we interview candidates for the Court. Why? Because the Founders listed "establish Justice" as a top priority in the Constitution's Preamble. And justice is the responsibility of our courts and our judges.
I'm a lawyer for 40 years -- useful background in 'cross-examining' Court candidates. We ask about their important personal values and judicial philosophy -- the human "filters" which inevitably influence how they'll interpret the complicated cases that come before them. For 30 minutes, we probe their views on controversial U.S. Supreme Court decisions, revealing their depth and grasp of the Constitution. We ask how they'd approach cases where Constitutional rights are in conflict -- as when the public's right to know comes in conflict with the individual's right to privacy; or the right to own and use property is regulated to protect public safety...
On our show there is no place to hide. If you duck, I pursue. Our audience can tell who's talking straight. The results are revealing. Two years ago, after interviewing both candidates, I publicly supported the more "conservative" Laurie McKinnon. I was struck by the directness of her answers and the depth of her legal analysis.
Suggesting he was too busy to appear on Home Ground, VanDyke didn't mention he'd found time for 50 minutes of light talk with conservative radio host Rick Tryon. In response to the host's praise, he offered sound bites like "government is not the solution to every problem".
I decided to dig deeper, and what I'd learned long ago as a boxer and collegiate boxing coach helped me solve the VanDyke riddle: Boxing reflects character. Honorable fighters show courage, skill, respect for the opponent, and throw clean punches. The others try to fake it - razzle-dazzle shuck and jive, and cheap shots to hide their weakness. Some play 'peek-a-boo' to avoid a stand-up fight. When the judges aren't looking, unethical fighters hit below the belt. Regrettably, it became clear: VanDyke's a 'peek-a-boo' guy, willing to hit low.
The Opening Feint: What's his record? His website puts a promoter's spin on a very short resume -- 2005 graduation from Harvard; clerked for a federal judge, wrote some briefs on constitutional law, and 18-month service in the Montana Attorney General's office. No mention of his years as a new attorney at the 1,000-lawyer, global firm of Gibson, Dunn & Crutcher, which represents major multinational corporations... How good was his work in these jobs? No one I spoke with had his formal resume, the meat and potatoes of a lawyer's credentials. I emailed VanDyke, asking for a copy: No reply.
Below the Belt: He's repeatedly accused his opponent, Justice Wheat -- and the Montana Supreme Court as a whole -- of being "results-oriented", deciding on outcomes first, then finding legal principles to justify the decisions. In plain English, he's charging Montana's justices with violating their Constitutional oath. Yet so far as I can determine, he's refused to back up the accusation -- by naming specific cases, and identifying the other "guilty" members of the Court. Chief Justice Mike McGrath? Justice Baker? Cotter? Rice? McKinnon?
It's a basic Montana value: If you accuse someone with breaking an oath, you darn better be willing to back it up.
Meanwhile, mailers and ads paid for by his "independent" big-money supporters crudely distort Supreme Court decisions with misleading excerpts and inflammatory language -- while featuring the smiling face of Lawrence VanDyke.
Sucker Punch: In 2004 VanDyke wrote a Harvard Law Review article that argued the theory of Intelligent Design (supernatural intervention in species' evolution) was a superior theory to the theory of natural evolution. Asked about it by a reporter, he said the article was "irrelevant" to his potential work on the Court: "I will follow the law and the Constitution." But VanDyke knows that the most crucial role of the Supreme Court is to interpret the law and Constitution when their meaning is not clear. He understands there is no legally-binding court precedent on whether, under the Constitutional principle of separation of church and state, Intelligent Design can be taught in our public schools as "science." So, his personal support of the theory's merit is central. He knows that.
"Irrelevant", he also says when asked about his signed legal briefs -- one calling for reconsideration of Roe v. Wade, the 1973 U.S. Supreme Court case establishing the right of a woman to terminate pregnancy.
The Peek-A-Boo Defense: I'm a life-time hunter, so VanDyke's endorsement by the NRA caught my eye. The NRA says VanDyke's answers to their questionnaire earned him an 'A' rating. What questions and answers? NRA says that's confidential. I asked VanDyke for a copy. No reply. I found a candidate questionnaire on the web. One question: Do you support concealed weapons "reciprocity" that NRA favors? Meaning that Montana, which requires a law enforcement-issued permit, would accept that a man from Vermont, where no permit is required, can legally carry a concealed weapon anywhere in our state. Another asks if you support repealing the law requiring a permit to carry a concealed weapon. Since he's 'A-Rated', can we assume he agrees with these and other NRA proposals? He told another lawyer he believed he should be able to carry a concealed weapon into a bar or liquor-serving restaurant - currently against Montana law. Does he feel that law violates the 2nd Amendment?
While trumpeting NRA's endorsement, VanDyke will say the opinions he expressed to get it are "irrelevant" to decisions he'd make on the Court. Really? Is that what the NRA thinks, in endorsing him?
The Montana Shooting Sports Association (MSSA) has supported repeal of Montana's law banning concealed weapons in schools, government offices, banks and bars. They've supported requiring federal law enforcement "to obtain written permission of the local sheriff before conducting an arrest, search or seizure in the sheriff's county."
MSSA gives VanDyke their highest AE grade, with its rating "Basis" listed as "Other." A text note explains: "Rarely, MSSA will grade a candidate with an "O" (Other)... That's because MSSA has some other source of information about the candidate than a voting record or questionnaire." What information?
Politicians make hidden commitments all the time. Is that what we want from our Supreme Court justices?
The Trainer in His Corner: Boxers seek out trainers they admire. VanDyke worked as law clerk to Judge Janis Rogers Brown. He says she's "distinguished", and she is -- by extremist ideology. In a speech to the Federalist Society, she equated Franklin Roosevelt's New Deal to the Bolshevik communist Revolution: "(The idea) can be traced from the Enlightenment, through the Terror, to Marx and Engels, to the Revolutions of 1917 and 1937. The latter date marks the triumph of our own socialist revolution." Does VanDyke agree? "Irrelevant!"
Lawrence VanDyke is betting Joe Louis is wrong. He's betting he can run for the Court, counting on out-of-state big money, all the while hiding from Montanans his deepest-held views, and behind-closed-doors positions he's taken.
The judges outside the ring, the people of Montana, must decide if he wins his bet.