This is Montana Supreme Court Justice Mike Wheat. His opponent, Lawrence VanDyke, gave me lots of good reasons to vote for Wheat.
In almost every election there is something on the ballot I feel good about voting for or against, something to balance my cynical distaste for politics.
A few years ago it was the chance to vote for our beautiful new library. When I pass it now I can say to myself, “I built that,” and it’s kind of true, in a way. In other elections, during the time I was covering the City Council, I could for vote for an incumbent I knew from experience to be a good public servant—or against one I knew to be an annoying jackass.
This year (yes, I voted already) there were two satisfying ovals waiting to be blacked out. The first was my “no” vote on Legislative Referendum 126, which is described as “an act protecting the integrity of Montana elections.” Yeah, right. A better description would be “a naked attempt to restrict access to the polls.” I wish all ballot questions were so easy to judge.
And then there was my vote for Mike Wheat. I don’t normally get too excited about Montana Supreme Court races, and I still have no strong feelings in favor of Wheat, who was appointed to the high court by Gov. Brian Schweitzer.
But I do have strong feelings about Lawrence VanDyke, who is running against Wheat, and even stronger feelings about all the outside money that his candidacy is bringing into our state, and all the sleazy ads that dark money is buying.
Before getting to my bill of particulars, I think it’s only fair to defend VanDyke against one charge being made by his opponents. They have been portraying him as a carpetbagger who was born in Texas and practiced law in Montana for less than two years.
Ed Kemmick
Well, yes, he was born in Texas, but his family moved to Bozeman when he was an infant and he was raised there. In fact, he describes himself as a fifth-generation Montanan, so perhaps his ancestors arrived here in a covered wagon named The Mayflower.
That will wrap up my defense. As for reasons to vote against him, where do I begin?
I could begin by referring you to a comprehensive overview of the race written by David Katz, the proprietor of the Preserve Beartooth Front blog. He examines the race mainly from the perspective of what a VanDyke victory would mean for those worried about unrestricted oil development, but he covers a lot of other ground as well, including the dark money business, backed up by links and citations.
Or I could refer you to a letter to the editor of the Missoulian from Terry Trieweiler, a retired state Supreme Court justice. That letter gets closer to the heart of my own strongest objection to VanDyke.
VanDyke keeps saying that he is running against Wheat because Wheat is “result oriented,” implying that he issues judicial decisions based on ideology or preexisting beliefs, rather than being guided by the law. VanDyke’s own high-minded slogan is “Following the Law, Not the Politics,” or, in its shortened version, “Law, Not Politics.”
You can argue, I suppose, about whether Wheat, formerly a Democratic state senator from Bozeman, is too liberal. VanDyke does that, but then goes on to portray himself as a nonpartisan thinking machine, a constitutional expert, a veritable Solomon who will protect sacred law from the defilement of politics.
Before turning to ideology or the purported lack of it, let’s look at VanDyke’s claim that his constitutional experience is what the state Supreme Court needs. He made that claim to Chuck Johnson, Helena bureau chief for Lee Newspapers.
So, even assuming VanDyke’s expertise is all he claims it to be, it’s rather a stretch to say it is a qualification that really matters.
It stretches truth to the breaking point for VanDyke to claim that he is the nonpartisan candidate in this race, the one who would not be “result oriented.”
Another good reporter, John Adams, of the Great Falls Tribune, obtained copies of emails sent to and from VanDyke while he was solicitor general in the office of Montana Attorney General Tim Fox. VanDyke was named to that post in January 2013. All of his previous legal work was Washington, D.C., and Dallas, Texas.
Adams’ examined those emails and reported that VanDyke had spent “a significant amount of time” as our solicitor general writing amicus or “friend of the court” briefs filed in other states. Many of those cases dealt with constitutional challenges to state and federal laws regarding abortion, gun rights and same-sex marriage.
In every case he took hard-right stands. In an amicus brief in an Arizona case he called for the reconsideration of Roe v. Wade, the landmark abortion-rights case. In another email urging Fox to get involved in the case of a photographer in New Mexico who refused to photograph a same-sex commitment ceremony, VanDyke called it “an important case for the future of religious freedom in America.”
He also tried to convince Fox to file amicus briefs in gun-rights cases in New York, New Jersey and Connecticut. In one infamous email to an assistant solicitor general in Alabama, which was also considering filing an amicus brief against New York’s ban on semi-automatic weapons, Van Dyke wrote, “Plus semi-auto firearms are fun to hunt elk with, as the attached picture attests.” The photo showed VanDyke hunting with a semi-automatic rifle.
There’s the judicial temperament for you.
What made everything much worse is that VanDyke, in response to questions from Adams, pretended to have no personal feelings about any of those issues.
“You simply cannot draw inferences about my personal views by the cases I worked on,” VanDyke said at one point. At another, he said that as solicitor general, “I was often an advocate. My job was to represent the interests of the people of Montana and defend our state’s laws. So simply because I worked on a specific case or made a specific recommendation obviously can’t be taken as representative of my personal views.”
This rank sophistry is the best answer he can muster? That alone should disqualify him from the high court.
While he was being paid with taxpayer money, he spent a good portion of his time sniffing out cases in other states where he could advance his own ideological goals on some of the most contentious issues of our times. And then he wants to pretend he had no ideological goals and was merely representing “the interests of the people of Montana.”
I hope the people of Montana, or at least the ones who vote, will be result oriented, and that the result is the election of Mike Wheat.
