Update (12/12/19): On December 11, the Senate confirmed VanDyke to a lifetime appointment on the U.S. Court of Appeals for the 9th Circuit.

Cable news outlets MSNBC and CNN have largely let Fox News shape the narrative around President Donald Trump’s most recent anti-LGBTQ judicial nominee, Lawrence VanDyke. Fox has covered the nomination more than twice as much as major broadcast and cable TV news networks combined and whitewashed his extreme record. 

VanDyke is a deputy assistant attorney general at the Department of Justice and former solicitor general for both Montana and Nevada, and he was nominated for a lifetime appointment to the U.S. Court of Appeals for the 9th Circuit on September 20. In advance of his hearing, the American Bar Association (ABA) issued a rare “Not Qualified” rating, in part due to his anti-LGBTQ viewpoints.

VanDyke has been identified as an allied attorney with extreme anti-LGBTQ group Alliance Defending Freedom (ADF), and he has attacked the rights of LGBTQ people throughout his legal career. His nomination advanced through the Senate Judiciary Committee on a party line vote on November 21 and will receive a final Senate vote on December 11.

Fox News covered VanDyke’s nomination more than twice as much as CNN and MSNBC combined

TV news outlets have had significant disparities in coverage of the nomination, with Fox News covering it the most by far. Broadcast news outlets ABC, CBS, and NBC have not made a single mention of VanDyke since his nomination. Cable news covered VanDyke’s nomination after he cried in response to questions about his anti-LGBTQ record during his Senate Judiciary Committee hearing. Fox News spent over 19 minutes covering the event, MSNBC devoted just over seven minutes to it, and CNN covered it for nearly two minutes. 

Every cable news segment following VanDyke’s hearing mentioned or was framed around his crying when confronted with his anti-LGBTQ history. Fox aired eight segments on the committee hearing, MSNBC aired three, and CNN aired just one. 

In their coverage, MSNBC and CNN noted VanDyke’s record of advocating against LGBTQ equality. MSNBC’s Rachel Maddow broadcast a four-and-a-half-minute-long segment on VanDyke’s anti-LGBTQ record and said that the ABA’s “assessment of his fitness to be a judge is like none I have ever seen or heard of,” noting that in the review, his colleagues described him as “arrogant” and “lazy” and said that they did not believe he could be fair to LGBTQ people.

VanDyke has advocated for extreme anti-LGBTQ positions throughout his legal career

While serving as solicitor general in Montana and Nevada, VanDyke filed and joined several briefs that opposed protections for LGBTQ people, including defending state bans on same-sex marriage and advocating for college student groups to be able to exclude LGBTQ students. He also worked with extreme anti-LGBTQ group ADF as an allied attorney and a Blackstone Legal Fellow. He is at least the eighth federal judicial nominee with ties to ADF (five have been confirmed and two were withdrawn). The extreme anti-LGBTQ group Family Research Council has championed his nomination and raised money for him during a 2014 Montana state supreme court race.

While attending Harvard Law School in 2004, VanDyke wrote an op-ed for the school paper in which he falsely suggested that “the view that homosexuals can leave the homosexual lifestyle” -- a reference to the dangerous and ineffective practice of conversion therapy -- had been substantiated by research. He also claimed that there is “ample reason for concern that same-sex marriage will hurt families, and consequentially children and society.” VanDyke evaded questions about this statement during his Senate Judiciary Committee hearing. 

Additionally, the ABA’s letter rating VanDyke as “Not Qualified” noted that “some interviewees raised concerns about whether Mr. VanDyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community.” The letter also described “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.” 

Leading LGBTQ organizations sent a letter to the Senate Judiciary Committee which opposed VanDyke’s nomination and noted that “it is simply impossible to believe that someone who has spent their entire career disparaging and opposing LGBT protections at every turn can be trusted to administer fair and impartial justice.” 

VanDyke’s nomination is also opposed by both of his home state senators in Nevada and by many other major advocacy organizations, including the NAACP Legal Defense Fund, Planned Parenthood, Alliance for Justice, The Coalition to Stop Gun Violence, and The Leadership Conference on Civil and Human Rights. 

Fox dominated coverage of VanDyke’s nomination and whitewashed his extreme views

Fox News’ coverage of VanDyke’s nomination whitewashed his anti-LGBTQ record by claiming that his tears were a response to a left-wing smear. 

Prime-time Fox News host Sean Hannity portrayed VanDyke sympathetically by claiming that he was “brought to tears like Justice Kavanaugh on Capitol Hill after enduring more baseless attacks -- lies -- from the left-wing smear machine."

Fox anchor Shannon Bream, part of the network’s so-called “news”-side team, reported on VanDyke “breaking down in tears,” noting that “President Trump's judicial nominees are no strangers to brutal confirmation hearings." In that same segment, correspondent Garrett Tenney and Bream noted that conservatives were criticizing the ABA letter as a partisan attack. Though Bream purports to be part of Fox's news division, she has a cozy relationship with ADF lawyers and regularly provides a platform for their extreme views on her prime-time show.

On Fox & Friends, First Liberty Institute’s Hiram Sasser, who formerly worked with VanDyke, similarly claimed that the left had worked with the ABA and called critiques of VanDyke’s anti-LGBTQ record a “smear attack” and a “bald-face lie.” In both the segment and an accompanying Fox News op-ed, Sasser ignored VanDyke’s history of advocating against LGBTQ equality. Instead, he claimed that the ABA “abandoned all pretense of partisan neutrality” and would be “morally responsible for the destruction of his career” if VanDyke is not confirmed. 

Right-wing media and conservative lawmakers have cited the ABA when it has favorably rated Trump’s judicial nominees, but some have been quick to call the organization a “left-wing advocacy group” when it does not. Notably, the ABA has rated nine of Trump’s 255 judicial nominations as “Not Qualified.” 

Media coverage of the Trump-Pence administration’s judicial nominations has been historically lacking

Media have also undercovered another right-wing judicial nominee. Just last month, the Senate confirmed Steven Menashi to a lifetime appointment to the 2nd Circuit Court of Appeals after TV news failed to report on his right-wing and anti-LGBTQ views following his Senate Judiciary Committee hearing. This follows an overall pattern of media outlets failing to cover LGBTQ-related issues.

Under Senate Majority Leader Mitch McConnell’s (R-KY) control, the Senate has confirmed numerous virulently anti-LGBTQ judges whose bigoted views may hurt queer and trans people for decades to come. The Trump-Pence administration’s judicial nominees now make up one in four circuit judges, and the administration is showing no signs they will slow down in their push to dramatically reshape the federal judiciary. That is why it is essential for media to aggressively report on Trump judicial nominees’ extreme backgrounds and not allow Fox News to shape the narrative around their nominations. 

Methodology

Media Matters searched transcripts in the Nexis and SnapStream databases for cable and broadcast network coverage appearing in original programming on CNN, Fox News, MSNBC, ABC, CBS, and NBC between 5 a.m. and 12 a.m. from September 20 to December 10 for mentions of any of the terms “VanDyke,” “Van Dyke,” “9th Circuit,” or “Ninth Circuit.”