On October 2, 2017, President Trump nominated Stuart Kyle Duncan for a seat vacated by W. Eugene Davis on the United States Court of Appeals for the Fifth Circuit. Alliance for Justice strongly opposes his confirmation.
In opposing Executive nominations in the past, Senate Republicans have claimed that nominees whose records are defined by political ideologies are disqualified. For example, Senator Chuck Grassley claimed, “[t]he President’s nominee can’t be so committed to political causes, and so devoted to political ideology, that it clouds his or her judgment.” Similarly, Senate Majority Leader Mitch McConnell disqualified a nomine whose litigation record was, in McConnell’s words, “marked by ideologically-driven positions[.]”
Kyle Duncan is a nominee whose record is unquestionably “marked by ideologically-driven positions.” In fact, Duncan has spent his career fighting reproductive rights for women and civil rights for LGBTQ Americans, defending discriminatory voting laws, and dismantling protections for immigrants:
Duncan has fought contraception coverage for women. He served as lead counsel in Burwell v. Hobby Lobby Stores, Inc. 134 S. Ct. 2751 (2014); he opposed the Affordable Care Act’s contraception mandate in an amicus brief in Zubic v. Burwell, 136 S. Ct. 1557 (2016); and he authored a brief in Stormans Inc. v. Weisman, 794 F.3d 1064 (2015) opposing a Washington law that required pharmacies to stock some forms of birth control.
Duncan has fought against a woman’s right to choose to have an abortion. Duncan co-authored an amicus brief in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) supporting Texas’s restrictions on abortion, restrictions that the Supreme Court found were an undue burden on the rights of women.
Duncan has actively fought LGBTQ equality. Duncan authored briefs opposing marriage equality in Obergefell v. Hodges, 576 U.S.___(2015) and supporting Louisiana’s and Virginia’s discriminatory “Defense of Marriage” laws in Robicheaux v. George, 135 S.Ct. 995 (2015) and Schaefer v. Bostic, 135 S.Ct. 308 (2014). Indeed, Duncan questioned the legitimacy of the Supreme Court itself following the Obergefell decision, saying “[the same-sex marriage case] raises a question about the legitimacy of the Court.” Moreover, he has repeatedly attacked the rights of same-sex couples attempting to adopt children. See Adar v. Smith, 597 F.3d 697 (5th Cir. 2010); V.L v. E.L., 136 S. Ct. 1017
(2016). This year, he represented the Gloucester County School Board in Gloucester County Sch. Bd. v. G.G., No. 16-273 (Mar. 6, 2016). the well-publicized Gavin Grimm case, in which Duncan fought to keep transgender students from using the bathroom that conforms to their gender identity by advancing arguments that construe transgender Americans as mentally ill. Disturbingly, Duncan has spoken multiple times before the Alliance Defending Freedom.The Southern Poverty Law Center has classified the Alliance Defending Freedom as a “Hate Group” that “has supported the recriminalization of homosexuality in the U.S. and criminalization abroad; has defended state-sanctioned sterilization of trans people abroad; has linked homosexuality to pedophilia and claims that a ‘homosexual agenda’ will destroy Christianity and society.”
Duncan has fought to make it more difficult for people of color to vote. In North Carolina v. N.C. State Conf. of NAACP, 137 S. Ct. 1399 (2017), he (along with fellow Trump judicial nominee Thomas Farr) unsuccessfully petitioned the Supreme Court to uphold a law that attacked the voting rights of communities of color, and that the Fourth Circuit said had been enacted with discriminatory intent, “target[ing] African Americans with almost surgical precision[.]” North Carolina State Conf. of NAACP v. McCrory, 831 F.3d 204, 214 (2016). Similarly, Duncan defended a controversial voter photo ID law in an amicus brief supporting the state of Texas in Abbott v. Veasey, 137 S. Ct. 612 (2017).
Duncan has taken a hardline stance against immigrants. Duncan filed an amicus brief against President Obama’s Executive Order that established the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. In his brief, Duncan challenged the naturalization of undocumented immigrants on the basis that it threatens public safety by arguing that “[m]any violent criminals would likely be eligible to receive deferred action under DAPA’s inadequate standards.” This line of reasoning reinforces troubling stereotypes and misconceptions about immigrants.
Duncan has opposed criminal justice reform. For example, Duncan challenged the retroactive application of the Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), which held that mandatory life sentences without the possibility of parole were unconstitutional for juveniles.
Duncan has made it clear he will not respect legal precedent. Federal judicial nominees often stand before the Senate Judiciary Committee and pledge that they will follow judicial precedent. Duncan, by his own admissions, has indicated he will not respect precedent when he disagrees with the outcome of a case. After the Obergefell decision upheld the right to same-sex marriage, Duncan questioned the legitimacy of the Supreme Court, saying “[the same-sex marriage case] raises a question about the legitimacy of the Court.” He similarly disparaged the legitimacy of the Ninth Circuit before the court heard a case that required pharmacies to provide contraceptive drugs. And when asked at a Federalist Society event about the Affordable Care Act’s contraceptive mandate, Duncan commented that he was “very friendly philosophically to making arguments” not to follow precedent.