On Tuesday, after a three-month delay, the Republican-controlled Senate confirmed Kyle Duncan to serve on the 5th Circuit Court of Appeals. The 50-47 vote split along party lines, with all Republicans voting to confirm the Louisiana native, and Joe Manchin — the Democrat senator from West Virginia seeking re-election this fall — representing the only Yea vote cast from across the aisle. (Sens. Tammy Duckworth, D-Ill., John McCain, R-Ariz., and Rand Paul, R-Ky., were absent for the vote.)
Duncan’s confirmation ends the seven-month slur campaign orchestrated by the Left against one of the country’s most talented constitutional lawyers. Ironically, since President Trump announced Duncan’s nomination to the federal appellate court in September 2017, liberals have attempted to thwart his confirmation because Duncan has been such a good attorney, with his victory in the Supreme Court in Burwell v. Hobby Lobby triggering the most vitriol. And just last week, in a desperate attempt to derail the impending vote, the junior senator from California, Kamala Harris, re-upped that strategy, tweeting:
Remember the Hobby Lobby Supreme Court case where corporate bosses argued for the ability to block their employees’ access to birth control? The lead lawyer was Kyle Duncan.
— Kamala Harris (@SenKamalaHarris) April 19, 2018
Harris, though, seems to be the one with a blurry memory — while Duncan served as lead counsel for Hobby Lobby, Hobby Lobby did not seek to “block their employees’ access to birth control.” Rather, the owners of Hobby Lobby sought to operate their business consistent with their evangelical Christian faith — which meant not paying for abortifacients for their employees. Harris also conveniently ignores that Duncan won the Hobby Lobby case.
While it is no surprise that such (purposefully) ignorant rhetoric flows freely from politicians, the American Civil Liberties Union likewise castigated Duncan for his role as the lead counsel for Hobby Lobby in that landmark case. Apparently, the ACLU sees fit to pay attorneys to represent Sept. 11-connected terrorists detained in Guantanamo, but finds Duncan’s representation of Christian business owners beyond the pale.
Of course, Duncan’s advocacy in Hobby Lobby isn’t the Left’s true concern: It is his Catholic faith and his conservative ideology. But the inaccurate “deny women’s access to birth control” soundbite serves as a better prod to rile the base, and it does so without triggering the backlash seen when liberals more honestly expressed their real fear — that the “dogma lives loudly” in the religiously devout nominees to the bench.
That is why for the last half-a-year, liberals peddled fake outrages, such as the claim that “Duncan is anti-LGBT.” Translation: Duncan represented the school board in the Gavin Grimm case, arguing Grimm, a girl suffering from gender dysphoria, did not have a right under Title IX to access the boys’ restroom. Or that “Duncan fought to deny minorities the right to vote.” Translation: Duncan defended North Carolina’s voter-ID law.
But the most unjust smear came from a more sympathetic source, Laverne Thompson. Thompson’s now-deceased husband, John, had been wrongly convicted of murder and served 18 years in prison before his conviction was overturned when it was discovered that prosecutors had hid exculpatory evidence. While Laverne’s anger was righteous, in an op-ed inexcusably published by the New York Times, she portrayed Duncan as complicit in the framing of her late-husband. Duncan, though, had nothing to do with John’s trial. Duncan also had nothing to do with the prosecutors who withheld the evidence that led to John’s wrongful conviction. Rather, Duncan represented the District Attorney’s Office years later when Thompson sued the governmental entity, seeking to hold the office responsible for the conduct of the rogue prosecutors. And when the case reached the Supreme Court, Duncan’s advocacy once again won the day for his client, with the justices holding that the District Attorney’s Office had no duty to “provide prosecutors with formal in-house training about how to obey the law.”
It is difficult to imagine a judicial nominee surviving the seven-month barrage of slurs and slanders Duncan faced, but the Senate’s vote on Tuesday proves that President Trump’s team has perfected the judicial confirmation process. Selecting high-quality candidates, who are also good and honorable men and women, is obviously the first step. But as Duncan’s case also proves, if you are a conservative, that is not enough — to Democrats, being conservative is disqualifying.
The Republican leadership has finally come to terms with that reality and, rather than cower and capitulate when the Left attacks, they methodically move their nominee forward, marching through the previously impenetrable roadblocks, such as the blue slips. When coupled with President Trump’s strong leadership on judges, the result is the unprecedented confirmation of more than 30 judges, including 15 federal circuit court judges, during his first term in office.
Yet, Democrats continue to delay the process by forcing 30 hours of debate for nominees they have no intention of confirming, leading to a backlog of another 30-plus nominees waiting for floor votes. But Republicans appear poised to counter this tactic as well, with the Senate Rules and Administration Committee approving a proposed amendment to the confirmation process that would reduce the 30 hours allocated for debate to two hours, for nominees to federal district courts. The full Senate must still vote on this measure but, if approved, expect another flurry of confirmations to conclude before the fall midterm elections, including some made in Duncan’s mold — which will be a good thing indeed.
Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner’s Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge, and is a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.
