Appellate Judges

The Nomination of Fifth Circuit Judge Kyle Duncan and Devout Catholic – Judge (Stuart) Kyle Duncan

Judge Kyle Duncan is a member of the Federalist Society and also the Knights of Columbus, an international organization of nearly 2 million Catholic men, which competes with the [Free] Masons as a religious organization.

Nomination of Kyle Duncan to the U.S. Court of Appeals for the Fifth Circuit Questions for the Record

December 6, 2017

QUESTIONS FROM SENATOR FEINSTEIN

Would you describe your approach to constitutional interpretation to be “originalist”? If so, what does that mean to you? If not, how would you describe your approach?

As a judge, I would be bound by oath to interpret the United States Constitution by applying all precedents of the Supreme Court and the Fifth Circuit. See, e.g., Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484 (1989) (observing that “the Court of Appeals should follow the case which directly controls, leaving to th[e] [Supreme] Court the prerogative of overruling its own decisions”); United States v. Gonzalez-Longoria, 831 F.3d 670, 678 (5th Cir. 2016) (noting that courts of appeals “decline to get ahead of the Supreme Court”); United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999) (explaining a “panel is bound by the precedent of previous panels absent an intervening Supreme Court case explicitly or implicitly overruling that prior precedent”). If confirmed, I would fully and faithfully apply all binding precedents of the Supreme Court and the Fifth Circuit, regardless of my own views about the merits of any particular precedent.

In my understanding, an “originalist” approach seeks to interpret constitutional provisions according to their original public meaning. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 581-87 (2008) (interpreting Second Amendment terms “Arms,” “keep,” and “bear” by using founding-era dictionaries and other sources); id. at 576-77 (observing that “[t]he Constitution was written to be understood by the voters,” and that constitutional interpretation therefore “excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation”) (internal quotations omitted). Where the Supreme Court has interpreted specific constitutional provisions by seeking to discern their original public meaning, I would fully and faithfully follow those precedents. See, e.g., Crawford v. Washington, 541 U.S. 36, 42-56 (2004) (interpreting Sixth Amendment’s Confrontation Clause according to founding-era understanding of English common law).

Please respond with your views on the proper application of precedent by judges.

When, if ever, is it appropriate for lower courts to depart from Supreme Court precedent?

It is never appropriate for lower courts—including federal circuit courts—to depart from binding Supreme Court precedent. Please also see my response above to Question 1.

Do you believe it is proper for a circuit court judge to question Supreme Court precedent in a concurring opinion? What about a dissent?

In rare circumstances, it may be proper for a circuit judge to question Supreme Court precedent in a separate opinion, provided that the opinion makes clear that the judge is nonetheless bound to follow all binding Supreme Court precedent regardless of the judge’s view of its merits. For instance, it may be proper in an appropriate case for a circuit judge to write a separate opinion pointing out legal doctrines the Supreme Court might choose to develop or lower-court conflicts the Supreme Court might choose to resolve. See, e.g., Lyons v. City of Xenia, 417 F.3d 565, 580-84 (6th Cir. 2005) (Sutton, J., concurring) (questioning Supreme Court’s then-controlling two-step requirement in qualified immunity cases); Allapattah Servs., Inc. v. Exxon Corp., 362 F.3d 739, 747 (11th Cir. 2004) (Tjoflat, J., dissenting from denial of en banc rehearing) (in light of “diametrically opposing” circuit court decisions, stating that “the Supreme Court should exercise its certiorari jurisdiction and resolve this circuit split”). In any event, it is the Supreme Court’s prerogative to develop its own jurisprudence; circuit courts, by contrast, are always duty bound to follow it.

When, in your view, is it appropriate for a circuit court to overturn its own precedent?

In the Fifth Circuit, a panel of circuit judges may not overrule a precedent of a previous panel. Consequently, the only circumstance in which the Fifth Circuit may overrule its own precedent is by taking the “extraordinary” step of hearing a case en banc. See, e.g., United States v. Castillo-Rivera, 853 F.3d 218, 227 (5th Cir. 2017) (Higginbotham, J., concurring) (explaining that, under the “‘rule’ of orderliness … one panel may not overrule another,” but that “[a] panel’s application of the stare decisis rule is always reviewable by an en banc proceeding”); 5th Cir. I.O.P., Petition for Rehearing En Banc (explaining that “[a] petition for rehearing en banc is an extraordinary procedure that is intended to bring to the attention of the entire court an error of exceptional public importance or an opinion that directly conflicts with prior Supreme Court, Fifth Circuit or state law precedent”).

When, in your view, is it appropriate for the Supreme Court to overturn its own precedent?

As a nominee to a lower federal court, it would be inappropriate for me to comment on what circumstances might justify the Supreme Court in overturning its own precedent. The Supreme Court has “the prerogative of overruling its own decisions.” Rodriguez de Quijas, 490 U.S. at 484.

When Chief Justice Roberts was before the Committee for his nomination, Senator Specter referred to the history and precedent of Roe v. Wade as “super-stare decisis.” A text book on the law of judicial precedent, co-authored by Justice Neil Gorsuch, refers to Roe v. Wade as a “ super-precedent” because it has survived more than three dozen attempts to overturn it. (The Law of Judicial Precedent, Thomas West, p. 802 (2016).) The book explains that “superprecedent” is “precedent that defines the law and its requirements so effectively that it prevents divergent holdings in later legal decisions on similar facts or induces disputants to settle their claims without litigation.” (The Law of Judicial Precedent, Thomas West, p. 802 (2016))

Do you agree that Roe v. Wade is “super-stare decisis”? Do you agree it is “superprecedent?”

A circuit judge must treat all Supreme Court precedent as “superprecedent,” in the sense that all of the Supreme Court’s decisions—including Roe v. Wade and Planned Parenthood v. Casey—are binding on all lower federal courts.

Is it settled law?

Please see my response above to Question 3(a).

In Justice Stevens’s dissent in District of Columbia v. Heller he wrote: “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States.

Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”

Do you agree with Justice Stevens? Why or why not?

I have not studied this particular issue. Regardless, my personal views would have no bearing on my role in deciding the constitutionality of any particular government regulation of firearms. As with any other issue that might come before me, my role would be to decide such questions based on a full and faithful application of controlling precedent. With respect to the interpretation of the Second Amendment, Heller is binding upon all lower courts and, if confirmed, I would apply that decision fully and faithfully.

Did Heller leave room for common-sense gun regulation?

Heller expressly stated that, “[l]ike most rights, the right secured by the Second Amendment is not unlimited”; it emphasized that “nothing in [the Court’s] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing  conditions and qualifications on the commercial sale of arms”; and, finally, it explained that “the sorts of weapons protected [by the Second Amendment] were those in common use.” 554 U.S. at 626-27 (internal quotations omitted).

Did Heller, in finding an individual right to bear arms, depart from decades of Supreme Court precedent?

I have not studied that question, and I understand that the majority and dissent in that case had different views of it. Regardless, Heller is binding upon all lower courts and, if confirmed, I would apply that decision fully and faithfully, just as I would apply all binding Supreme Court precedent.

In Obergefell v. Hodges, the Supreme Court held that the Constitution guarantees same- sex couples the right to marry. Is the holding in Obergefell settled law?

Obergefell “holds [that] same-sex couples may exercise the fundamental right to marry in all States” and “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” 135 S. Ct. 2584, 2607-08 (2015). Obergefell is a precedent of the Supreme Court and, like all other binding Supreme Court decisions, I would apply it fully and faithfully.

At your nomination hearing, Senator Leahy asked you a number of questions about an article you wrote in which you argued that the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), had “imperil[ed] civic peace.” You responded that you were simply making a “plea” for civic peace between those on the both sides of the same-sex marriage issue. While your article does highlight the importance of civic discourse and the “robust, free, and open exchange of ideas on controversial topics,” the conclusion you draw about Obergefell as an “abject failure” is plain: “[T]he decision imperils civic peace.” (Obergefell Fallout, in CONTEMPORARY WORLD ISSUES: SAME-SEX MARRIAGE (ABC-CLIO 2016)

In the more than two years since the Supreme Court held that there is a nationwide right to same-sex marriage, has Obergefell “imperil[ed] civic peace”? If your answer is “yes,” please describe how it has done so.

In the referenced article, I discussed the value of civic peace in terms of fostering mutual respect for both sides in any sensitive public debate. I expressed concern that such civility could be diminished by dismissing one side’s view in a harsh manner, as in my view certain pre-Obergefell lower court opinions appeared to do. See Obergefell Fallout, supra, at 135-36. The article went on to recognize that Obergefell did affirm the “decent and honorable” character of those holding traditional views of marriage, but the article expressed the view that the Court could have done more to defuse the strong feelings on both sides. Id. at 136-37.

Regardless of any views expressed as a legal commentator, however, my role as a judge would be to apply all Supreme Court precedents fully and faithfully (including Obergefell).

Have you expressed similar concerns about “imperil[ed] civil peace” regarding any other pending litigation you have worked on?

Not that I recall. For the context of that quotation, please see my response to Question 6(a) above. Whenever I have litigated sensitive legal issues over my twenty-year career, I have striven as an officer of the court to treat parties and counsel on the other side with respect, to avoid touching on political or personal matters, and to focus solely on the legal issues in the case. If I were confirmed as a judge, I would have an even greater duty to treat both sides of any dispute fairly and impartially and to decide cases based on objective legal rules and not my own personal preferences.

You delivered a speech in December 2014 to Brigham Young University’s chapter of the Federalist Society. According to speech notes that you provided to the Committee, you asked whether a trio of Supreme Court cases — Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safely — together established a fundamental right to marry. You also wrote: “Do these cases add up to a right to marry someone of the same-sex?

Well, ask yourselves this: do they add up to a right to marry your first cousin? A thirteen year old? If you say yes to the same-sex marriage question, don’t you also have to say yes to these other ones?

In what way is granting LGBT couples the right to marry equivalent to allowing someone to marry a thirteen-year-old or their first cousin?

The referenced speech was one given to law students in which I discussed the analysis in the Supreme Court’s decision in Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997), which requires courts to articulate a “careful description” of an asserted fundamental right and to ask whether that asserted right is “objectively, deeply rooted in this Nation’s history and tradition.” The rhetorical questions in my speech notes were merely designed to illustrate how a court might apply the Glucksberg analysis to the question eventually decided in Obergefell, namely whether a “careful” description of the fundamental “right to marry” recognized in previous decisions encompassed same-sex couples. The questions were not designed to suggest any answer one way or the other but instead simply to illustrate how the substantive due process analysis works.

In any event, Obergefell subsequently held that “same-sex couples may exercise the fundamental right to marry in all States.” 135 S. Ct. at 2607. That is a precedent of the Supreme Court that, if confirmed, I would apply fully and faithfully.

Do you believe that in light of Obergefell, state laws prohibiting individuals of a certain age from getting married or laws prohibiting certain family members from marrying each other are not constitutionally sound?

While Obergefell did not address such laws, the Supreme Court stated in Windsor v. United States, 133 S. Ct. 2675, 2691-92 (2013), that the marriage laws vary in some respects from State to State,” such as laws concerning “the required minimum age” as well as “the permissible degree of consanguinity.” To the extent that such laws touch on the meaning of Obergefell, such matters could potentially come before me if I were confirmed as a judge. Therefore, I am ethically precluded from offering any opinion under the canons of judicial ethics applicable to judicial nominees.

In 2015, you submitted an amicus brief in Obergefell v. Hodges on behalf of fifteen states, including Louisiana. You urged the Court to reject the argument that the Fourteenth Amendment provides a right to same-sex marriage nationwide. Among other arguments, you claimed that defining marriage in “man-woman terms . . . rationally structure[s] marriage around the biological reality that the sexual union of a man and woman — unique among all human relationships — produces children.”

In light of the arguments you advanced in your amicus brief, do you believe that only people who can have children should be legally able to get married?

In representing clients I do not advance my personal views, but the interests of my clients. The arguments advanced in the referenced amicus brief were the arguments of the amici States concerning possible justifications for those States’ marriage laws.

In any event, regardless of the arguments I made on behalf of clients in that case, the Supreme Court has now decided in Obergefell that “same-sex couples may exercise the fundamental right to marry in all States” and “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” 135 S. Ct. at 2607-08.

Obergefell is a precedent of the Supreme Court and, like all other binding Supreme Court decisions, I would apply it fully and faithfully as a judge.

Do you believe that fewer heterosexual couples have gotten married or have had children as a result of the legalization of same-sex marriage nationwide?

I have not studied the matter and have no basis to opine on it.

At your nomination hearing, I asked you about an amicus brief you submitted in Abbott v. Veasey, which involved a Texas law imposing a stricter voter ID requirement. In responding about your work on Abbott, you mentioned your work on another voting rights case as well—North Carolina v. North Carolina State Conference of the NAACP. Representing the state of North Carolina, you sought to defend a number of restrictive voting regulations, including a voter ID requirement, that the Fourth Circuit had found

“target[ed] African Americans with almost surgical precision.” (North Carolina State Conference of the NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016))  The Fourth Circuit likewise concluded that “the General Assembly enacted legislation restricting all — and only — practices disproportionately used by African Americans.” (Id. at 230)

Do you believe it is lawful and legitimate for states to enact electoral laws that target voting practices disproportionately used by members of one race?

The Supreme Court has made clear that the Constitution and numerous federal laws, including the Voting Rights Act, limit state regulation of elections. In both the Veasey and North Carolina cases, I represent or represented clients arguing that certain state election laws—including voter identification requirements—did not run afoul of these federal constraints. The arguments I made in those cases are good-faith arguments about facts and law, and, as with any legal representation, did not necessarily reflect my personal views on any particular voting or election laws. If confirmed, I would apply the binding precedents of the Supreme Court and the Fifth Circuit governing those issues, quite apart from any personal policy views I hold or any argument I previously made as an attorney representing a client. (Additionally, the Veasey case is still pending, and so it would be inappropriate for me to comment further on it as an attorney for an amicus).

At your hearing, I asked whether you believed that voter fraud was a problem, and you replied that you did not have a “personal view” on the matter, but that “ID laws can act prophylactically to prevent voter fraud.” In light of your claim, what evidence do you have that voter ID requirements can help “prevent voter fraud”?

In my answer, I was referring to the Supreme Court’s decision upholding Indiana’s voter identification law in Crawford v. Marion County Election Board against an Equal Protection challenge. See 553 U.S. 181 (2008). Justice Stevens’ plurality opinion explained that “[t]here is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters,” and that “the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process.” Id. at 196. Justice Stevens’ opinion also remarked that, whereas “[t]he record contains no evidence of any such [voter] fraud actually occurring in Indiana at any time in its history,” nonetheless “[i]t remains true … that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists[.]” Id. at 194-95.

In Abbott, you also argued that voter ID requirements “foster public confidence in elections — thus facilitating the peaceful, orderly transfer of power that is a hallmark of American democracy.” In your view, is the “peaceful, orderly transfer of power” possible without voter ID requirements?

Given that Veasey v. Abbott remains pending and I am counsel for an amicus in the case, it would be inappropriate for me to express a personal opinion on this matter.

How did you come to represent the state of North Carolina in North Carolina v. North Carolina State Conference of the NAACP?

I already represented the leaders of the North Carolina General Assembly in other litigation when they retained my firm to file a petition for writ of certiorari in this matter in the United States Supreme Court.

When you served as Louisiana’s Solicitor General, you defended the state in Connick v. Thompson, 563 U.S. 51 (2011). The facts of that case are quite troubling — a prosecutor deliberately withheld physical evidence that would have exonerated Thompson, who had been convicted of robbery and capital murder. After that exculpatory evidence was disclosed—and Thompson’s execution stayed—he sued the District Attorney’s (DA’s)

Office. A jury awarded Thompson $14 million on the theory that the DA had been “deliberately indifferent” to training prosecutors on their Brady obligations. The Fifth Circuit upheld the jury’s award, and Fifth Circuit, en banc, affirmed the panel decision.

You urged the Supreme Court to reverse, and argued that the DA’s office could not be held liable on this failure-to-train theory “absent a history of violations.” You also argued that as “trained professionals,” prosecutors in the DA’s Office were already “subject to a licensing and ethical regime designed to reinforce their duties as officers of

the court,” and “absent powerful evidence to the contrary, a district attorney is entitled to rely on prosecutors’ adherence to these standards.”  In a 5-4 opinion, the Court sided with you. In dissent, Justice Ginsburg wrote, “What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the [DA’s] Office bears responsibility under § 1983.”

If you are confirmed as a judge serving on the Fifth Circuit, you will consider appeals by individuals who allege that prosecutors committed Brady violations. What evidence can you offer the Committee that you take Brady violations seriously?

A prosecutor’s failure to disclose material exculpatory or impeaching evidence as required by the Supreme Court’s landmark decision in Brady v. Maryland, 373 U.S. 83 (1963), is a grave violation of a prosecutor’s ethical duties and seriously compromises an accused’s due process rights under the Constitution. There is no question that the facts of Connick v. Thompson were “quite troubling”—indeed, in the opening moments of my oral argument to the Supreme Court, I noted that Mr. Thompson had suffered “terrible injuries” because of prosecutorial misconduct. Tr. of Oral Arg. in Connick v. Thompson, No. 09-571 (U.S. Oct. 6, 2010), at 3:14. As your question points out, however, the Brady violation was not the legal issue before the Supreme Court, and the Court ultimately ruled in my client’s favor.

Connick was an extremely difficult case, and my experience in that case only reinforced for me the importance of a prosecutor’s Brady obligations to the fair administration of our criminal justice system. Since Connick, I have taught a Continuing Legal Education course to Louisiana prosecutors emphasizing the importance of Brady obligations, and I have provided those materials to the Committee. If confirmed as a judge, I would conscientiously apply Brady to claims that prosecutors may have failed in their constitutional obligations to disclose all material exculpatory and impeaching evidence to the accused.

The full Fifth Circuit upheld the jury’s award to Thompson, yet Louisiana chose to appeal that decision to the Supreme Court. Did you make the decision to seek Supreme Court review even after the Fifth Circuit had affirmed en banc? If so, what was your rationale? If not, whose decision was it?

The decision to seek certiorari in Connick was made by my client, the Orleans Parish District Attorney’s Office, in conjunction with my employer, the Louisiana Attorney General.

A brief filed on behalf of the respondent in the case on behalf of former DOJ civil rights officials from both Democratic and Republican Administrations stated that “Petitioners’ suggestion that no training is necessary because prosecutors are educated professionals blinks reality.” Do you still believe that prosecutors’ offices should not be required to train prosecutors specifically in the requirements of Brady, simply because prosecutors are officers of the court?

My client’s argument in Connick was never that a district attorney’s office has no obligation to provide its prosecutors with Brady training. Rather, the argument was that, where a rogue prosecutor deliberately buries obviously exculpatory evidence, the district attorney’s office cannot be vicariously liable for that malfeasance unless a pattern of similar Brady violations puts the office on notice. The Supreme Court agreed with my client’s argument. But the arguments I made on behalf of my clients in this case, like any other case, do not necessarily reflect my own personal views. Nor would they have any bearing on my role as a judge. If confirmed, I would fully and fairly apply Brady, Connick, and any other binding precedents of the Supreme Court.

On what basis did you conclude that the New Orleans District Attorney’s Office did not have a “history of [Brady] violations”?

I argued on behalf of my client that the record evidence in the case did not reveal the requisite pattern of previous Brady violations by the office required to put the district attorney on notice of a deficient training regime, an argument which the Supreme Court accepted in ruling for my client.

The miscarriage of justice in Connick very nearly led the state to execute a man who had not in fact committed murder. In your view, is it appropriate to provide financial remuneration for those who face such a monumental miscarriage of justice at the hands of a prosecutor’s office?

That is a policy question on which it would be inappropriate for me to comment as a nominee to federal judicial office. I am aware of a Louisiana statute providing compensation in such circumstances, and my understanding is that Mr. Thompson received compensation under the version of that statute in force at the time.

If you are confirmed, what steps will you take to ensure that all prosecutors understand—and fulfill—their obligations under Brady?

Please see my response above to Question 10(a).

At your nomination hearing, I asked you about your defense of Texas and Louisiana laws severely limiting women’s access to reproductive healthcare. Our exchange focused on those statutes’ admitting privileges provision, and I asked how admitting privileges enhance the safety of women. But the Louisiana law also had provisions concerning informed consent and reporting requirements for medication abortions.  In defending this statute, you argued that these provisions also made clear the law “focused on enhancing the safety of women seeking abortion.”

How do these informed consent and reporting requirement provisions enhance the safety of women seeking access to reproductive healthcare?

The litigation to which your question refers is still pending in federal court, and so it would be inappropriate for me to comment on it given that I remain counsel to a party in the case.

Beginning in 2016, you represented the North Carolina General Assembly in United States v. North Carolina, defending the state’s anti-transgender bathroom bill, known as HB2. In a brief that you submitted in that case, you made a number of claims about the dangers posed by allowing transgender individuals to use the restroom that corresponds to their gender identity. You wrote, for instance, that preventing HB2 from taking effect “would inflict upon North Carolina’s citizens a substantially increased risk of privacy violations and sex crimes that, in various ways, would invade their legitimate expectations of privacy and bodily security.”

How does allowing transgender individuals to use the bathroom that corresponds to their gender identity cause an increased risk of sex crimes?

The litigation to which your question refers is still pending in federal court, and so it would be inappropriate for me to comment on it given that I remain counsel to a party in the case.

What evidence did you rely on to support this argument?

Please see my response above to Question 12(a).

Do you continue to hold this belief?

Please see my response above to Question 12(a). In addition, I am acting as counsel for a party in that case, advancing not my own personal beliefs but legal arguments on behalf of my client’s interests, just as I have done in every case to the best of my ability.

You also represented the Gloucester County School Board before the U.S. Supreme Court after it implemented a discriminatory policy that required transgender individuals to use separate facilities—a policy that was struck down by the Fourth Circuit. In your brief, one of the rationales you provided for interpreting Title IX to prohibit treating transgender individuals in accordance with their gender identity is to preserve sex separation in athletics; your brief argued that “[s]ex separation in athletics only works, however, if ‘sex’ means physiological sex; if it means ‘gender identity,’ nothing prevents athletes who were born male from opting onto female teams, obtaining competitive advantages and displacing girls and women.” Are you aware of any cases where an individual has pretended to be transgender for the purpose of obtaining a competitive advantage?

Because the litigation to which your question refers is still pending in federal court, it would be inappropriate for me to comment on it given that I remain counsel to a party in the case. However, I can state that the sentence you quote from the Supreme Court brief in that case referenced a CBS news story from 2016 reporting that an “18-year old runner… [who] was born male and identifies as female” competed in “Class 3A girls’ sprints.” Petitioner’s Br. in Gloucester Cty. Sch. Bd. v. G.G., No. 16-273 (U.S. Jan. 3, 2017), at 41 (citing Transgender Track Star Stirs Controversy Competing in Alaska’s Girls’ State Meet Championships, CBS New York, June 8, 2016).

As Louisiana Solicitor General, you filed amicus briefs in Graham v. State of Florida, in which the Supreme Court considered the constitutionality of life without the possibility of parole (LWOP) sentences for juvenile offenders who commit non-homicide crimes, and Schwarzenegger v. Entertainment Merchants Association, which concerned a California law prohibiting the sale or rental of “violent video games” to minors.  You also submitted amicus briefs in Davenport v. American Atheists, which urged the Court to decide whether to abandon the “endorsement test,” used to determine violations of the Establishment Clause, and joined an amicus brief in Brown v. Plata, arguing that a three- judge panel had violated the Prison Litigation Reform Act (PLRA) by ordering the release of prisoners form  California’s overcrowded prisons.  In short, you have submitted many amicus briefs that pertained to other states’ statutes, or to matters that did not directly implicate Louisiana.

a.              As a general matter, how did you decide which amicus briefs to join or lead as Solicitor General of Louisiana?

The decision to join or lead in any multi-state amicus brief was ultimately made by the Louisiana Attorney General, based on his assessment of whether the issues presented in a particular case could potentially implicate the institutional interests of the State. As I recall, the briefs that Louisiana filed or joined during my tenure were virtually always joined by many other states and often by attorneys general from across the political spectrum. For instance, the amicus brief your question references in the Brown v. Plata case involving the California prison system was joined by five Democrat Attorneys General, including Delaware Attorney General Joseph Biden, III, Massachusetts Attorney General Martha Coakley, and Ohio Attorney General Richard Cordray. Similarly, the amicus brief your question references in the Schwarzenegger case involving California’s violent video games law was joined by six Democrat Attorneys General, including Senator Blumenthal when he was Connecticut Attorney General.

b.             Why did you decide to file or join amicus briefs in each of the cases listed in this question?

Please see my response above to Question 14(a).

You were the lead lawyer for Hobby Lobby when it challenged the Affordable Care Act’s contraceptive coverage requirement. Your Supreme Court brief argued, in part, that the requirement ran afoul of the Religious Freedom Restoration Act (RFRA), as applied to your clients, in part because the federal government had created an accommodation for other religious entities.  Your brief stated that “the exceptions for the religious exercise of other groups and grandfathered plans are devastating to the government…. They are devastating because RFRA itself demands that the government consider the feasibility of making exceptions to otherwise general rules in order to accommodate religious exercise.” Shortly thereafter, you represented the Eternal Word Television Network in Zubik v. Burwell, where you claimed that the accommodation itself was a violation of RFRA.

a.       Do you see any tension between the position you advanced in Hobby Lobby and the position you advanced in Zubik?

No. RFRA requires an analysis of the burden imposed by the government on the religious exercise of the specific religious adherent. To my recollection, as a for- profit corporation my client in Hobby Lobby was never offered an accommodation with respect to the mandate, and so whether any accommodation would have removed the burden on its religious exercise was never presented or decided in that case. By contrast, my client in the Zubik litigation was offered an accommodation by the federal government, but had a religious objection to that specific accommodation and, accordingly, took the position that RFRA required something different.

b.      Do you dispute that women’s access to preventative health services— including contraception—is a compelling state interest?

This is an open question. In Hobby Lobby the Supreme Court assumed without deciding that the federal government has a compelling interest in furthering women’s access to contraceptives through the mandate. Given that the issue is one that could come before me if confirmed as a judge, it would be inappropriate for me to express an opinion.

c.       The Zubik petitioners advocated a very broad theory of RFRA. As the Government’s brief stated, “Under petitioners’ view of RFRA, all such accommodations—indeed, any systems that require religious objectors to register  their objections—could be reframed as substantial burdens on religious exercise. A  conscientious objector to the draft could claim that ‘the act of identifying himself as such on his Selective Service card constitutes a substantial burden because that identification would then ‘trigger’ the draft of a fellow selective service registrant in his place. An employee who objects to working on the Sabbath could object to a requirement that he request time off in advance because the request would ‘facilitate… someone else working in his place.’” Do you disagree that the arguments you advanced in Zubik would have allowed virtually any religious accommodation to be reframed as a substantial burden on religious exercise?

I do not agree with that characterization of the RFRA arguments made on behalf of my clients in that case. In any event, regardless of the arguments I made on behalf of clients concerning RFRA (or any other statute), as a judge I would follow all binding precedents of the Supreme Court and the Fifth Circuit concerning RFRA (or any other statute).

At your hearing, you told Senator Leahy that you were not on any of the Supreme Court shortlists that President (or candidate) Trump have issued. Of course, the President also issued an updated Supreme Court shortlist on November 17, 2017, adding five new judges to the original list of 20 judges or justices that were on his 2016 shortlists.

a.       Has anyone at the White House or the Department of Justice spoken with you about potentially naming you to a Supreme Court vacancy?

No.

b.      Has anyone at the White House or the Department of Justice spoken with you about adding your name to a subsequent shortlist?

No.

c.       Have you spoken with anyone at the Federalist Society or the Heritage Foundation about being named to a Supreme Court vacancy, or adding your name to a subsequent shortlist?

No.

It has been reported that Brett Talley, a Deputy Assistant Attorney General in the Office of Legal Policy who is responsible for overseeing federal judicial nominations—and who himself has been nominated to a vacancy on the U.S. District Court for the Middle District of Alabama—did not disclose to the Committee many online posts he had made on public websites.

a.       Did officials at the Department of Justice or the White House discuss with you generally what needed to be disclosed pursuant to Question 12 of the Senate Judiciary Questionnaire? If so, what general instructions were you given, and by whom?

Without disclosing specific advice by any attorneys, it was my understanding that the instructions were to disclose responsive material truthfully and to the best of my ability.

b.       Did Mr. Talley or any other individuals at the Department of Justice or the White House advise you that you did not need to disclose certain material, including material “published only on the Internet,” as required by Question 12A of the Senate Judiciary Questionnaire? If so, please detail what material you were told you did not need to disclose.

It was and remains my understanding that I was required to disclose responsive material, including material “published only on the Internet,” and I have done so truthfully and to the best of my ability.

 

c.       Have you ever posted commentary—under your own name or a pseudonym— regarding legal, political, or social issues on public websites that you have not already disclosed to the Committee? If so, please provide copies of each post and describe why you did not previously provide it to the Committee.

It was and remains my understanding that I was required to disclose responsive material, including material “published only on the Internet,” and I have done so truthfully and to the best of my ability.

 

d.       Once you decided to seek a federal judicial nomination or became aware that you were under consideration for a federal judgeship, have you taken any steps to delete, edit, or restrict access to any statements previously available on the Internet or otherwise available to the public? If so, please provide the Committee with your original comments and indicate what edits were made.

No.

When is it appropriate for judges to consider legislative history in construing a statute?

My understanding is that, according to governing Supreme Court precedent, courts may have recourse to legislative history when the relevant statutory text is ambiguous. As a judge, I would fully and faithfully follow any binding precedents that relied on legislative history to construe a statutory provision.

According to your Senate Questionnaire, you have been a member of the Federalist Society since 2012. The Federalist Society’s “About Us” webpage, states that, “[l]aw schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.” The same page states that the Federalist Society seeks to “reorder[] priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors. In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.”

Please elaborate on the “form of orthodox liberal ideology which advocates a centralized and uniform society” that the Federalist Society claims dominates law schools.

I did not author that statement and am not aware of what its author meant by it. When I was in law school at Louisiana State University and Columbia University, and when I subsequently taught at the University of Mississippi Law School, I encountered a broad array of viewpoints on a variety of subjects from both law professors and students.

As a member of the Federalist Society, explain how exactly the organization seeks to “reorder priorities within the legal system.”

I did not author that statement and am not aware of what its author meant by it. My understanding is that the Federalist Society takes no position on specific issues but rather serves as a forum to encourage the informed presentation of a variety of viewpoints on matters such as the rule of law, the role of judges in our Constitutional system, and the separation of powers.

As a member of the Federalist Society, explain what “traditional values” you understand the organization places a premium on.

I did not author that statement and am not aware of what its author meant by it. In my experience, the Federalist Society takes no position on specific issues but instead encourages informed debate and discussion of matters such as the rule of law, the role of judges in our Constitutional system, and the separation of powers.

Please describe with particularity the process by which you answered these questions.

I received the questions from the Justice Department in the evening of Wednesday, November 6. I personally drafted answers to all of the questions, solicited comments from the Justice Department attorneys working on my nomination, and revised my draft answers as I deemed appropriate in light of those comments.

Judge (Stuart) Kyle Duncan – Nominee for the U.S. Court of Appeals for the Fifth Circuit

Kyle Duncan, nominated by President Trump to the Fifth Circuit, is an experienced Supreme Court advocate who has built a reputation by promoting conservative religious causes through litigation and advancing prosecution-friendly positions in criminal cases. In particular, Duncan has spent much of his recent career fighting to narrow protections for reproductive freedom and LGBT rights. While the Fifth Circuit is already a conservative court, Duncan’s confirmation would add a uniquely conservative perspective.

Background

Stuart Kyle Duncan was born in 1972 in Baton Rouge, Louisiana.[1] He graduated summa cum laude from Louisiana State University in 1994 and received his law degree in 1997 from the same institution, where he served on the Louisiana Law Review and was inducted into the Order of the Coif.[2] After receiving his J.D. in 1997, he clerked for Fifth Circuit Judge John M. Duhé, Jr., in Louisiana.[3] From 1998-2002 he had a series of relatively short stints in Texas as an associate working on appellate matters at Vinson & Elkins LLP in Houston; as Assistant Solicitor General in Austin; and as an associate at Weil, Gotshal & Manges LLP in Austin.[4] In 2002, he became an “Associate-in-Law” (preparing a teaching career) at Columbia Law School, receiving his L.L.M. from that institution in 2004.[5] He taught at the University of Mississippi School of Law from 2004-2008, then served as Appellate Chief (essentially the solicitor general)[6] for Louisiana’s AG’s office from 2008-2012.[7] After that he began what would become his most publicly notable work, serving from 2012-2014 as general counsel (leading the litigation team) for the Becket Fund for Religious Liberty,[8] a “non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.”[9] He left Becket in 2014 to open up his own shop, Duncan PLLC, which today exists as Schaerr Duncan LLP, where he continues work “in the same genre” as he handled “while in government practice and at Becket–namely civil and criminal litigation, typically concerning federal constitutional issues and primarily, but not exclusively, at the appellate level.”[10]

Duncan is a member of the ABA’s Committee on the Relationship of the Legislative, Executive, and Judicial Branches.[11] He is also a member of the Federalist Society (a conservative law and policy group whose membership has yielded numerous Trump nominees)[12] and of the Knights of Columbus,[13] “an international organization of nearly 2 million Catholic men whose principal work involves helping others in need.”[14]

Duncan was a poll watcher for Mitt Romney’s presidential campaign in 2012, and in 2016 he was a member of the religious liberty advisory board for Marco Rubio’s presidential campaign.[15]

History of the Seat

Duncan was nominated to a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit. The seat opened up with Judge W. Eugene Davis’s move to senior status on December 31, 2016. Because the seat opened up so late in the Obama Administration, no nominee was put forward until Duncan was nominated on October 2, 2017.

Legal Career

Duncan’s most notable representations in recent history have been in opposition to reproductive freedom and the rights of LGBT people. (Disclosure: In many of the cases cited below, the ACLU–for whom I work–was on the opposite side of the litigation.)

Since leaving the Becket Fund, Duncan has devoted considerable time in cases involving transgender rights. For example, Duncan represented a Virginia school board that refused to let transgender male student Gavin Grimm use the male restroom at school. The Supreme Court did not ultimately issue a merits determination in that case. Duncan also represented North Carolina’s speaker of the House and the president pro tem of the Senate in Carcaño v. McCrory, [16] a suit challenging North Carolina’s House Bill 2, which blocked transgender people from accessing restrooms and other facilities consistent with their gender identity and prevented local governments from protecting LGBT people from discrimination in a variety of settings, and HB 2’s replacement law, HB 142.

The plaintiffs in Carcaño, represented by the ACLU and Lambda Legal, contended among other things that denying transgender people access to restrooms consistent with their gender identity violates their rights under the Equal Protection and Due Process Clauses and Title IX.[17] In his intervention motion on his clients’ behalf, Duncan argued that the plaintiffs’ legal theory was “radical” and “subjects every North Carolina female” using public facilities “to a heightened risk of sexual predation” by men falsely claiming to be women.[18] In the motion, Duncan also repeatedly put quotation marks around words such as “woman” and “identify” and the phrase “gender identity.”[19] Despite Duncan’s characterization, the district judge, appointed by George W. Bush, entered a preliminary injunction as to the plaintiff’s Title IX claim,[20] in accordance with the increasing number of courts who are finding that similar restrictions preventing transgender students from accessing restrooms consistent with their gender identity violate Title IX and the Equal Protection Clause.[21]

Throughout the litigation, Duncan’s ultimate legal position–increasingly rejected by courts[22]–was that discrimination against transgender people is subject to the most lenient form of judicial review, rational-basis review. Moreover, Duncan rejects the application of the sex-stereotyping theory of sex discrimination (from the Supreme Court’s Price Waterhouse v. Hopkins case) to transgender people. At the preliminary-injunction hearing, Duncan argued that transgender women are not women and that transgender men are not men, and that laws like North Carolina’s don’t have anything to do with sex stereotypes. To Duncan, the cases applying Price Waterhouse to transgender people were those “where the discriminator has discriminated on the basis of mannerisms, or the appearance, the behavior of a person. Just to put it in plain terms, I’ve discriminated against a man because that man doesn’t act enough like a man,” or “[w]e don’t think a man should look like that.”[23] Duncan distinguishes North Carolina’s laws by saying that under those provisions, “[i]It doesn’t matter how you present as a man, it doesn’t matter how masculine you are, it doesn’t matter how high your voice it, it doesn’t matter. Men use the men’s bathroom. The same for women. That’s not sex stereotyping. That’s the opposite of sex stereotyping.”[24]

In addition to his work limiting transgender rights, Duncan has also fought the legal recognition of same-sex families. Duncan was counsel of record for the respondent in V.L. v. E.L., which concerned a lesbian couple’s second-parent adoption, which is an adoption by someone who is not the spouse of the child’s legal parent. (At the time of the adoption, V.L. could not legally marry biological mother E.L. in Alabama, but the two sought to raise their child together.) V.L. and E.L. secured the adoption in Georgia, but E.L. later tried to disrupt the arrangement by arguing that Alabama did not have to give full faith and credit to the Georgia court’s judgment. In his response to the cert petition, Duncan argued that the Georgia court lacked jurisdiction to grant the adoption, and therefore Alabama did not have to honor it.[25] Duncan criticized V.L. for “extravagantly” claiming that the Alabama Supreme Court’s decision “grossly deviates” from the Supreme Court’s full-faith-and-credit jurisprudence, and said she was overstating the harms that the Alabama court’s decision would cause.[26] Without granting oral argument, the Supreme Court summarily reversed in a unanimous decision, rejecting Duncan’s arguments, stating that under Georgia law, superior courts have subject-matter jurisdiction to decide “all matters of adoption,” and whatever the merits of the Georgia court’s judgment, that judgment was within that statutory grant of jurisdiction and had to be given full faith and credit.[27]

Perhaps Duncan’s most famous case was serving as party counsel to Hobby Lobby Stores and its owners in their eponymous challenge to the Affordable Care Act’s contraception mandate.[28] In Hobby Lobby, the Supreme Court struck down the requirement as to closely held corporations whose owners objected to providing contraceptive coverage on religious grounds.[29] Duncan’s subsequent forays into reproductive-freedom law included filing an amicus brief in the Supreme Court’s latest abortion case, Whole Woman’s Health v. Hellerstedt, on behalf of the Association of American Physicians and Surgeons, Inc.,[30] and representing his former boss–the State of Louisiana–in its defense of a challenge to its requirement–not unlike the one struck down in Whole Woman’s Health–that doctors performing abortions have admitting privileges at a nearby hospital. In that case, June Medical Services, L.L.C. v. Gee, the district court entered a permanent injunction earlier this year barring enforcement of the law,[31] and the case is on appeal for the second time to the Fifth Circuit.[32] Rejecting the foundation of the purported purpose behind these laws–women’s safety–the district court noted in its final order that Duncan “did not introduce any evidence showing that patients have better outcomes when their physicians have admitting privileges,” nor did he “proffer evidence of any instance in which an admitting privileges requirement would have helped even one woman obtain better treatment.”[33] The court continued:

In conclusion, there is no credible evidence in the record that Act 620 would further the State’s interest in women’s health beyond that which is already insured under existing Louisiana law. Indeed, the overwhelming weight of the evidence demonstrates that, in the decades before the Act’s passage, abortion in Louisiana has been extremely safe, with particularly low rates of serious complications, and as compared with childbirth and with medical procedures that are far less regulated than abortion.

Act 620 would do very little, if anything, to advance women’s health and indeed would, by limiting access to legal abortions, substantially increase the risk of harm to women’s health by increasing the risks associated with self-induced or illegal and unlicensed abortions.[34]

This is only a small sample of the major statutory and constitutional disputes in which Duncan has been involved. He represented a muslim inmate in the Supreme Court in a successful religion-based challenge to a state prison system’s beard-length rules (Holt v. Hobbs),[35] represented amici National Sheriffs’ Association and others in challenging President Obama’s DAPA order (Deferred Action for Parents of Americans and Lawful Permanent Residents) (United States v. Texas),[36] represented several state amici in contending that the Sixth Amendment does not require criminal defendants to be apprised of the collateral deportation consequences of a guilty plea (Padilla v. Kentucky),[37] represented several state amici in opposing marriage for same-sex couples (Obergefell v. Hodges),[38] represented the State of North Carolina in filing an unsuccessful cert petition attempting to overturn a Fourth Circuit ruling finding that the state violated the Voting Rights Act in making changes in election laws to target Black voters (North Carolina v. North Carolina State Conf. of the NAACP),[39] represented the State of Louisiana in unsuccessfully contending that Miller v. Alabama (prohibiting mandatory life sentences without parole for juvenile offenders) was not retroactive on state collateral review (Montgomery v. Louisiana),[40] successfully represented Louisiana in overturning a multi-million-dollar jury award against a prosecutor (Connick v. Thompson)[41], and supervised the representation of a Jewish prison inmate seeking a kosher diet (Rich v. Sec’y, Fla. Dep’t of Corrections, in the Eleventh Circuit),[42] among others.

Speeches/Writings

Duncan has been a prolific public commentator, and his views in the public sphere track those made in the courtroom. Indeed, most of Duncan’s writing is directed at litigation. He has written on Hobby Lobby (contraception),[43] Zubik (contraception),[44] Trinity Lutheran (religious funding),[45] Windsor and Obergefell (marriage for same-sex couples),[46] and others.

Duncan has written and spoken most often on the contraception mandate.[47] He predicted that the Affordable Care Act’s contraception mandate “could lead to future mandates that could encompass all manner of controversial practices from surgical abortion to euthanasia to sex-change surgery.”[48] Duncan also complained that the religious-employer exemption does not go far enough:

Who doesn’t get the exemption? Organizations that undertake projects such as educating students, treating the sick or feeding the poor. Because these groups leave the cloister, the government now declares their consciences unworthy of protection.

This kind of religious quarantine is patently unconstitutional.

Animating these measures is a sinister form of “tolerance” that should make religious Americans shudder. It is a cast of mind that relegates the genuinely religious to the margins of polite society. It tolerates countercultural views on sexual morality — provided they are kept safely out of sight.[49]

On marriage, Duncan says that Obergefell “threatens civic peace” because it “marginalize[s] the view of millions of Americans at exactly the wrong time, when standards of civil discourse are rapidly degenerating and when Americans seem increasingly to be forgetting the value of a robust, free, and open exchange of ideas on controversial topics.”[50]

On public displays on religion, he criticizes “militant atheist” groups that insist on “scour[ing] public life of all religious references” or sponsoring deities like the Flying Spaghetti Monster when such “scour[ing]” is not an option.[51] (Disclosure: I am currently co-counseling an unrelated religious-freedom case with the organization Duncan criticizes in the cited piece.) Defending a city’s purported right to sponsor a nativity scene but permit no other religious displays, Duncan explains: “Any government doomed to give ‘equal time’ to objectors whenever it speaks would collapse into incoherence. The postal service couldn’t issue a stamp honoring Martin Luther King, Jr., without also honoring the Ku Klux Klan. The National Holocaust Museum would have to include the Joseph Goebbels Wing. Lincoln’s statue would have to stare at a Jefferson Davis Memorial.”[52]

Duncan has also written a number of law-review articles. For example, one criticizes Flast v. Cohen, which permitted taxpayer standing to challenge Establishment Clause violations.[53] One analyzes and defends Justice Scalia’s dissent in the Ten Commandments case, McCreary County.[54] Another promotes the idea of tying Establishment Clause jurisprudence to the principle of “subsidiarity”–a “theory about the relationship among social structures, the common good and human dignity with a venerable pedigree in European political thought”; the theory, as explained in the article, is highly complex but ultimately leads to the result of a states’-rights approach to establishment questions.[55] And one article criticizes barriers to public religious funding and seemingly laments Supreme Court decisions that have “scoured public schools of all formal religious practice.”[56]

Overall Assessment

Kyle Duncan is an experienced appellate litigator with highly significant successes in the Supreme Court and lower courts. Both through his academic writings on religion-clause jurisprudence and through his litigation, Duncan has established his views on religious freedom, reproductive freedom, and LGBT rights. While some nominees assert that their work in an AG or SG’s office is not relevant because they were merely representing their government client, the assiduousness and consistency of Duncan’s post-government work at Becket and in private practice suggest that his representations track his own views. If confirmed to the Fifth Circuit, he would likely be a strong voice for narrowing statutory and constitutional protections for reproductive freedom and LGBT rights, while expanding the leeway allowed for citizens making religious objections to a wide variety of laws.

[1] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[2] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, 4-5, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[3] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[4] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2-3, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[5] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1-2, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[6] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[7] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[8] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[9] https://www.becketlaw.org/about-us/mission/.

[10] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1-2, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[11] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 4, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[12] https://fedsoc.org/.

[13] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 5, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[14] http://www.kofc.org/un/en/todays-knights/what-we-do.html.

[15] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 30, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[16] 1:16-cv-236-TDS-JEP (M.D.N.C.).

[17] https://www.aclu.org/legal-document/carcano-et-al-v-mccrory-et-al-complaint.

[18] ECF No. 34 at 2 (PDF p. 8), in 1:16-cv-236-TDS-JEP (M.D.N.C.)..

[19] ECF No. 34 at 2-3 (PDF pp. 8-9), in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[20] ECF No. 127, in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[21] E.g., Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016).

[22] E.g., Stone v. Trump, No. CV MJG-17-2459, 2017 WL 5589122 (D. Md. Nov. 21, 2017); Doe 1 v. Trump, No. CV 17-1597 (CKK), 2017 WL 4873042 (D.D.C. Oct. 30, 2017); Adkins v. City of New York, 143 F. Supp. 3d 134 (S.D.N.Y. 2015); see also Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016).

[23] ECF No. 103 at 87-88, in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[24] ECF No. 103 at 89, in 1:16-cv-236-TDS-JEP (M.D.N.C.) (emphasis added).

[25] Resp. to Pet. for Writ of Cert. at 2-3 (PDF. pp. 11-12), http://www.scotusblog.com/wp-content/uploads/2016/01/15-648-Brief-in-Opposition.pdf.

[26] Resp. to Pet. for Writ of Cert. at 9, 12-14 (PDF. pp. 18, 21-23), http://www.scotusblog.com/wp-content/uploads/2016/01/15-648-Brief-in-Opposition.pdf.

[27] 136 S.Ct. 1017 (2016).

[28] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[29] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[30] http://www.scotusblog.com/wp-content/uploads/2016/02/15-274-bsac-AAPS.pdf.

[31] ECF No. 274, in 3:14-cv-525-JWD-RLB (M.D. La.).

[32] No 17-30397 (5th Cir.).

[33] ECF No. 274 at 67 ¶ 230, in 3:14-cv-525-JWD-RLB (M.D. La.).

[34] ECF No. 274 at 70 ¶¶ 240, 242, in 3:14-cv-525-JWD-RLB (M.D. La.).

[35] Holt v. Hobbs, 135 S. Ct. 853 (2015).

[36] 2016 WL 1377728.

[37] 2009 WL 2564713.

[38] 2015 WL 1608213.

[39] http://www.scotusblog.com/wp-content/uploads/2017/01/16-833-cert-petition.pdf.

[40] 2015 WL 5064004.

[41] 563 U.S. 51 (2011).

[42] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 49, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[43] https://www.religiousfreedominstitute.org/cornerstone/2016/6/30/hobby-lobby-spells-doom-for-mandate-20.

[44] https://www.schaerr-duncan.com/supplemental-briefs-in-zubik-v-burwell.

[45] https://www.schaerr-duncan.com/trinity-lutheran-church-v-pauley.

[46] https://www.schaerr-duncan.com/symposium-overruling-windsor; http://www.thepublicdiscourse.com/2015/04/14894/.

[47] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 6-7, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[48] https://www.firstthings.com/article/2013/10/how-fares-religious-freedom.

[49] http://www.ncregister.com/daily-news/the-other-health-care-mandate-good-samaritan-turned-upside-down.

[50] Kyle Duncan, Obergefell Fallout, in Same-Sex Marriage: A Reference Handbook, 2nd Edition, at 132 (preview available on Google Books).

[51] https://www.schaerr-duncan.com/fighting-the-stupid-public-square.

[52] https://www.schaerr-duncan.com/fighting-the-stupid-public-square.

[53] Kyle Duncan, Misunderstanding Freedom from Religion: Two Cents on Madison’s Three Pence, 9 Nev. L.J. 32 (2008).

[54] Kyle Duncan, Bringing Scalia’s Decalogue Dissent Down from the Mountain, 2007 Utah L. Rev. 287 (2007).

[55] Kyle Duncan, Subsidiarity and Religious Establishments in the United States Constitution, 52 Vill. L. Rev. 67 (2007).

[56] Kyle Duncan, Secularism’s Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493, 497 (2003).

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2 COMMENTS

After such an illustrative account of the work of nominee Kyle Duncan, the question is if a judge with a career so marked by conservative ideas could be impartial and objective to observe and point out the lack of due process that an appellate court is bound to do, without being influenced by his own ideas and values.

And do all said before for the common good, taking consideration of the fundamental principles to impart justice to all the citizens of the 5th circuit or only watch and work over a small sector of them.

The answer seems clear, the court of appeals needs impartial and committed members, comitted whit legally, justice and the principles that emanate from the constitution and all the enmenments, and not members that develop interpretations to adjust their decisions, in order to persuit his own values and principles, or the ones for a small sector, instead of the citizens she or he most provide justice.

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