Conservative Christian legal warrior Kyle Duncan and Chief U.S. District Judge Kurt D. Engelhardt were nominated Thursday to the 5th U.S. Circuit Court of Appeals.
Duncan and Engelhardt would replace Judge Eugene Davis, of Lafayette, and another judge expected to take senior status next week. The New Orleans-based 5th Circuit hears appeals from Louisiana, Texas and Mississippi.
President Donald Trump also nominated two from Texas to the 17-seat appellate bench.
The president also nominated Barry Ashe, a partner in the New Orleans office of Stone Pigman Walther Wittmann, to a seat on the federal district court in New Orleans.
The president’s choices in Louisiana and around the country have solid conservative backgrounds and good legal credentials, though some nominees were not traditional picks, said Professor Carl Tobias, who teaches constitutional law at the University of Richmond and comments on legal issues in the national media.
“Judge Engelhardt is a fairly typical nominee, stepping up from the district court to the appellate court. Kyle Duncan is little more outside the box,” Tobias said, adding that none of those nominated Wednesday likely will receive Senate confirmation hearings before the end of the year because of the long line of judicial nominees ahead of them.
A Louisiana native, Duncan practices law in Washington, D.C., specializing in causes involving religious issues and the public sector.
He was hired by then Gov. Bobby Jindal to defend a constitutional challenge to a newly passed state law that required doctors who perform abortions to be affiliated with a hospital. Critics said the provision would significantly hamper legal medical procedures to terminate pregnancies.
Prior to forming a private law firm, Duncan was general counsel of the Becket Fund for Religious Liberty, a nationally recognized Washington D.C. public interest law firm.
Duncan is best known nationally for representing the Green family, who were evangelical Christians, and their company, Hobby Lobby. The company had challenged the requirement that it be required to provide employees insurance coverage for contraceptive services that they believed would cause abortions based on their religious beliefs.
“President Trump has been making outstanding nominations to the federal appellate courts, jurists who will exercise judicial restraint and refrain from legislating from the bench, such as Kyle Duncan, a noted litigator for religious freedom rights,” said Douglas D. Johnson, Senior Policy Advisor of the National Right to Life Committee.
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Michelle Erenberg, executive director of Lift Louisiana in New Orleans, was less bullish.
"We are very concerned about this nomination because he (Duncan) has taken extreme positions in cases he has litigated that would undermine criminal justice reform, access to birth control and the constitutional rights of women," she said. "It is highly unlikely that, if confirmed, he would leave his personal views and right wing agenda behind to uphold our constitutional rights."
LSU Professor Paul R. Baier disagrees.
“Will the same conservative advocacy find its way into his rulings?” Baier said Thursday. “I have great confidence that Kyle will be responsive to equal civil rights and not sweep them off the table. He follows the law.”
Baier taught Duncan constitutional law at LSU and later faced off against him in the Louisiana Supreme Court over a challenge to the state’s constitutional ban of gay marriage.
Duncan was on the state’s team. Baier represented the appeal of Angela Marie Costanza and Shanelle Brewer, a couple living in Broussard who were legally married in California in 2008.
“He (Duncan) can argue firmly and convincingly. Watch the (video) tape of the arguments, he was masterful,” Baier said. “He cites the law with conviction and his brief writing is great.”
Duncan argued that marriage is an ancient institution and that changing the definition by judicial decree went too far. The issue became moot when the U.S. Supreme Court ruled same-sex marriages are legal.
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Engelhardt joined the U.S. District Court for the Eastern District of Louisiana in December 2001 on the nomination of President George W. Bush. He became chief judge of the New Orleans-based court two years ago.
Justin Torres, who clerked for Engelhardt in 2008-2009, found it interesting that Trump tapped his old boss along with Duncan.
“The judge is no Twitter celebrity. He’s very modest, low key, with a very self-deprecating demeanor,” said Torres, who is now with King and Spalding’s Washington, D.C. office.
Engelhardt is a runner, participating in a half dozen long distance marathons every year. “That tells you a lot about him,” Torres said. “The marathon is all about self discipline and he is incredibly disciplined.”
Torres recalled Engelhardt as being a dogged researcher and careful reader, attempting to understand what the law meant and the situation before him.
“The way he thinks about judging is that he is adjudicating a dispute within the framework provided by the law,” Torres said.
Engelhardt oversaw compliance with consent decrees in decades-old desegregation cases out of Jefferson Parish. The complex issue was passionate, the rhetoric harsh.
Torres recalls Engelhardt setting up an email account to hear from parents and teachers. "He really wanted to know that he was getting the unfiltered opinion from the community," Torres said.
Recently, Engelhardt presided over a complex federal racketeering, narcotics, and firearm trial involving a gang known as the Young Melph Mafia that ended in guilty verdicts.
In September 2013, Engelhardt ordered a new trial for the five police officers convicted of killing a 17-year-old and wounding four others on the Danziger Bridge during the chaos that followed Hurricane Katrina. He cited the “truly bizarre actions” of federal prosecutors, who had conducted a public relations campaign to impugn witnesses. The 5th Circuit upheld his decision. The officers pleaded guilty and received reduced sentences.
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Prior to his judicial service, Engelhardt was a partner at Hailey, McNamara, Hall, Larmann & Papale in Metairie. He focused on commercial transactions and litigation.
Louisiana Attorney General Jeff Landry praised both nominations.
“Kyle has vast experience in complex constitutional cases, both civil and criminal. In every case, he demonstrates that is a consummate professional,” Landry said, adding that Engelhardt has demonstrated “sound judicial instincts.”
“President Trump made a commitment to put judicial conservatives on the bench – individuals who would respect the important role states play in our republican democracy. By nominating Kyle Duncan and Judge Engelhardt, President Trump is keeping that promise,” Landry said.