WASHINGTON — U.S. Sen. John Kennedy praised some of 5th U.S. Circuit Court of Appeals nominee Kyle Duncan’s legal credentials at a Senate Judiciary Committee hearing Wednesday but questioned Duncan’s Louisiana ties and took shots at the White House’s handling of the nomination.
Kennedy has remained undecided on President Donald Trump’s nomination of Duncan for a seat on the federal appeals court, even as conservative groups and fellow Louisiana Republicans stepped up pressure on the senator to back the pick.
Duncan, a 45-year-old Baton Rouge native and LSU graduate, worked on appellate cases for the Louisiana Attorney General’s Office but has otherwise built much of his legal career outside the state and has lived and worked in Washington, D.C., for the past several years.
"He's one confused politician." Or John N. Kennedy was so portrayed, in a sharp commercial against him in the 2008 race for U.S. Senate. Kenne…
Duncan worked for the Texas solicitor general and taught at the University of Mississippi before moving to Washington, where he’s built a prominent reputation as a crusader on conservative social issues.
“I have received scores of phone calls from experienced, accomplished, whip-smart, pro-life, pro-religious liberty Louisiana lawyers and judges,” Kennedy said at Wednesday morning’s hearing, “who have asked me why I would support a Washington lawyer for this seat over them.”
Kennedy’s opening remarks echoed comments he made to a reporter with The Advocate on Tuesday, shortly after voting against a Trump nomination for the D.C. Circuit Court of Appeals, Gregory Katsas. Kennedy said Katsas’ nomination created a conflict of interest because of Katsas’ current work as an attorney for Trump.
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The Senate Judiciary Committee, which vets nominees for the federal judiciary, did not take a vote Wednesday on Duncan. A spokesman for Chairman Chuck Grassley, R-Iowa, said the date for a vote hasn’t been set yet.
Democrats on the panel grilled Duncan over his prominent role in a number of controversial legal culture-war battles in recent years, particularly his leading role in Hobby Lobby’s fight against covering contraception under employee health insurance plans.
Duncan successfully argued before the U.S. Supreme Court that the religious beliefs of the corporation’s owners should allow them to break a federal rule requiring health plans to cover birth control.
Duncan also weighed in during controversial court battles over voter ID laws in North Carolina and Texas, defended restrictive Louisiana and Texas abortion laws, and represented opponents of gay marriage.
That record has alarmed liberals and led staunch conservatives on the judiciary committee to praise Duncan. Kennedy said he welcomed those qualifications and called Duncan’s résumé “incredible.”
But Kennedy’s doubts about Duncan’s Louisiana connections appeared to linger throughout the hearing.
Asked how Kennedy should respond to those criticizing his Washington residency, Duncan noted he grew up in Louisiana and attended LSU for both undergrad and law school.
“But more to the point, I have spent a significant and … prime part of my legal career defending the laws the people of Louisiana passed,” Duncan said, referring to extensive appeals work he’s done for the state. “Those were not easy cases.”
Sen. Bill Cassidy, R-Louisiana, called Duncan a "Louisiana native son" while heaping praise on his legal record during an introduction to the committee. Cassidy also called Duncan’s involvement in the Hobby Lobby case “a badge of honor.”
The Fifth Circuit Court of Appeals is already known as possibly the most conservative federal appeals courts in the country, said Carl Tobias, a University of Richmond law professor who’s studied federal judicial appointments for more than two decades. The confirmation of Duncan — along with fellow Louisiana nominee Kurt Engelhardt and two conservative Texans — would further solidify a very conservative majority on the court, especially on social issues, Tobias said.
The Fifth Circuit deadlocked 7-7 on Tuesday over an effort by Louisiana to strip Planned Parenthood of Medicaid funding. The split let stand a lower court ruling stopping the Gov. Bobby Jindal-era effort to block funds over abortion services.
Among those gathered in the packed hearing room Wednesday were several prominent leaders of the national anti-abortion and conservative legal movements. Several of those groups have come out strongly in favor of Duncan’s nomination and, in mail campaigns and TV and radio ads, have increasingly singled out Kennedy’s reluctance to back him.
Like most nominees for federal judgeships, Duncan demurred when pressed by senators Wednesday on his personal and legal views on abortion and other contentious issues.
State Attorney General Jeff Landry called Duncan “the Neil Gorsuch of Louisiana” — referring to the conservative Supreme Court justice nominated by Trump earlier this year — in an op-ed published in The Hill newspaper Wednesday.
Mass emails and radio advertisements sent out by several groups urged Louisianans to contact Kennedy’s office in support of Duncan’s nomination. “The importance of this hearing cannot be overstated,” the Louisiana Family Forum wrote in an email to supporters. “The future of the federal bench is at stake if the Senate committee derails the confirmation of a well-qualified originalist whom we believe is destined for the U.S. Supreme Court."
Kennedy sought to deflect conservative criticism of his reticence during Wednesday’s hearing, repeatedly stressing his own “pro-life” and “pro-religious liberty” beliefs.
Instead, the senator painted his indecision over Duncan’s nomination as the result of a White House process that left him largely out of the loop and that potentially passed over Louisiana-based judges and attorneys for the job.
Kennedy criticized White House counsel Don McGahn — whose office handles presidential nominees to the federal bench — and suggested McGahn failed to adequately consult him on the choice of Duncan for a traditionally Louisiana seat on the 5th Circuit, which also has jurisdiction over Texas and Mississippi.
Traditionally, home-state senators — particularly those of the same party as the president — are consulted by the White House on federal judicial nominees and wield significant influence in the process.
“I first learned about Mr. Duncan’s nomination when I received a phone call — actually a series of phone calls — from Mr. Don McGahn,” Kennedy said. “Mr. McGahn was very firm that Mr. Duncan would be the nominee — to the point that he was on the scarce side, in one conversation, of being polite.”
McGahn later apologized for being rude, Kennedy said, but didn’t relent on his insistence that Duncan — considered a rising legal star among many on the religious right — would fill the seat.
Cassidy also described Duncan’s selection process in significantly different terms than Kennedy and said he submitted Duncan’s name to the White House — along with “two or three or four other people” — based on the recommendation from a committee Cassidy organized to sift through potential appointees.
“Senator Kennedy had a chance to look at those,” Cassidy said.
Duncan said in his opening remarks that it sounded like Kennedy had been “disrespected” in the process and apologized to Kennedy. The senator brushed it off, telling Duncan he had nothing to apologize for.
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