[Congressional Record Volume 164, Number 66 (Tuesday, April 24, 2018)]
[Senate]
[Pages S2365-S2369]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Mike Pompeo

  Mr. HATCH. Mr. President, as President pro tempore of the U.S. 
Senate, I ask my colleagues to join us in voting swiftly and 
unanimously in support of Mike Pompeo's nomination to serve as the next 
Secretary of State.
  Frankly, I am embarrassed by the naked partisanship that was on 
display during Director Pompeo's confirmation hearing. The Director 
deserves better than this. That his nomination was nearly sent to the 
floor without recommendation is an utter disgrace.
  This is a graduate of West Point and a man who served our Nation 
honorably as a cavalry officer in the U.S. Army. This is a talented 
litigator who graduated from Harvard Law School, where he served as 
editor of the Harvard Law Review. This is an accomplished businessman, 
a former Member of Congress, and the current Director of the Central 
Intelligence Agency. This is a man who is qualified to serve in every 
respect. Yet some of my colleagues wanted to block Director Pompeo's 
nomination on the grounds that he supports our President. Give me a 
break.
  To these colleagues, I say: Enough. Enough of the partisan games. 
Enough of the political grandstanding and self-serving sanctimony.
  Delaying this nomination undermines not only the reputation of this 
esteemed body but the very safety of our Nation. Obstructing Director 
Pompeo's confirmation would be a significant break from the bipartisan 
process that has characterized these kinds of nominations in the past 
and over my past 42 years.
  For example, when President Obama nominated Hillary Clinton to serve 
as Secretary of State, Republicans and Democrats set aside their 
differences without delay, confirming her nomination almost unanimously 
with a vote of 94 to 2. Just 4 years later, the Senate did so again 
when we confirmed John Kerry with a vote of 94 to 3.
  As Republicans, did we disagree with Secretary Clinton's and 
Secretary Kerry's views on a wide range of issues? Absolutely. But did 
those disagreements prevent us from confirming two preeminently 
qualified nominees? Absolutely not.
  As a case in point, when Secretary Kerry was confirmed in January 
2013, the Syrian civil war was raging, and many of us strongly 
disagreed with the Obama administration's policies in the Middle East. 
To my frustration and that of all my Republican colleagues, it seemed 
that Secretary Kerry's Syria policy differed little from his 
predecessor's, but rather than turn our dissenting votes into 
destructive votes, we voted almost unanimously for his confirmation.
  There was an understanding at the time that you paid deference to the 
President's nominees, even if you disagreed with them on certain 
policies. Today, that custom is under siege. It is under threat. If we 
are not careful, in the future, then partisanship will sure get the 
best of all of us.
  The partisan abandon with which some approached Director Pompeo's 
nomination is something that I fear the Founding Fathers would never 
have imagined, much less condoned. If we continue down this perilous 
path, a dangerous precedent will take root, making any nomination under 
any President at any time all but impossible.
  Our role as legislators is to challenge the views of our nominees and 
to hold them accountable. It is not, however, to discredit, defame, and 
destroy the reputation of a sitting Cabinet official. Nor is it to 
prevent from serving a man who is so manifestly qualified to serve. To 
engage in such political games at a time when our Nation faces growing 
threats abroad is not only irresponsible, but it is dangerous.
  So I say to my colleagues one last time: Confirm Director Pompeo.
  He has proven himself as Director of the CIA--one of the most 
demanding, high-pressure jobs in government. He knows the world and its 
secrets better than virtually anyone. Moreover, he understands the 
scale of the threats facing the United States. I know that. I think I 
am still the longest serving member of the Senate Intelligence 
Committee. Perhaps most importantly, he has earned the love and trust 
of the people he serves, boosting the morale of the Agency and 
reinvigorating its sense of purpose and mission. We are in desperate 
need of someone who can do the same at the State Department.
  Already, Director Pompeo has demonstrated he has the diplomatic skill 
to lead the State Department, setting the stage for negotiations 
between President Trump and Mr. Kim by establishing a back-channel line 
of communication with North Korea. He has also helped foster good 
relations with our foreign partners--a necessary skill for someone 
serving as our Nation's top diplomat.
  Simply put, there is no reason under the Sun that Director Pompeo 
should not receive every last vote in this Chamber.
  The way we treated Director Pompeo by nearly sending him to this 
floor without a recommendation was shameful. Indeed, the reputation of 
the Senate would have been tarnished were it not for the last-minute 
intervention of a few of my colleagues--in particular, Senator Chris 
Coons, for whom I have great admiration. He thinks for himself.
  I wanted to recognize Senator Coons today and thank him for his 
leadership. In a display of both compassion and bipartisanship, Senator 
Coons switched his ``no'' vote to ``present,'' ultimately allowing 
Director Pompeo to secure a favorable recommendation. Senator Coons did 
so as a gesture to Senator Isakson, who could not be present for the 
vote because he was delivering a eulogy at his best friend's funeral.
  This simple act of bipartisanship reminds me of the Senate I used to 
know--the institution that lived worthy of its name and reputation as 
the world's greatest deliberative body. Senator Coons' vote brought us 
back from the precipice overlooking a partisan abyss. It was a timely 
reminder that this body is at its best when we put comity and respect 
ahead of partisanship. Senator Coons' gesture was characteristic of the 
person I know him to be--a class act, a loyal friend, and a true 
gentleman of the Senate.
  May we all take a cue from yesterday's bipartisan display. Our 
treatment of Director Pompeo in committee was embarrassing, to say the 
least, but now we have a second chance. Now we have the opportunity to 
set things right by voting unanimously for his confirmation. I urge all 
my colleagues to do what is best for the Senate and the Nation by 
voting in favor of Director Pompeo's nomination.
  Let's get rid of this total partisanship around here. I think both 
sides are to blame, in some respects. I don't mean to just be picking 
on Democrats here today, but when somebody with the quality of Director 
Pompeo is seeing this type of treatment on the floor of the U.S. 
Senate, my gosh, what are we becoming? All I can say is, it is not 
right.
  This is a chance to reform and make it right. I hope we will do that. 
If we don't, we have to find a way of getting together. We have to find 
a way of supporting whoever is President, who nominates people who are 
qualified and who are good people, regardless of whether we agree with 
them ideologically.
  The fact is, this Senate has become a very partisan body. There are 
times to be partisan. There is no question about that, and all of us 
have felt those times from time to time. My gosh, should we be this 
partisan on somebody like Secretary Pompeo, who clearly is one of the 
finest nominees I have seen in the whole time I have been in the U.S. 
Senate?
  I hope my colleagues on both sides will vote for him and give him the 
respect, the support, and the help he is going to need in this 
position. We all know he is going to be confirmed. The question is, 
Will he be confirmed with the support of all of us Senators who really 
think of these things and who really care for our country, who really 
believe in bipartisanship, who really believe that regardless of 
differences of politics and opinion, class acts like Mr. Pompeo should 
be supported?

[[Page S2366]]

  I yield the floor.
  The PRESIDING OFFICER (Mr. Cruz). The Senator from Michigan.
  Mr. PETERS. Mr. President, today the Senate is considering a divisive 
nominee to sit on the Fifth Circuit Court. It completely baffles me 
that this administration continues to put forth nominees who are either 
clearly unqualified or intensely partisan and controversial. This body 
has historically worked together to confirm consensus nominees to serve 
on the appellate bench. Unfortunately, that has not been the case over 
this past year. We have seen contentious nominee after contentious 
nominee. Unfortunately, the Republican majority has abdicated its 
responsibility to instead choose a judicial person of integrity who is 
willing to find common ground.
  This afternoon's vote to confirm Stuart Kyle Duncan to the Fifth 
Circuit Court is a perfect example of a divisive candidate. Mr. Duncan 
is an extreme nominee. His nomination is a senseless attack on access 
to healthcare for women, especially women in rural and underserved 
areas. His nomination is an attack on LGBT civil rights and an attack 
on free and open access to the ballot for all Americans.
  One only needs to look at his record. Mr. Duncan served as lead 
counsel in Hobby Lobby v. Burwell, in which the Supreme Court ruled 
that a for-profit corporation can have religious beliefs and, 
therefore, can deny contraceptive coverage as part of their employer-
sponsored health insurance plans.
  I have said this before, and I will say it again, I have never sat 
next to a corporation in church. Corporations do not have religious 
beliefs, and a woman should have access to reproductive health services 
and the freedom to make her own decisions about her own healthcare.
  In addition to his record of hostility to the self-determination of 
women, Mr. Duncan has an abysmal civil rights record. Mr. Duncan 
coauthored an amicus brief in opposition to marriage equality when this 
important issue was before the Supreme Court. In that same vein of 
discrimination, Mr. Duncan has repeatedly engaged in efforts to 
suppress the votes of minority voters. He has defended North Carolina 
voter suppression measures that were ultimately struck down by the 
Fourth Circuit. The court determined the discriminatory measures 
``targeted African-Americans with almost surgical precision.''
  Mr. Duncan's nomination is, frankly, unconscionable. Our court system 
should be a level playing field, where no matter who you are or where 
you live, you will receive fair and equal treatment. In contrast to 
that spirit, this nominee has spent a significant part of the past 
decade advocating for the denial of rights for women, minorities, and 
the LGBT community.
  I have absolutely no confidence that this nominee will stay true not 
only to the letter of the law but to the spirit of the law as well. Our 
constituents sent us to Washington to look out for the best interests 
of all Americans. That is why we need to move away from divisive 
nominees and instead focus on the confirmation of qualified consensus 
nominees. It is clear Mr. Duncan is out of step with mainstream 
American values, and I urge my colleagues to join me in opposing his 
nomination.
  I yield the floor.
  Mr. DURBIN. Mr. President, I rise in opposition to the nomination of 
Kyle Duncan to serve on the Fifth Circuit Court of Appeals.
  Mr. Duncan's record shows that he is far outside the judicial 
mainstream. He has a history of ideological opposition to important 
civil and constitutional rights. There are many examples of Mr. 
Duncan's extreme views. I will discuss several of them.
  First, Mr. Duncan has a track record of outright hostility toward the 
Supreme Court's Obergefell decision and the rights of the LGBTQ 
community.
  When the Obergefell case was pending before the Supreme Court, Mr. 
Duncan wrote an article where he described the plaintiffs in the case 
as, ``profoundly mistaken.'' He went on to write: ``It is often asked 
by proponents of same sex marriage what harms would flow from judicial 
recognition of their claims. From the perspective of democratic self-
government, those harms would be severe, unavoidable, and 
irreversible.''
  After the Obergefell plaintiffs won and the Supreme Court recognized 
the right to same-sex marriage, Mr. Duncan wrote another article where 
he described the Obergefell decision as ``an abject failure'' and said 
the case ``imperils civic peace.''
  When he was before the Judiciary Committee, I asked Mr. Duncan in 
writing if he agreed that same-sex marriage is now settled law. He 
ducked the question.
  This surprised me. Even President Trump conceded in November 2016 
that same-sex marriage is ``already settled. It's law. It was settled 
in the Supreme Court,'' but Mr. Duncan would not acknowledge that 
point.
  I also asked Mr. Duncan in writing if he would pledge not to take 
steps to undermine the Supreme Court's Obergefell decision if he were 
confirmed. He did not respond to that question either.
  Make no mistake, Mr. Duncan's advocacy against LGBTQ rights goes 
beyond arguments that he advanced on behalf of clients. He has 
repeatedly advocated against LGBTQ rights when writing in his own 
personal capacity about his own views.
  Mr. Duncan also has a troubling record of hostility to voting rights.
  He joined with another extreme Trump judicial nominee, Thomas Farr, 
to represent the North Carolina Legislature in seeking Supreme Court 
review of the Fourth Circuit's decision to strike down North Carolina's 
2013 voter suppression law.
  This is the notorious law that the Fourth Circuit said targeted 
African-American voters with ``almost surgical precision.'' The Fourth 
Circuit decried this law as ``the most restrictive voting law North 
Carolina has seen since the era of Jim Crow.''
  Mr. Duncan's brief argued that the Fourth Circuit's decision was ``an 
affront to North Carolina's citizens and their elected 
representatives.'' Fortunately, the Supreme Court denied Mr. Duncan's 
cert petition.
  Mr. Duncan also wrote a brief defending a Texas voter ID law that the 
Fifth Circuit ruled had violated the Voting Rights Act. Mr. Duncan's 
brief cited the specter of voter fraud to support his argument that 
this law was necessary.
  I decided to ask Mr. Duncan a simple question about voter fraud. I 
asked him in writing what he thought of President Trump's wholly 
unsubstantiated claim that 3 to 5 million people voted illegally in the 
2016 election.
  His response? He said ``I am constrained by the canons of judicial 
ethics from commenting on political matters.''
  Why would we put someone on the Federal bench who thinks a false 
claim about millions of illegal voters in the 2016 election is a 
``political matter''? Why couldn't Mr. Duncan bring himself to say that 
President Trump's statement was blatantly false?
  Mr. Duncan's views on voting rights are troubling, so much so that 
Derrick Johnson, president of the NAACP, sent a letter saying that 
``President Trump's nomination of Mr. Duncan to the Fifth Circuit is a 
brazen insult to the civil rights legacy of this court.''
  There are many other issues where Mr. Duncan has advocated for 
positions that are far to the right of the center stripe.
  In 2014, he gave a speech where he discussed the Supreme Court's 
right-to-marry cases, including the landmark decision Loving v. 
Virginia, and said to the audience, ``Ask yourselves this: do they add 
up to a right to marry your first cousin? A thirteen year old?''
  Mr. Duncan also filed briefs in opposition to the DACA program and 
the proposed DAPA program, which he claimed ``would greatly increase 
the risk of unauthorized immigrants committing serious crimes.'' His 
arguments perpetuated a stereotype of immigrants as criminals that is 
simply not borne out by evidence.
  Mr. Duncan represented Hobby Lobby in its Supreme Court case, where 
he argued that for-profit corporations have religious rights that 
permit them to circumvent the law and refuse to provide contraceptive 
coverage to their employees.
  The NAACP has described Mr. Duncan's record on criminal justice 
issues as ``abysmal.'' They noted his efforts to overturn a wrongful 
conviction verdict based on prosecutor misconduct, as well as his 
defense of inhumane conditions in severely overcrowded prisons.
  What kind of message does it send when the Republican Party goes out 
of

[[Page S2367]]

its way to nominate people like Mr. Duncan who have expressed such 
hostile views on issues of fundamental civil rights such as the right 
to marry and LGBTQ rights?
  There are plenty of well-qualified Republican judicial candidates who 
do not have a track record of taking extreme ideological views. Why 
choose someone like Mr. Duncan? What kind of signal does that send to 
litigants who might argue before the Fifth Circuit?
  It is possible to find highly qualified, nonideological candidates 
for the Federal bench, nominees whom both parties can be proud of. We 
have done that with the two pending Illinois nominees to the Seventh 
Circuit. I wish that had happened with this Fifth Circuit vacancy, but 
unfortunately, that is not the case.
  I cannot support Mr. Duncan's nomination, and I will vote no.
  Mrs. FEINSTEIN. Mr. President, I rise today in opposition to the 
nomination of Kyle Duncan to a Louisiana seat on the Fifth Circuit.
  Mr. Duncan, a Washington, DC, based lawyer, has made a career 
advocating for ideological causes. He has a long record of arguing to 
undermine the rights of women, voters, LGBT Americans, and immigrants.
  Before I speak more in depth about Mr. Duncan's record, it is 
important to step back and look at the big picture on President Trump's 
judicial nominees.
  Mr. Duncan's nomination is part of the Trump administration's larger 
effort to remake Federal circuit courts with young, ideological 
nominees who are often far outside of the mainstream or, in some cases, 
who are unqualified.
  In just the last 15 months, we have seen a nominee confirmed to the 
D.C. Circuit who worked in the White House counsel's office on issues 
likely to go to the court he was appointed to, including on the White 
House's responses to the Russia investigation.
  As one Republican Senator said, this now-judge's ``conflict of 
interest'' was something ``a first-year law student would see.''
  We have seen a nominee confirmed to the Sixth Circuit who blogged 
under a pseudonym and expressed extreme views and relied on rightwing 
sources known for discredited conspiracy theories. For example, he 
wrote in a blog post that the ``two greatest tragedies in our country 
are ``slavery and abortion.''
  We have seen a nominee to the Eighth Circuit who was the first 
judicial nominee to receive a unanimous ``not qualified'' from the 
American Bar Association because of concerns about the nominee's 
judicial temperament and ability to be impartial and still get 
confirmed on a party-line vote.
  Unfortunately, Mr. Duncan is just the latest nominee with a 
controversial, partisan record that calls into question his ability to 
be an independent, neutral arbiter appointed to a lifetime position.
  We must not allow our courts to be undermined by politics instead of 
rooted in independence. The courts are a constitutionally created 
coequal, independent branch designed to be an independent check on 
Congress and the Executive.
  Unfortunately, that independence is under attack.
  The President has personally attacked judges who have ruled against 
him.
  He has also repeatedly declared that he has litmus tests for judicial 
nominees, pledging that he would only nominate individuals who pass 
ideological litmus tests.
  Our system depends on Federal judges who are independent arbiters and 
follow the facts and the law wherever they lead.
  Given this, I have been deeply troubled by efforts to stack our 
Federal courts by jamming controversial nominees through as quickly as 
possible. Federal judges serve for life, and it is critically important 
that parties who come before them are confident that their case is 
given a fair shot, that it is being evaluated on the merits.
  If you look at Mr. Duncan's record, he cannot demonstrate that women, 
LGBT Americans, and immigrants who appear before him in court would 
have an impartial arbiter.
  That should trouble all senators. I fear Mr. Duncan's confirmation to 
the Fifth Circuit will further diminish confidence in our judicial 
system.
  Specifically, Mr. Duncan has been at the center of efforts to roll 
back women's access to basic healthcare.
  Mr. Duncan served as one of the lead lawyers for Hobby Lobby in a 
case challenging the Affordable Care Act's protections for women's 
access to contraception. Duncan advanced the argument that a 
corporation's religious beliefs trump a woman's right to contraceptive 
coverage in her health insurance plan.
  More than 99 percent of American women have used contraception; it is 
more common than a flu shot.
  Access to contraception contributes to improved health for women and 
babies, including reduced rates of prematurity. The expansion of 
contraception has also strengthened women's financial security by 
allowing them to plan when to start a family.
  Mr. Duncan also argued in favor of a severely restrictive anti-choice 
law in Texas, which would have closed 75 percent of women's health 
clinics that offer comprehensive reproductive health services.
  While medical experts, including the American College of 
Obstetricians and Gynecologists, unanimously agreed that these 
requirements were not needed to protect women's health, Mr. Duncan 
argued against the science.
  Even the conservative Supreme Court rejected Texas's false pretense 
of protecting women and ruled that this law forced doctors and health 
centers to meet medically unnecessary requirements.
  The Supreme Court held the law did not provide greater protection for 
women's health and that it was an unconstitutional undue burden on 
women's reproductive rights.
  Mr. Duncan was also at the center of Republican efforts to 
disenfranchise African-American voters through discriminatory voter ID 
laws.
  After the Fourth Circuit struck down North Carolina's voter ID law, 
noting that it ``targeted African Americans with almost surgical 
precision,'' Duncan urged the Supreme Court to reverse that decision.
  In his petition to the court, he wrote that, ``The Constitution does 
not allow the sins of Civil Rights-era legislators to be visited on 
their grandchildren and great-grandchildren.''
  Shockingly, this statement ignores the persisting racism in this 
country and argues that the challenges faced by disenfranchised voters 
are simply a thing of the past.
  What is worse, this argument is made about the right to vote. The 
U.S. Constitution enshrines the right to vote as one of our most 
foundational rights.
  Mr. Duncan has also repeatedly argued against recognizing same-sex 
couples' right to marry.
  When the Supreme Court ruled in favor of marriage equality in 
Obergefell, Mr. Duncan declared the decision ``imperil[ed] civic 
peace.''
  That is an extreme statement that is simply untrue. Far from 
imperiling peace, our country has evolved and embraced this ruling 
peacefully.
  I asked Mr. Duncan whether he still believes that this important case 
has ``imperil[ed] civic peace'' in the years since it was decided. Mr. 
Duncan did not disavow his statement and would not answer my question.
  Lastly, we are a nation of immigrants. Since its founding, the United 
States has been built on the backs of people from all over the world 
coming here to build a better life for themselves and their families.
  Less than 2 years ago, in 2016, Duncan argued to the Supreme Court 
that allowing undocumented parents of U.S. citizen children to live and 
work would, ``exacerbate the problem of violent crime by unauthorized 
immigrants.''
  Again, Mr. Duncan makes an assertion with no basis in fact. Rather, 
research shows that immigrants commit fewer crimes than native born 
Americans. The conservative Cato Institute found that immigrants have a 
lower rate of incarceration than native-born Americans.
  While I do not expect to agree with the views of all the judicial 
nominees that come before the Senate, I do expect the nominees to be 
within the mainstream of legal thought. I do expect the nominees to 
uphold basic facts, science, and constitutional principles.
  I fear that Mr. Duncan's record puts him outside these basic 
qualifications, and I cannot support his nomination.

[[Page S2368]]

  

  Mr. PETERS. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. WARREN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. WARREN. Mr. President, it is no secret that powerful interests 
are working to undermine our government. Giant companies and rightwing 
billionaires have been pouring unlimited sums of money into making sure 
our government works for those at the top and leaves everyone else 
behind, and a key part of their strategy is to capture our courts.
  During the Obama administration, those powerful interests and their 
Republican allies in Congress executed an unprecedented campaign to 
stop fairminded, impartial nominees from filling judicial vacancies. 
Nominees weren't blocked because they were unqualified. They weren't 
blocked because they were inexperienced. They weren't blocked because 
they were out of the mainstream. They were blocked for one reason and 
one reason alone: because they didn't demonstrate a sufficient 
willingness to bend the law in favor of the rich and the powerful.
  With Donald Trump as President, these same interests sense a once-in-
a-lifetime opportunity to reshape our courts for years to come, and 
they are working to stack our courts with narrow-minded elitists and 
rightwing radicals. Stuart Kyle Duncan--President Trump's nominee to 
sit on the Fifth Circuit Court of Appeals--is one of those nominees.
  Mr. Duncan has spent his career working to restrict--not to expand, 
but to restrict--civil rights in the United States. Over and over 
again, he has sought to tilt the scales of justice against women, 
against LGBTQ Americans, against people of color, and others. Mr. 
Duncan's record of supporting discrimination and injustice is quite 
lengthy, so I will focus on just a few of the most disturbing examples. 
Let's start with his record on women's rights.
  Mr. Duncan has worked to make it harder for women to access 
contraceptive coverage and abortion services. He was the lead attorney 
for the arts and crafts company Hobby Lobby in the Supreme Court case 
of Burwell v. Hobby Lobby. In that case, he argued that business owners 
should be allowed to refuse to provide female employees access to 
contraceptive care based on those employers' religious views.
  Mr. Duncan also filed briefs in many other Supreme Court cases, 
petitioning the Court to restrict women's access to birth control and 
abortion services, ignoring the fact that access to contraceptive care 
can help women lead better, healthier, or more financially secure 
lives. He is the man who is seeking a Federal judgeship.
  Let's take a look at his record on LGBTQ rights. Mr. Duncan has 
complained about what he calls the ``general acceptance of 
homosexuality and homosexual practices'' in America, and he has worked 
very hard to convince courts to adopt his narrow-minded view of the 
world.
  In the landmark Supreme Court case that legalized same-sex marriage 
nationwide, Mr. Duncan filed briefs, asking the Court to reach the 
opposite result. After the Supreme Court handed down those historic 
decisions, Mr. Duncan, who, today, expects to be confirmed as a Federal 
appellate judge, claimed that the decision would jeopardize civic peace 
and openly questioned the Supreme Court's legitimacy.
  Mr. Duncan also represented the Gloucester County School Board in its 
effort to deny Gavin Grimm, who is a transgender high school boy, the 
ability to use the boys' bathroom. He represented North Carolina's 
General Assembly in a lawsuit that challenged the assembly's bathroom 
bill banning transgender and gender-nonconforming individuals from 
using restrooms that are consistent with their gender identities.
  In his asking courts to allow government-sanctioned discrimination in 
these cases, Mr. Duncan has completely ignored scientific evidence and 
medical expertise. Instead, he has asserted that transgender 
individuals are mentally ill. In one case, he argued that there was no 
sound scientific evidence proving that individuals who identify as 
transgender are not delusional.
  In case after case, Mr. Duncan has defended discrimination and 
injustice.
  On voting rights, he defended North Carolina's discriminatory voter 
ID law that a Federal court concluded targeted African-American voters 
with almost ``surgical precision.''
  On immigration, he filed briefs that opposed the Deferred Action for 
Childhood Arrivals Program, DACA Program, which allowed Dreamers to 
contribute to our schools, our communities, and our economy without 
their having the constant fear of deportation.
  On criminal justice, he fought to block the retroactive application 
of the Supreme Court's decision that ruled it is unconstitutional to 
sentence kids to life without parole.
  Time and again, Mr. Duncan has been on the wrong side of justice and 
has worked to undermine the civil rights of groups that have 
historically faced discrimination.
  Federal judges have one job and one job only--to dispense equal 
justice under law. That means everyone--man or woman, gay or straight, 
Black or Brown or White--should have confidence that the judges we hand 
lifetime appointments to will put fairness and fidelity to the law over 
their personal feelings or political ideologies.
  Stuart Kyle Duncan has made it perfectly clear that he cannot and 
will not meet that standard. That is why I will be voting to reject Mr. 
Duncan's nomination, and I urge every Senator who believes in the 
principle of equal justice under law to do the same.
  Thank you.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I come to the floor to oppose Kyle 
Duncan's nomination to serve on the Fifth Circuit Court of Appeals.
  A review of Mr. Duncan's record--his cases and chosen causes--shows 
he is a dangerous, ideological nominee who has consistently been on the 
wrong side of women's rights, LGBTQ rights, and civil rights. Let's 
start with Mr. Duncan's record that argues against women's rights and 
reproductive freedom.
  When he served as the lead counsel in the infamous Hobby Lobby case, 
he argued that an employer can interfere with a woman's personal 
healthcare choices.
  In Texas, he filed a brief that was in favor of abortion restrictions 
that would have shut down the vast majority of clinics in that State--
restrictions the Supreme Court, ultimately, ruled an ``undue burden'' 
on a woman's constitutional right to a safe, legal abortion.
  In my home State of Washington, he filed a brief that argued 
pharmacies should be allowed to refuse to fill birth control 
prescriptions for ideological reasons. Fortunately, his views did not 
prevail.
  Then there is Mr. Duncan's long record of opposing LGBTQ rights.
  When it comes to the rights of same-sex couples, he argued against 
two loving parents who wanted to change their baby's birth certificate 
so they could add him to their insurance plan. He argued for denying a 
same-sex spouse her parental visiting rights to the children she had 
raised for 8 years. He also defended bans on same-sex marriages in 
Louisiana and Virginia.
  When the Supreme Court was considering whether to strike down bans on 
same-sex marriage nationwide, he said the harm of doing this would be 
``severe, unavoidable, and irreversible,'' and he filed an amicus brief 
against it. When the Court then made its historic decision to recognize 
same-sex marriage as a fundamental right, Mr. Duncan said it ``raises 
questions about the legitimacy of the Court.'' He said it might 
``imperil civic peace.''
  When it comes to the rights of transgender people, he fought for the 
intolerant, harmful bathroom ban in North Carolina and against Gavin, a 
young boy in Virginia who simply wanted his school to allow him to use 
the men's restroom. He did it by using bigoted remarks that were 
nothing short of appalling.
  In defending the outrageous ban in North Carolina, he relied on bogus 
testimony from a self-proclaimed expert who suggested that transgender 
people

[[Page S2369]]

are delusional. In his opposing Gavin in Virginia, Mr. Duncan advanced 
the offensive and discredited conspiracy theory that schools need to 
fear athletes who pretend to be transgender in order to gain a 
competitive advantage.
  Outside of the court, outside of his client work, he has repeatedly 
addressed an organization that has been designated as a hate group by 
the Southern Poverty Law Center--an organization that calls marriage 
equality an ``oxymoronic institution if ever there was one.''
  There are other red flags about his commitment to defending civil 
rights.
  For example, when the Supreme Court ruled that mandatory life 
sentences for minors were unconstitutional, he argued the ruling 
shouldn't apply retroactively.
  He argued that prisons that are packed to double their capacity were 
not in violation of the Eighth Amendment's ban on cruel and unusual 
punishment. The Supreme Court disagreed, noting the problem caused 
``needless suffering and death.''
  In a case involving an innocent man who had spent 14 years on death 
row--an innocent man--Mr. Duncan argued that the district attorney's 
office was not at fault for failing to train a staff member who had 
withheld evidence.
  When it comes to one of the fundamental rights in a democracy--the 
right to vote, the right of the people to choose their government 
officials--Mr. Duncan defended a racially tailored voter ID law in 
North Carolina, which the courts ultimately struck down for targeting 
African Americans with ``almost surgical precision.''
  Any one of these cases Mr. Duncan has chosen to take should raise 
alarm, and any one of the ideological arguments he has made should 
cause concern. Yet all of them together paint an unmistakable picture 
of a nominee who would not uphold women's rights, LGBTQ rights, or 
civil rights.
  To paraphrase one of his own statements, if confirmed, I believe the 
damage Mr. Duncan will do to people by putting his ideology over their 
rights will be severe, unavoidable, and irreversible. I oppose his 
nomination. I urge all of my colleagues to join me.
  Thank you.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. LANKFORD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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