[Congressional Record Volume 164, Number 66 (Tuesday, April 24, 2018)]
[Senate]
[Pages S2369-S2372]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                     EXECUTIVE CALENDAR--Continued

  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. HASSAN. Mr. President, I rise today to oppose the nomination of 
Stuart Kyle Duncan to serve on the Fifth Circuit Court of Appeals.
  Our Founders established our court system as an independent arbiter 
that would protect the rights of every American and ensure equal 
justice under the law. For us to move forward, our democracy requires 
an independent and impartial judiciary.
  Unfortunately, the Trump administration has focused on nominating 
individuals to our courts who have extreme partisan agendas that would 
move us backward. This latest nomination is no different. Mr. Duncan 
has spent his career working to undermine the progress we have made 
toward building a more inclusive, more equal United States. Rather than 
working to include more people in our democracy, Mr. Duncan's law 
practice has seemingly been devoted to restricting people's rights and 
making life more challenging for some of the most marginalized among 
us. His dangerous record raises serious doubts about his ability to act 
impartially on the bench with regard to a number of key issues.
  In recent years, our Nation has made significant progress in 
advancing the rights of our LGBTQ family and friends, built on the 
principle that all people deserve the right to fully participate in the 
social, civic, and economic life of our community. At every turn, Mr. 
Duncan has been on the wrong side of history, working at the forefront 
in the fight against LGBTQ equality. He has been vehemently opposed to 
marriage equality, filing a legal brief to the Supreme Court arguing 
against the decision that was reached in the 2015 Obergefell v. Hodges 
case, later claiming that the decision ``raises a question about the 
legitimacy of the Court.'' He has even gone so far as to repeatedly 
claim that nationwide marriage equality, ``imperils civic peace,'' a 
statement that is both ridiculous and offensive.
  Mr. Duncan has fought against adoption rights for same-sex parents 
and has dismissed the real necessity for LGBTQ antidiscrimination laws.
  He has been unyielding in his attempts to undermine the rights of 
transgender individuals. In two major cases involving transgender 
rights, including the now infamous so-called ``bathroom bill'' in North 
Carolina, Mr. Duncan has been the go-to attorney, demeaning transgender 
people and even describing them as ``delusional.'' Given his history, I 
am deeply concerned that Mr. Duncan would be unable to act impartially 
if a case involving LGBTQ Americans were to come before the Fifth 
Circuit.
  I also have real concerns of Mr. Duncan's record when it comes to 
women's healthcare and their constitutionally protected rights because 
his record shows that he has been a consistent opponent of reproductive 
freedom.
  Mr. Duncan was the lead counsel in the backward Supreme Court Hobby 
Lobby decision, which allows employers to deny contraceptive coverage 
to women. He has long supported efforts to diminish women's access to 
their constitutionally protected right to an abortion, arguing in favor 
of a Texas law in Whole Woman's Health v. Hellerstedt that shut down 
abortion providers and was eventually rejected by the Court. He even 
contested the fact that contraceptives can be necessary to protect a 
woman's health and has challenged the importance of contraception to a 
woman's capacity to compete economically.
  Medical professionals prescribe contraceptives to women for a variety 
of health conditions, including conditions such as ovarian cysts, which 
can be debilitating and could threaten a woman's fertility. Moreover, 
women who use contraceptives to engage in family planning often have 
better health outcomes, as do their children.
  To compete economically on a level playing field, women must be able 
to make their own decisions about if or when to start a family. Studies 
have shown that women who have greater access to contraceptive coverage 
are better able to support themselves and their families and to be full 
participants not just in our economy but also in our democracy.
  Women must be recognized for their capacity to make their own 
healthcare decisions, just as men are. They must also have the full 
independence to do so. But it is clear that Mr. Duncan has a 
fundamental misunderstanding of the importance of reproductive freedom 
and ensuring that women are treated equally.
  On these key issues, Mr. Duncan lacks the impartiality and commitment 
to equal justice for every American that is needed to serve in a 
lifetime judicial appointment. This is particularly critical on the 
Fifth Circuit Court of Appeals, which covers States that lack critical 
protections for LGBTQ Americans and have a history of passing dangerous 
laws that have blocked women's access to healthcare. Marginalized 
individuals in the States in the Fifth Circuit and all Americans 
deserve judges who will always use sound judgment and objectivity and 
not operate with extreme ideological agendas.
  I will oppose Mr. Duncan's nomination to the Fifth Circuit Court of 
Appeals, and I urge my colleagues to do the same.
  Thank you.
  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.

[[Page S2370]]

  

  Mr. MENENDEZ. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MENENDEZ. Mr. President, I rise to speak in opposition to the 
nomination of Kyle Duncan to the Fifth Circuit Court of Appeals.
  Mr. Duncan has spent large portions of his legal career seeking to 
suppress the rights of immigrants, minorities, women, and the LGBTQ 
community. In short, his values are grossly out of touch with a modern 
and inclusive America.
  I can't say I am surprised that Mr. Duncan has been nominated by a 
President who has called Mexicans racists and drug dealers. President 
Trump and Mr. Duncan share the same extreme political ideology, 
especially regarding their view of immigrants. Mr. Duncan, in an amicus 
brief challenging the Deferred Action for Parents of Americans and 
Lawful Permanent Residents, wrote that permitting DAPA--the acronym for 
that program--to go into effect would exacerbate the problem of violent 
crime by unauthorized immigrants. This position advances the false and 
offensive narrative that a majority of immigrants are violent 
criminals. In fact, DAPA was a program that would have allowed the 
parent of a U.S. citizen or lawful permanent resident who had lived in 
the United States continuously for years and passed a criminal 
background check to remain in the United States with legal status and a 
work permit. This program was never implemented, but it would have kept 
families together, and to suggest it would have benefited criminals and 
threatened public safety is just plain wrong. It fits with the 
Republican Party's misleading and racist attacks on immigrants in this 
country.
  Mr. Duncan makes these arguments despite overwhelming evidence that 
immigrants commit less crime than native-born Americans, and numerous 
law enforcement entities have voiced their support for DAPA because the 
program actually advances public safety by encouraging cooperation and 
trust between immigrant communities and the police.
  A year after voicing his opposition to DAPA, Mr. Duncan submitted 
another amicus brief. This time he argued against the Deferred Action 
for Childhood Arrivals, known as DACA, claiming it was 
unconstitutional. So we know where Mr. Duncan stands in stereotyping 
immigrants, but Mr. Duncan is not just hostile to immigrants.
  He represented North Carolina in its defense of a discriminatory 
voting law, urging2 the Supreme Court to hear the case. In the brief, 
Duncan wrote, ``The Constitution does not allow the sins of Civil 
Rights-era legislators to be visited on their grandchildren and great-
grandchildren.'' Yet the Fourth Circuit Court of Appeals had found that 
the law was enacted with discriminatory intent and ``targeted African 
Americans with almost surgical precision.'' Mr. Duncan appeared to have 
clearly missed the point as to who the real victims were.
  In another voting rights case, Duncan argued that Texas's restrictive 
voter ID law helped to ``prevent voter fraud.'' Although this myth has 
been debunked over and over and over again, the Republican Party, 
President Trump, and Mr. Duncan continue to perpetuate this lie to the 
American people in an effort to suppress the voting rights of others.
  I would be remiss if I ended these remarks without noting Mr. 
Duncan's extremely troubling record on reproductive rights and his 
hostility toward the LGBTQ community. He has continuously fought to 
restrict women's access to contraceptives. In 2013, he criticized the 
Affordable Care Act's inclusion of contraceptives as an essential 
benefit for the health and economic success of society, particularly 
women.
  Given that he holds these views, it seems fitting that Mr. Duncan 
would serve as the lead counsel in Hobby Lobby v. Burwell, in which he 
argued that corporations have the right to deny contraceptive coverage 
to their employees. I am sure he was pleased when the Supreme Court 
agreed with him.
  Yet, when the Supreme Court handed down its decision in Obergefell v. 
Hodges, which recognized same-sex marriage as a fundamental right, 
Duncan said that such a decision ``raises a question about the 
legitimacy of the Court.'' This comment cuts to the core of my 
opposition to Mr. Duncan--his disregard and contempt for judicial 
precedent he disagrees with.
  Even before the Supreme Court considered same-sex marriage, Duncan 
warned that if the courts granted the right to same-sex marriage, then 
they might have to grant the right to marry a first cousin or a 13-
year-old. To clarify, this is a man who believes that the rights of a 
corporation to deny employees health benefits is perfectly 
constitutional. Yet granting the right to same-sex marriage will lead 
us down a road to child marriage.
  I know my colleagues are on a furious quest to pack the Federal bench 
with conservative judges--judges who hold outrageous views, views out 
of step with the American public. I do not trust, nor does his record 
suggest, that once Mr. Duncan puts on the judicial robe, he will uphold 
the rule of law for all Americans and not just those who share his 
ideological views.
  I do not believe he can be an unbiased jurist, and that is exactly 
why the President nominated him and his supporters will vote for him.
  I urge my colleagues to oppose the nomination of Mr. Duncan.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. BLUMENTHAL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BLUMENTHAL. Mr. President, I am here to oppose the nomination of 
Kyle Duncan to be a judge on the U.S. Circuit Court for the Fifth 
Circuit. The court of appeals for that circuit and every other in our 
country is supremely important not only to people who live in its 
direct jurisdiction but for all people of our country. Courts of 
appeals make decisions that are binding on district courts in that 
jurisdiction and also have an impact on other judges and courts 
throughout the country at every level.
  From day one, the Trump administration has made attacking basic civil 
liberties a guiding principle of the policies it supports, including 
its judicial nominees. It is inexcusably seeking to turn back the clock 
on the progress we have made. We fought back hard against these arcane 
and irrational policies, but President Trump's attempt to stack our 
courts with extremist judges may, in the end, have the most long-
lasting and devastating impact on our Nation. That is why I am here 
today, with many of my colleagues, to sound the alarm on Kyle Duncan. 
He has been nominated to this court, but he has made a career of 
seeking to turn back policies that protect the most vulnerable members 
of our country.
  He is out of mainstream. In fact, he is out of the stream entirely. 
His views are extreme, fringed, and, collectively, they make him unfit 
to be a judge on this court that I greatly respect. Out of respect to 
members of the court, we should confirm someone only if they meet high 
standards.
  Kyle Duncan has attacked the voting rights of minority groups--in one 
case, even defending a law that a Federal circuit court said targeted 
African-American voters with ``almost surgical precision.'' He has 
attacked the rights of same-sex couples, leading several efforts 
against marriage equality. He has attacked the rights of the 
transgender community to be safe in their schools and communities. He 
has attacked protections for Dreamers, making it harder for them to 
obtain documentation, such as simple driver's licenses.
  Over and over, he has attacked women's rights and women's health in a 
way that I think disqualifies him for this court. Like so many other 
nominees before him, Kyle Duncan is an anti-choice zealot who has shown 
time and again that he is more worried about pushing his personal 
ideology than faithfully upholding the Constitution. His views on 
women's rights and women's healthcare are more than morally repugnant; 
they are downright dangerous.
  In fact, Kyle Duncan has led the charge in defending unconstitutional 
and unnecessary laws that target abortion providers, attempting to 
legislate

[[Page S2371]]

them out of existence with little regard for the women who will be 
harmed as a result. These laws, which have spread around the country at 
an alarming rate, serve no medical purpose. They put barriers between 
women and the care they need and deserve. Twice--twice--Mr. Duncan has 
falsely argued that these restrictions targeting abortion providers in 
Louisiana and Texas were ``medically reasonable'' and based on ``solid 
medical ground.'' These laws were rightly struck down both times. 
Indeed, these laws are the opposite of medically reasonable. In no way 
are they based on medical ground. With this nominee's enthusiastic 
support, these unconstitutional State-level restrictions have 
proliferated, shutting down women's healthcare providers, delaying much 
needed care, and putting women's health at risk.
  Kyle Duncan's peddling of misinformation as a lawyer fighting for 
these unnecessary and unconstitutional abortion laws is frightening 
enough. Imagine what he could do on the bench.
  He has fought to undo historic healthcare victories provided by the 
Affordable Care Act's birth control mandate. As we know in this 
Chamber--and I think we need to acknowledge--this mandate has made a 
difference in the lives of an astonishing 64.2 million women who were 
able to access birth control with no out-of-pocket costs in the last 
year alone. This has given women greater power over their health, their 
well-being, their futures, their reproductive decisions, and their 
finances.
  Yet Mr. Duncan has attacked the birth control mandate repeatedly. He 
sought to leave a woman's right to access affordable healthcare to the 
whims of her employer. Worse, he has absurdly denied that contraception 
is healthcare at all and has said the idea of contraception as a right 
is ``disturbing.'' It is a constitutional right. To him, it is 
disturbing. What kind of a judge will he be?
  Despite what Kyle Duncan believes, birth control is healthcare. A 
woman's access to it is a right, and his false, ideologically driven 
assaults are wrong.
  I will oppose Kyle Duncan's nomination to the Fifth Circuit Court of 
Appeals, and I urge my colleagues to do the same.
  Thank you.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that I be allowed 
to complete my brief remarks before we vote on the nomination of Mr. 
Duncan.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Thank you.
  Mr. President, in a few minutes, we are going to vote on the 
nomination of Mr. Kyle Duncan for a position on the U.S. Court of 
Appeals for the Fifth Circuit.
  Mr. Duncan was nominated by President Trump. He has been vetted--
examined, if you will--extensively by the White House. He has been 
vetted--examined, if you will--extensively the Department of Justice. 
He has been vetted by the FBI. He has been vetted by the American Bar 
Association, and he has been vetted by the Senate's Judiciary 
Committee. All of those entities have found that he is qualified--
indeed, more than qualified--to sit on the U.S. Court of Appeals for 
the Fifth Circuit.
  If you look at his resume and his experience, you will understand 
why. Mr. Duncan clerked for the Honorable John Duhe on the U.S. Court 
of Appeals for the Fifth Circuit. As you know, Federal clerkships are 
highly coveted, but judges generally pick the top students and the top 
members of their class. Mr. Duncan was picked.
  He has an LL.M. from the Columbia University School of Law, one of 
the finest law schools in the world. Mr. Duncan is an honors graduate 
of LSU Law School and an honors graduate with a B.A. degree from 
Louisiana State University as well.
  He has argued over 30 cases in Federal and State appellate courts. 
Some lawyers never argue a single one. He has briefed, prepared, and 
argued some 30 cases.
  He served in the office of the attorney general in the State of 
Louisiana as appellate chief. He has represented my State in many high-
profile cases, and he also has experience as an assistant solicitor 
general in the attorney general's office in Texas.
  Those who know Kyle and who have participated in the vetting process 
know that he is articulate, a careful thinker, and has a deep 
understanding of the importance of the separation of powers, and for 
that reason, he has been supported by a bipartisan group of both 
current and former lawyers.
  I do not recognize the Kyle Duncan being described by some of my 
colleagues. I say this with all due respect. I think some of my 
colleagues, in criticizing Mr. Duncan, are confusing the role of the 
lawyer and the client.
  I used to practice law. When a client came to me and said ``Kennedy, 
I need you to represent me,'' I did what they asked in that particular 
lawsuit. If his position was lawful, I would say: OK, tell me what your 
problem is and what your arguments are, and I will look at it from my 
standpoint and maybe supply some additional arguments under the law. 
But when my client described to me his problem and his analysis of it, 
I can't remember a single time when I said: Oh, jeez, I don't agree 
with you. I don't like your politics. I just don't agree with your 
position. I could have, but that was not my role as a lawyer. So long 
as what my client was proposing was legal, my role as their lawyer was 
that they were entitled to legal representation. My role was not to 
substitute my judgment for theirs.
  I have listened to my colleagues' criticism of Mr. Duncan. They don't 
know what his beliefs are, with all due respect. They have said: Well, 
in this case, he said that, and in this case he said that, and in this 
case over here, he said that, as though it was his point of view. They 
were his clients' points of view.
  Mr. Duncan has developed an expertise in constitutional law. He is a 
senior partner in a boutique firm. That means, of course, as you know, 
a smaller firm that has a specialty here in Washington, DC. Clients 
from all over the country and from all over the world come to him with 
constitutional law problems, and they ask him to litigate. They ask him 
to espouse their point of view--not Mr. Duncan's point of view, but the 
client's point of view. It is just not fair, it seems to me, to 
criticize a lawyer for doing what he is bound by our code of ethics 
and, indeed, the law to do.
  If I didn't think Kyle Duncan would call the balls and the strikes 
based on the rule of law that we cherish in America, I wouldn't be 
standing here today, but he will. I would respectfully suggest that all 
of my colleagues put aside the politics, put aside whether they like 
President Trump, and look at this man for himself. What they will see 
is a very qualified, very successful lawyer who worships the rule of 
law and who will apply the law as this Congress and the U.S. Supreme 
Court have dictated.

  Thank you, Mr. President.
  The PRESIDING OFFICER (Mr. Daines). Under the previous order, all 
postcloture time has expired.
  The question is, Will the Senate advise and consent to the Duncan 
nomination?
  Mr. KENNEDY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Arizona (Mr. McCain) and the Senator from Kentucky (Mr. 
Paul).
  Mr. DURBIN. I announce that the Senator from Illinois (Ms. Duckworth) 
is necessarily absent.
  The PRESIDING OFFICER (Mr. Flake). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 50, nays 47, as follows:

                       [Rollcall Vote No. 82 Ex.]

                                YEAS--50

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Hyde-Smith
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     Manchin
     McConnell
     Moran
     Murkowski
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse

[[Page S2372]]


     Scott
     Shelby
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--47

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Donnelly
     Durbin
     Feinstein
     Gillibrand
     Harris
     Hassan
     Heinrich
     Heitkamp
     Hirono
     Jones
     Kaine
     King
     Klobuchar
     Leahy
     Markey
     McCaskill
     Menendez
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Smith
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden

                             NOT VOTING--3

     Duckworth
     McCain
     Paul
  The nomination was confirmed.
  The PRESIDING OFFICER. The majority leader.

                          ____________________