[Congressional Record Volume 164, Number 68 (Thursday, April 26, 2018)]
[Senate]
[Pages S2477-S2478]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      CONFIRMATION OF KYLE DUNCAN

  Ms. COLLINS. Madam President, this week I cast my vote in support of 
the nomination of Kyle Duncan to serve as a judge on the Fifth Circuit 
Court of Appeals. Mr. Duncan has been a successful trial and appellate 
attorney, as well as a law professor at the University of Mississippi 
School of Law. He was the assistant solicitor general for the State of 
Texas and the appellate chief for the State of Louisiana. He has tried 
cases at the State and Federal levels and has argued twice before the 
U.S. Supreme Court. The American Bar Association has reviewed his 
nomination and has rated Mr. Duncan ``well-qualified.''
  Some have criticized Mr. Duncan for his work on certain high-profile 
cases. Nearly all nominees for the Federal courts who come before the 
Senate have advocated for various positions. Some of them have been 
involved in controversial, high-profile cases. In considering a 
nominee's fitness to serve on the bench, we should consider whether 
they have the intellect, the temperament, and the respect for precedent 
to fairly and faithfully uphold the law.
  One case that Mr. Duncan litigated has been mischaracterized in a way 
that suggests he is biased against the LGBT community. Mr. Duncan's 
opponents argue that his work in V.L. v. E.L., in which the opposing 
party was a lesbian, demonstrates this bias. What these critics fail to 
mention is that Mr. Duncan's client was also a lesbian. The matter was 
a custody case involving two women in a same-sex partnership. As his 
cocounsel in the case, Randall W. Nichols, has described in a letter to 
the Senate Judiciary Committee, dated November 27, 2017:

       I note that some may criticize Mr. Duncan for representing 
     clients in the same-sex marriage litigation. It must not go 
     without notice that our mutual client, E.L., was a same-sex 
     woman asserting a strong, albeit ultimately unsuccessful, 
     legal argument. Mr. Duncan represented our mutual client 
     without once making an issue of her sexual orientation, 
     without once displaying any personal bias, and without once 
     indicating a desire to advance any agenda other than winning 
     the case for E.L.

  Mr. Duncan has testified to the Judiciary Committee that he would 
follow all applicable precedents of the Supreme Court and Fifth 
Circuit. He demonstrated his deference to precedent during his time 
representing the State of Louisiana. While the Supreme Court was 
deciding the Obergefell case on the constitutionality of same-sex 
marriage laws, Mr. Duncan was representing the State of Louisiana in a 
challenge to its marriage law. Following the Court's decision, the 
Fifth Circuit instructed the parties in the Louisiana case to explain 
whether Obergefell resolved the matter for the court.
  The very next day, Mr. Duncan filed a letter explaining that, despite 
Louisiana's disagreement with the Obergefell outcome, the Fifth Circuit 
must follow the new Supreme Court precedent and strike down Louisiana's 
law. While still representing the State, Mr. Duncan announced that 
married same-sex couples would be able to have both of their names on 
their children's birth certificates. Mr. Duncan's actions following the 
Obergefell decision demonstrate that he will respect precedent and 
faithfully follow the law.
  By contrast, in a similar case, the lawyers for the State of Arkansas 
continued to fight over whether Obergefell required States to issue 
birth certificates with the names of both same-sex spouses. Unlike Mr. 
Duncan, they resisted the Obergefell precedent all the way up to the 
Supreme Court and lost. That case, Pavan v. Smith, confirms that Mr. 
Duncan did the right thing in advising the Fifth Circuit to apply the 
Obergefell precedent.
  It is also noteworthy that the attorney who argued against Mr. Duncan 
in the Louisiana case strongly supports his nomination. In an opinion 
article published in ``The Hill'' on March 25, 2018, Paul Baier, who is 
now a law professor at Louisiana State University, describes Mr. Duncan 
as a ``magnificent nominee for the Fifth Circuit who ought to be 
swiftly confirmed.'' He goes on to describe Mr. Duncan's qualifications 
in the following way:

       I always appreciated and respected Kyle's advocacy for his 
     client and his respect for the humanity of the same-sex 
     couples who would be most affected by the case. While I 
     disagreed with many of his arguments, often emphatically, I 
     never found a trace of bias, bigotry, or any disrespect 
     towards the same-sex individuals in the case.
       Kyle knows well the difference between the advocate's role 
     for his client (in the same-sex marriage case, the State of 
     Louisiana) and what he would be called upon to decide as a 
     judge on the Fifth Circuit. I maintain this view of Kyle even 
     having faced off against him in the highly charged atmosphere 
     of same-sex marriage litigation. His ability to act as a 
     judge and not advocate will surely carry over to other 
     questions of public importance facing the Fifth Circuit.

  The advice and consent role given to the Senate in the Constitution 
is one of

[[Page S2478]]

the Senate's most solemn duties and one to which I give the utmost 
care. I apply no litmus test with respect to a nominee's personal 
beliefs, and have voted for judicial nominees whose personal views 
differ from my own, but evaluating whether a nominee possesses an 
ability to set aside emotion and personal views while applying the laws 
in a neutral and impartial manner is critical.
  In this regard, I believe Mr. Duncan will be faithful to the rule of 
law. He has pledged to the Judiciary Committee and to me that he will 
follow all precedents of the Supreme Court, and his actions in the 
Louisiana same-sex marriage case are evidence that he will do this, 
even if he disagrees with the outcome. I support his confirmation.

                          ____________________