[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.
____________________