Former Hobby Lobby Attorney Argues Case for Seat on Fifth Circuit

WASHINGTON (CN) – The lawyer who led Hobby Lobby’s challenge to the federal health care law’s birth control mandate promised senators on Wednesday his past work for clients will not prevent him from being impartial if he is confirmed to a seat on the Fifth Circuit.

Kyle Duncan, whom President Donald Trump nominated to a vacant seat on the Fifth Circuit last month, told the Senate Judiciary Committee he has worked on issues that span the political spectrum both during his time in private practice and as Louisiana’s solicitor general.

“What I’ve done for a good part of my career is to make arguments for parties in litigation,” Duncan said Wednesday. “But I recognize there is a really fundamental difference between being a lawyer for a client, who is making arguments in the client’s interest or in the amicus’ interest, and being a judge.”

Duncan worked as general counsel for The Becket Fund for Religious Liberty from 2012 to 2014, where he served as lead attorney for Hobby Lobby in a challenge to the Patient Protection and Affordable Care Act’s mandate that employer-sponsored health insurance plans cover contraception. The Supreme Court sided with Hobby Lobby in the case, saying the mandate forced Hobby Lobby’s owners to violate their religious beliefs.

Liberals have been loudly critical of the case as favoring the rights of corporations over those of private citizens. Democrats pressed Duncan on Wednesday about the issue, with Duncan calling the Hobby Lobby case “difficult” and acknowledging the balance between religious liberty and private rights “cannot be absolute.”

Duncan’s legal career is littered with high-profile, highly controversial cases. He recently served as lead attorney for the school board that sought to prevent a transgender teen from using the bathroom of his choice. Duncan also filed briefs defended North Carolina in a challenge to a voter identification law the Fourth Circuit found targeted minority voters “with almost surgical precision.”

In addition, Duncan filed a friend of the court brief in a challenge to a Texas law that required abortion providers to have admitting privileges at a hospital within 30 miles.

Sen. Pat Leahy, D-Vt., said he thought Trump chose Duncan, a member of the conservative Federalist Society, in large part because of his conservative legal work.

“I suspect that you’re here because of your consistent advocacy for laws that ban same-sex marriage, limit transgender rights, allow religious organization to deny contraceptive coverage to their employees,” Leahy said.

Duncan defended against Democrats’ questions about his record by pointing out he worked both on cases that aligned with positions considered as conservative as well as on others that sought liberal outcomes. Duncan pointed out he worked on several cases involving the rights of religious prisoners, including one in Florida in which a prison system denied Jewish prisoners kosher meals.

“That means that I can see both sides of this issue, that balance that we’re talking about,” Duncan said. “What makes the right answer in those cases is the law, not the fact that somebody may have a religious belief.”

In addition to his work for the Becket Fund, Duncan also spent time as the solicitor general of Louisiana. Duncan had previous experience as a government lawyer, having worked from 1999 to 2001 as assistant solicitor general in Texas.

After leaving the Becket Fund, Duncan founded the law firm Duncan PLLC in Washington in 2014. The firm became Schaerr Duncan in 2016 and Duncan currently works there as a managing partner.

Duncan testified alongside Minnesota Supreme Court Justice David Stras on Wednesday and received the majority of the questions from senators. Most of the controversy surrounding Stras, who is up for a spot on the Eighth Circuit, came from the fact that he was appearing before the committee at all, considering Sen. Al Franken, D-Minn., did not give his approval as part of the Senate tradition known as the blue slip.

Sen. Chuck Grassley, R-Iowa, decided to go through with Stras’ hearing, effectively ending the tradition that senators from a circuit court judge’s home state will represent have a larger say in their confirmation process.

Stras has served on the Minnesota Supreme Court since 2010, having spent most of the rest of his career in academia. A member of the Federalist Society as well, Stras taught at the University of Minnesota Law School from 2004 to 2011 before Gov. Tim Pawlenty nominated him to the court in May 2010.

Trump included Stras on his short list of potential Supreme Court nominees, the most recent version of which listed Stras as already sitting on the Eighth Circuit.

Sen. Thom Tillis, R-N.C., compared Stras to the judge Trump ended up selecting to the Supreme Court, Justice Neil Gorsuch, saying his record reflected a conservative-minded judge. Stras clerked for Justice Clarence Thomas and told the Federalist Society in a speech last year he “grew up with a steady diet of Justice [Antonin] Scalia.”

Franken asked Stras whether he shared Thomas’ skepticism of affirmative action laws, but Stras declined to answer, saying the rules that detail what public comments judges should make suggest he should not offer his personal opinion on such issues.

Before his hearing, The Leadership Conference on Civil and Human Rights wrote to senators urging them to oppose Stras’ nomination, citing, in part, a “troubling record of dissents.”

As an example, the group highlighted one case in which Stras departed from the majority by writing the Minnesota Supreme Court did not have jurisdiction to hear the government’s challenge to a trial court decision barring the prosecution from presenting expert testimony about the behavior of victims during sexual assault.

Sen. Amy Klobuchar, D-Minn., noted, however, that Stras sided with the majority in 94 percent of the cases he heard on the court. She did highlight one dissent in which Stras and a fellow judge held the majority ignored Fourth Amendment principles upholding the validity of a breathalyzer test police conducted without a warrant.

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