WASHINGTON (CN) – The Senate on Tuesday narrowly confirmed President Donald Trump’s nominee to the Fifth Circuit, despite objections from liberals about his past work advocating in court against the federal health care law’s birth control mandate and other controversial social issues.
Kyle Duncan served as the top attorney in Hobby Lobby’s challenge to the Patient Protection and Affordable Care Act’s birth control mandate, with the court ruling in his client’s favor in August 2014. Duncan was the general counsel for the Becket Fund for Religious Liberty from 2012 to 2014 and worked on Hobby Lobby’s case as a member of the group.
Duncan also served as the attorney for a Virginia school board that sought to prevent a transgender high school student from using the bathroom of his choice at school. The Louisiana State University grad also defended the North Carolina General Assembly in a court fight over the state’s so-called “bathroom bill,” which eliminated anti-discrimination rules for LGBT people and prevented transgender men and women from using the bathroom of their choice in government buildings.
Democrats and activist groups also flagged Duncan’s work in court supporting several voter identification laws, including his defense of a North Carolina law that the Fourth Circuit found targeted “African Americans with almost surgical precision.”
Duncan also faced questions about a friend of the court brief he filed on behalf of 15 states in Obergefell v. Hodges urging the court not to find a constitutional right to same-sex marriage in the 14th Amendment.
While Democrats dug into these cases at Duncan’s nomination hearing and expressed serious concerns about his ability to be impartial on the bench, Duncan insisted his work as a judge would be different than his work as an attorney.
“What I’ve done for a good part of my career is to make arguments for parties in litigation,” Duncan said at his nomination hearing in November. “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.”
Nevertheless, Democrats loudly opposed his nomination, culminating in a 50-47 vote on his confirmation Tuesday afternoon. Only West Virginia Sen. Joe Manchin broke rank and voted to confirm Duncan.
California Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, said Duncan is the latest Trump nominee whose history of litigating in partisan cases calls into question the judiciary’s independence.
“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,” Feinstein said in a statement Tuesday. “That should trouble all senators. I fear Mr. Duncan’s confirmation to the Fifth Circuit will further diminish confidence in our judicial system.”
But Sen. John Kennedy, a Louisiana Republican who serves on the Senate Judiciary Committee, said Tuesday Democrats’ criticisms of Duncan were unfair because they ascribed to the lawyer the views of his clients.
“Mr. Duncan has developed an expertise in constitutional law problems and they ask him to litigate it,” Kennedy said on the Senate floor Tuesday. “They ask him to espouse their point of view. Not Mr. Duncan’s point of view, the client’s point of view. And it’s just not fair, Mr. President, 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.”
Duncan will fill a seat on the Fifth Circuit that has traditionally gone to a Louisiana nominee, though Duncan has worked in Washington D.C. since 2012.
A member of the conservative Federalist Society, Duncan worked as Texas’ assistant solicitor general from 1999 to 2001, before moving temporarily into private practice. He also spent time as a professor at the University of Mississippi School of Law and as an associate-in-law at Columbia Law School.
From 2008 to 2012, Duncan worked as the appellate chief in Louisiana’s Office of the Attorney General, which he explained in his committee questionnaire that he performed the role of a state solicitor general, though the more common title did not exist in Louisiana at the time.
From there, Duncan joined the Becket Fund for Religious Liberty before forming his own firm in 2014. Duncan has worked as co-founder and managing partner of the Washington firm Schaerr Duncan since 2016.