Polluting The Judiciary

judicial appointments for federal courts

Assuming a sufficient turnout of Democrats, Independents and Republicans horrified by Trump, much of the daily damage being inflicted by this administration can be rectified.

But some very real damage cannot be undone, and the evisceration of the role played by the federal courts in checking unconstitutional behavior by government is one of the most consequential.

We’ll be stuck for a generation with judges like Kyle Duncan–one of the many ideologues and bigots being nominated and confirmed to the federal bench.  

Lambda Legal has sent out an alert about Duncan:

Kyle Duncan, a lawyer who has built his career around pursuing extreme positions that target members of the LGBTQ community, has been nominated by Donald Trump for a lifetime appointment to the U.S. Court of Appeals for the Fifth Circuit.

A brief Google search confirms Lambda Legal’s warning. Duncan is best known as the lead lawyer in the infamous Hobby Lobby case, in which he argued successfully that closely-held corporations should be able to deny their employees insurance coverage for birth control.

A Louisiana news organization called the Bayou Brief described his career:

“(He) is staunchly and vociferously pro-life… (and he) is staunchly and vociferously pro-religious liberty,” Sen. John N. Kennedy, a Louisiana Republican, told colleagues. “I like that about him.”

When a lesbian mother was stripped of her parental rights after moving from Georgia, which recognized her rights, to Alabama, which did not, he argued to the United States Supreme Court in defense of Alabama, claiming, among other things, that the mother’s harms were “overstated.” In a per curium decision, he lost that case as well.

Just this year, he unsuccessfully attempted to convince the United States Supreme Court to uphold a North Carolina law that was specifically intended to make it more difficult for African-Americans to vote.

He has won some cases too, though. He successfully convinced a split United States Supreme Court that a district attorney- in this case, former Orleans DA Harry Connick, Sr.- cannot be held liable for certain violations committed by their prosecutors, even if those actions result in a man spending 18 years behind bars on a wrongful conviction.

It is clear from the reporting about Duncan that he is a skilled lawyer, albeit on behalf of what I consider “the dark side,” so I found it interesting–and baffling–that Duncan and his supporters on the religious right found it necessary to beef up his resume by mischaracterizing one of his former positions. The claim was that he had been  “Solicitor General” of Louisiana.

Carrie Severino of the Judicial Crisis Network repeated the same claim in a short column published in The National Review. “Kyle served four years as Louisiana’s first Solicitor General,” she wrote (emphasis added), “performing so well that he has since been called back to represent the state repeatedly as special counsel.” (Severino’s organization spent a small fortune promoting Duncan, even releasing a television ad on his behalf).

Among many others, Breitbart and the Heritage Foundation also described Duncan as the state’s very first Solicitor General.

There is no such office under Louisiana law.

“Captain Crunch has more of a real job than anyone claiming to be Solicitor General of Louisiana,” a lawyer with extensive experience in state government told The Bayou Brief, on the condition of anonymity, “because at least Captain Crunch is on a cereal box.”

While this transparent puffery suggests a lack of integrity–or at the very least, the sort of meticulous attention to accuracy that good lawyers possess–that’s the least of the problems we should all have when a committed culture warrior is elevated to the federal bench.

Lawyers advocating for their clients, or for their favored interpretation of the law or the constitution are entitled to be zealous (albeit not zealots). We expect judges to approach their jobs with a very different, far more disinterested “judicial temperament.”

If Senate Republicans cared about their obligation to the Constitution and their duty to “advise and consent,” ideologues like Duncan would not be confirmed. But the Senate GOP–described by former George W. Bush speechwriter David Frum as “lickspittles”–has abandoned even the pretense of independence or statecraft.

We the People are about to lose objective courts of law for a generation.

 

[Originally published at SheilaKennedy.net on February 11, 2018]

Sheila Kennedy is a former high school English teacher, former lawyer, former Republican, former Executive Director of Indiana’s ACLU, former columnist for the Indianapolis Star, and former young person. She is currently an (increasingly cranky) old person, a Professor of Law and Public Policy at Indiana University Purdue University in Indianapolis, and Director of IUPUI’s Center for Civic Literacy. She writes for the Indianapolis Business Journal, PA Times, and the Indiana Word, and blogs at www.sheilakennedy.net. For those who are interested in more detail, links to an abbreviated CV and academic publications can be found on her blog, along with links to her books..

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