As I write this post, the Senate Judiciary Committee is holding a hearing on the nominations of David Stras and Kyle Duncan to, respectively, the Eighth Circuit and the Fifth Circuit court of appeals. Sen. Amy Klobuchar just finished a gracious introduction of Judge Stras, notwithstanding their ideological differences. You can watch the proceedings on the Committee’s website.
Stras and Duncan are the two nominees held up by the refusal of a home state Senator to return a “blue slip.” The Senators in question were Al Franken in the case of Stras and John Kennedy in the case of Duncan. Judiciary Committee chairman Grassley finally had enough of this obstruction and ordered that the hearing take place.
Franken’s obstruction was no surprise, but Kennedy’s surprised me. After all, Kennedy is a Republican and supposedly a conservative. Duncan is a conservative and well-qualified for the court, a reality Kennedy does not dispute.
Why, then, did Kennedy try to block Duncan’s nomination? As far as I can tell, it was, in essence, a matter of patronage. Duncan is not tight with Kennedy’s pals.
According to this report:
Kennedy said he’s impressed with the “pro-life and pro-religious freedom” qualifications of Duncan, a 45-year-old LSU law school graduate who has become a major Washington-based legal warrior on conservative social issues.
But Kennedy questioned Duncan’s ties to the state, saying he’s received “a lot of calls” from Louisiana attorneys and judges with extensive experience and comparable conservative credentials. Appointments to the federal bench are highly prized among lawyers and seats on appellate courts like the Fifth Circuit are lifelong ambitions for many.
In short, Kennedy apparently has bowed to disappointed office seekers.
Kennedy’s opposition might make sense if Duncan were a carpetbagger. He isn’t.
Duncan was born and raised in Baton Rouge and attended public schools in that city all the way through high school. I’m told that his entire extended family still lives in Baton Rouge. His wife is from Baton Rouge and, I’m told, two of his five children were born there.
Duncan received his undergraduate degree from LSU and his law degree from the LSU Law Center. He clerked for a Louisiana-based judge on the Fifth Circuit (the court to which he has been nominated).
From 2008-12, Duncan served as appellate chief of the Louisiana Department of Justice. As such, he argued numerous appeals on behalf of Louisiana in the Louisiana Supreme Court, the Fifth Circuit, and the U.S. Supreme Court
It’s true that Duncan works in Washington, D.C. But that’s because he was recruited by The Becket Fund for Religious Liberty which is based here (a block or so from where I used to work). In that job, he was lead counsel in Burwell v. Hobby Lobby Stores, Inc. which protected the conscience rights of business owners. He also successfully defended Louisiana’s marriage laws before the Fifth Circuit in Robicheaux v. Caldwell in the Fifth Circuit.
Louisiana’s other Senator, Bill Cassidy, backs Kyle Duncan. Opposing this stellar conservative because he’s not part of Louisiana’s in-crowd seems like the act of a political hack.
Sen. Kennedy now appears to be on the warpath when it comes to President Trump’s nominees. As I noted earlier today, he was the only Republican to vote against the outstanding Greg Katsas. He deems (or purports to deem) Katsas insufficiently honorable to recuse himself from cases in which he has a conflict of interest.
Kennedy also says he’ll vote against district court nominee Brett Talley “in a heartbeat.” Talley reportedly has never tried a case in court, so I can detect a reason for voting against him that doesn’t smack of hackery (Kennedy voted for Tally in committee, though, and then turned against him citing Talley’s non-disclosure of the fact that his wife, a well-known Washington lawyer who sat behind her husband during the hearing, is chief of staff for the White House counsel). However, I can’t help but wonder whether Kennedy’s opposition to Katsas and Talley is animated by the fact that he didn’t get his way on the Fifth Circuit nominee.
President Trump and some conservatives are fond of attacking Mitch McConnell for not getting things done. However, I blame GOP Senators, in particular the ones who are considered conservative.
It seems like there’s always something — a perceived slight or bee in the bonnet — that causes one or two of them to jump ship, or at a minimum, raise a stink. It was the same under the leadership of Bill Frist and Trent Lott.
You don’t see the same phenomenon on the Democratic side of the aisle. Senate Dems are a bloc. Senate Republicans are, in many cases, free-floaters — too often petty ones.
Fortunately, the two least conservative GOP Senators — Susan Collins and Lisa Murkowski — have held firm on judicial nominations. So at least that business is getting done.
Thus, Stras and Duncan very likely will be confirmed despite the efforts of Al Franken and John Kennedy to prevent it.