This week, the Senate Judiciary Committee considered two of President Donald Trump’s best nominations to date—Kyle Duncan for the 5th U.S. Circuit Court of Appeals, and David Stras for the 8th U.S. Circuit Court of Appeals.
Committee Chairman Charles Grassley, R-Iowa, scheduled the hearing over the protest of Sen. Al Franken, D-Minn., who refused to return his blue slip on Stras’ nomination.
After holding out, Sen. John Kennedy, R-La., returned a modified blue slip for Duncan, indicating that Duncan should receive a hearing but not announcing whether he supports the nomination.
Blue Slip Blues
The president nominated Stras in May, along with several other nominees who have now been confirmed to the bench. Upon learning that a judge from his home state had been nominated, Franken expressed dismay over not being consulted by the White House. (The White House, however, has a different story.)
At the hearing, Franken complained that Grassley had failed to honor the traditional use of blue slips and the process for selecting nominees (a sentiment echoed by Sens. Dianne Feinstein, D-Calif., and Amy Klobuchar, D-Minn.).
Franken repeatedly referenced the Federalist Society and The Heritage Foundation, saying, “the groups picking the judges, they know what they’re getting.”
Franken and some other senators seem to be mistaken about who actually picks nominees. For the record, it’s the president and his team in the White House Counsel’s office—not senators or organizations like ours.
Franken was correct about one thing, though, when he said we know what we’re getting with Duncan and Stras. These nominees both have extensive records of impressive legal experience and public service, some of which they talked about at the hearing.
Sen. Ted Cruz, R-Texas, was quick to defend Grassley’s decision to proceed with a confirmation hearing for Stras in the absence of a blue slip, noting that in the 100-year history of blue slips, only two Senate Judiciary Committee chairmen (Sens. James Eastland, D-Miss., and Patrick Leahy, D-Vt.) refused to schedule hearings in the absence of both home-state senators returning positive blue slips.
Cruz also mentioned the fact that Franken objected to Stras for being “in the mold” of Justices Clarence Thomas and Antonin Scalia and for being a member of the Federalist Society. These were not reasons to deny him a hearing.
Turning from squabbles over Senate procedure to asking the nominees actual questions, senators aimed most of the questions at Duncan. He’s currently a lawyer in private practice, but he’s worked for both the Louisiana and Texas attorneys general, and as general counsel of the Becket Fund.
Duncan has argued more than 30 cases in federal appellate courts, including two before the Supreme Court.
Louisiana Sens. John Kennedy and Bill Cassidy were called upon to introduce Duncan. In a somewhat unusual introduction, Kennedy bemoaned the fact that Duncan is a “Washington lawyer.” Cassidy corrected the record, explaining that Duncan is a “Louisiana son”—born and raised in the state.
Duncan received his undergraduate and law degrees from Louisiana State University, served as the state’s first solicitor general, and continued to advance Louisiana’s interests by defending the state’s laws on marriage, abortion, and religious liberty after he entered private practice.
After hearing his testimony and watching him gracefully handle the scrutiny of a public hearing, I am confident that Kyle Duncan will be a welcome addition to the U.S. Court of Appeals for the 5th Circuit. … I plan to vote in favor of him and look forward to welcoming him home to Louisiana.
Grassley asked Duncan to elaborate on how serving as solicitor general is relevant to being a judge.
Of being the state’s chief advocate in court, Duncan said, “You have to take the politics out. You have to focus on the law. … You have to make the most zealous and reasonable arguments you can within the precedents.”
He also explained that he handled a broad range of cases, noting, “I’ve had a case on every one of the Bill of Rights except the Third Amendment” (there aren’t many of those) and handled cases for and against government in the civil and criminal contexts.
He even has experience with admiralty law, a subject he taught at the University of Mississippi Law School.
Feinstein brought up the fact that Duncan filed an amicus brief in support of Texas’s voter ID law, asking what evidence he had of voter fraud. Duncan responded that the Supreme Court’s ruling in Crawford v. Marion County Election Board (2008) allows states to pass laws that act prophylactically to prevent fraud.
Duncan mentioned he also represented the state of North Carolina in defending its voter ID law. Sen. Thom Tillis, R-N.C., piped up to point out that he was speaker of the North Carolina House when the law was passed, and the legislature’s intent was to ensure the integrity of their elections.
Sen. Mike Lee, R-Utah, entered a few letters supporting Duncan into the record: one from 31 Louisiana lawyers, which said he is exceptionally well qualified and will make everyone in Louisiana proud; another from Paul Baier, opposing counsel on Louisiana’s same-sex marriage case, who wrote that Duncan is a “magnificent nominee”; and a third letter from current and former state solicitors general, which said Duncan has “the personal and professional qualities that should typify” the federal bench.
Given Duncan’s representation of Hobby Lobby while at the Becket Fund, Sen. Dick Durbin, D-Ill., asked why religious beliefs should trump the rights of others—citing defenders of slavery using biblical passages to prop up their arguments.
Duncan explained that it’s a balance, and some cases are tough. But the case of slavery would be an easy one—those defending it should lose. But for others, he said, “What makes the right answer is the law, not the fact that someone has a belief.”
Sen. Sheldon Whitehouse, D-R.I., asked a series of questions in an attempt to legitimize the Democrats’ inappropriate probing into Judge Amy Coney Barrett’s religious beliefs. He asked the nominees whether it was the committee’s duty to “ensure litigants won’t have [judges’] religious views imposed on their case” and whether discretion is part of judging.
Duncan replied in the affirmative, noting that discretion “ought to be as limited as possible,” and pointing out that a “basic component of the judicial oath” is to “treat people equally.”
Sen. Mazie Hirono, D-Hawaii, asked whether there’s a difference in the weight of unanimous Supreme Court decisions compared to divided decisions.
Duncan responded that Chief Justice Earl Warren, who headed up the court when it decided the landmark case Brown v. Board of Education, had discussed the importance of the court speaking with one voice.
Duncan said, as a judge, he would “try to seek unanimity with colleagues” whenever possible because it helps foster acceptance of a decision. But divided decisions of the Supreme Court are precedents he would also be bound by as an appeals court judge.
We have had the privilege of working with Duncan over the years—first when he was general counsel of the Becket Fund and later when he entered private practice. He’s exactly the type of judge our country needs. He is committed to interpreting the Constitution and laws according to their original public meaning.
We agree completely with former Attorney General Ed Meese when he wrote, “[T]he president could do no better than nominating Kyle Duncan.”
Stras has served as a justice on the Minnesota Supreme Court for seven years, where he has a distinguished record respecting the rule of law.
What emerged in the course of his questioning was a picture of a judge who understands that his role in our system of government is a limited one. He stated, “Judges need to have a healthy respect for the other branches of government,” “exercise judgment,” and “don’t impose our will.”
Tillis remarked that Stras reminds him of another nominee who sat before this committee not long ago—Neil Gorsuch. Tillis pointed out that, like Gorsuch, Stras’ view on legislating from the bench is that “it’s not my job to do your job.”
Klobuchar, who introduced Stras, asked several questions about following the Supreme Court’s precedents. He said, “We don’t get to choose and pick the precedent we like and don’t like. I’ve done that as a justice.”
She asked how he would approach a conflict between the original meaning of a statute and a contrary precedent. He explained that “statutory stare decisis is a strong norm.”
Sen. Jeff Flake, R-Ariz., asked about how Stras’ family’s story shaped his view of public service. Stras, whose grandparents were Holocaust survivors, explained how they taught him the importance of “serving your fellow man.”
Franken asked about Stras’ views on affirmative action and the Supreme Court’s ruling in Grutter v. Bollinger (2003), which the court decided when Stras was a law clerk to Thomas. Stras explained that he can’t prejudge issues that would come before him—either on the Minnesota court or if he is confirmed to the federal bench.
Franken pressed, asking about another case involving race—Parents Involved v. Seattle School District No. 1 (2007). Stras had written for SCOTUSblog following that ruling that it would be “dangerous” for lower courts to follow Justice Anthony Kennedy’s opinion.
Stras explained how this was not a critique of Kennedy’s opinion. In that case, there was no controlling majority opinion, and Stras wrote about the Marks Rule, named for Marks v. United States (1977), which deals with how to identify the legal standard a majority of the court appears to agree upon in a fractured decision.
Kennedy probed both Stras and Duncan about whether they would use social media if confirmed to the federal bench, a subject for which another judicial nominee faced scrutiny. Stras said he would maintain a Facebook page to share pictures of his kids, but said he wouldn’t express professional, legal, or political views. Duncan simply responded, “I don’t do social media.”
Kennedy also asked whether the nominees believed there are rights that aren’t specifically laid out in the Constitution, so-called “penumbras.”
Duncan replied that the Ninth Amendment recognizes there are rights not explicitly written in the Constitution, and there has always been a debate about what these rights are and whether they are judicially enforceable. He explained that the Supreme Court outlined a test in Washington v. Glucksberg (1997) to provide judges guidance when they are determining whether something is a “fundamental right.”
Stras indicated that he was hesitant to answer this question, since it’s an issue that might come before him in court.
Finally, Kennedy asked what the nominees would do if the Supreme Court reversed Brown v. Board of Education and reimplemented the legal travesty Plessy v. Ferguson (1896), which enunciated the “separate but equal” doctrine.
Stras responded that as a lower court judge, his job would be to follow Supreme Court precedent, even when he disagreed with it. Duncan answered that “Plessy is an embarrassing decision,” and if the court overruled Brown, he’d “apply the 14th Amendment … and hope we’d get Brown back really quick.”
These nominees did a superb job fielding questions from both sides of the aisle. Next, the Senate Judiciary Committee members will meet to cast their votes for or against sending Duncan and Stras to the full Senate for a confirmation vote.
We hope these next steps are speedy so that these impressive men can join the federal bench.