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Trump Reaches #15; Polarizing Pick Kyle Duncan Confirmed

April 24, 2018, 8:39 PM

• Third Trump nominee confirmed to Fifth Circuit • Litigated voter ID, LGBT rights, ACA controversies

The Senate narrowly confirmed President Donald Trump’s 15th federal appeals court nominee, Kyle Duncan, by a vote of 50-47 April 24.

Duncanis the third conservative Trump nominee confirmed to the U.S. Court of Appeals for the Fifth Circuit, which encompasses Texas, Mississippi, and Louisiana. The court now has 10 Republican-appointed judges and five Democratic-appointed judges.

Duncan has litigated on the conservative side of some of the highest-profile legal controversies, including disputes over voter identification requirements, LGBT rights, and the Affordable Care Act.

He faced fierce opposition leading up to the vote from Democrats and progressives who described him as an opponent of civil rights. Only one Democrat, Sen. Joe Manchin (W. Va.), voted to confirm Duncan.

With Donald Trump as president, the “rich and powerful” sense a “once in a lifetime opportunity to reshape our courts for years to come,” Sen. Elizabeth Warren (D-Mass.)saidon the Senate floor.

Those interests are “working to stack our courts with narrow-minded elitists and right-wing radicals,” and Duncan is “one of those nominees,” Warren said.

Leaders of progressive organizations including the Leadership Conference on Civil and Human Rights and the NAACP joined Democratic senators and representatives on a conference callcriticizingthe nominee prior to the vote.

But conservative organizations including Americans United for Life and the Family Research CouncilpraisedDuncan as a well-qualified litigator, and Sen. Majority Leader Mitch McConnell (R-Ky.)describedDuncan as an “outstanding choice.”

Duncan will leave his position aspartnerat the boutique firm of Schaerr Duncan LLP, Washington, which he helped found.

Civil Rights Record

Duncan has defended voter identification requirements in North Carolina and Texas.

“Most abhorrent in Mr. Duncan’s record is his stalwart support of legislative efforts to curb the right of people of color to exercise their right to vote,” the Congressional Black Caucus said in aletterto Senate leaders.

He also defended Louisiana’s same-sex marriage ban and represented a Virginia school district in a transgender bathroom accessdispute.

Duncan also represented Hobby Lobby in a challenge to the Affordable Care Act’s contraceptive mandate.

Sen. John Kennedy (R-La.) said that Duncan shouldn’t be disqualified for having represented clients disliked by Democrats.

It’s “just not fair” to criticize “a lawyer for doing what he is bound by our code of ethics and indeed the law to do,” Kennedy said.

More Nominees Waiting

Duncan will join Trump nomineesDon WillettandJim Ho, who were confirmed to the Fifth Circuit in 2017.

Two more Trump nominees could soon join them.

Andrew Oldham, now general counsel to Texas Gov. Greg Abbott (R), will appear before the Senate Judiciary Committee at a confirmation hearing April 25.

The Senate Judiciary Committee approved Trump nominee and District JudgeKurt Engelhardtin February, and he is now awaiting a vote by the full Senate.