Executive Session

Floor Speech

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Mr. WYDEN. Madam President, I come to the floor this morning to oppose the nomination of Stuart Kyle Duncan to serve on the Court of Appeals for the Fifth Circuit.

I accept that there are differences of opinion with respect to nominees, and I accept that I will not agree on every issue with every Trump nominee. I do expect that individuals who are up for lifetime judicial appointments have to demonstrate that, above all else, above everything else, they will be guardians of the constitutional rights of the American people. If you want to be a judge in America, my view is, you ought to have to show an independence of thought and a respect for the rule of law.

I regret to say this morning, I believe this nominee has not met those important expectations. As I review Mr. Duncan's record, it seems to me he has made a career out of fighting to restrict the rights and legal protections of the vulnerable and those who are powerless. It ought to be an immediate red flag to see how often he has aligned himself with the wrong end of some of the most high-profile cases in the last few years.

My view is that his record on civil rights alone ought to be disqualifying. Twice he has represented States--North Carolina and Texas--in their defense of voter suppression laws that were written and passed based on false claims of voter fraud. Both of those laws, in my view, were a sort of Frankenstein monster of past proposals that would have made it harder for African Americans and Latino citizens to vote. You don't have to take my word for it; both of those cases were thrown out by the courts. Fortunately, neither time was Mr. Duncan successful on appeal.

In another case, he argued before the Supreme Court that a wrongful conviction verdict ought to be thrown out. An African-American man named John Thompson spent 14 years on death row after prosecutors in New Orleans concealed evidence that would have proven his innocence. After his exoneration, this individual won a $14 million wrongful conviction suit. Mr. Duncan, on the other hand, led the effort to have it overturned. An innocent man's life was ruined, and Mr. Duncan saw to it that he had no recompense.

He has clearly been a staunch opponent of women's reproductive rights and healthcare. He was counsel of record representing Hobby Lobby in its case against the Department of Health and Human Services in 2014. In that case, Hobby Lobby sought to throw out the legal requirement that women have no-cost access to contraception through their health insurance coverage. Mr. Duncan argued that the government has no compelling interest in guaranteeing access to contraception. To hold that view, you have to basically throw in the trash can the science showing that contraception results in lower rates of cancer and healthier pregnancies when women choose to conceive. You also have to be willing to turn a blind eye to the matter of economic fairness--that women, particularly those who are vulnerable, those of modest means, should not be taxed for their gender.

Mr. Duncan went on to author a special legal brief in Whole Woman's Health v. Hellerstedt, arguing that the Supreme Court should have ignored medical evidence and allowed the State of Texas to shutter women's health clinics on trumped-up grounds.

I also think that as the Senate considers this nominee, we should look at his record on LGBTQ Americans. In 2015, when he was in private practice, this nominee served as special assistant attorney general for Louisiana. There, he authored an amicus brief on behalf of 15 States, urging the Supreme Court to reject the right to same-sex marriages nationwide. He wrote that recognizing such a right would endanger the ``civil peace.'' It is a head- scratcher to me how he could reach that conclusion. Whatever damage has been done to the civil peace in the last 3 years certainly has had nothing to do with same-sex marriage.

When I came to the Senate, I believe I was the first Member of this body who came out for marriage equality. Back then, I said: This is pretty simple, folks--if you don't like gay marriage, don't get one. Regrettably, this nominee not only doesn't share that view, but he wrote that recognizing the right to marriage equality would, in his view, endanger the civil peace.

He represented Gloucester County, VA, in an effort to deny a transgender student's right to use the bathroom aligned with the gender identity. He also represented rightwing lawmakers in North Carolina, defending broadly discriminatory legislation that became known as the bathroom bill.

The list of concerning episodes and disqualifying work in Mr. Duncan's career does take a fair amount of time to actually walk through. What I will just tell you is that when I look at Mr. Duncan's background, what I see is a long record of hostility toward the rights of women and minority Americans. He has consistently defended powerful special interests over the rights of those who don't have political action committees, aren't powerful, and don't have high-priced lobbyists.

As Senators consider how to vote on this nomination, I find it hard to believe that this track record of bias that I have outlined this afternoon will suddenly vanish, will just disappear on confirmation. In my judgment, this is an individual who should not serve on the bench. I urge my colleagues to vote no.

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