Nomination of Mike Pompeo
Floor Speech
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Mr. DURBIN. Mr. President, I rise in opposition to the nomination of Kyle Duncan to serve on the Fifth Circuit Court of Appeals.
Mr. Duncan's record shows that he is far outside the judicial mainstream. He has a history of ideological opposition to important civil and constitutional rights. There are many examples of Mr. Duncan's extreme views. I will discuss several of them.
First, Mr. Duncan has a track record of outright hostility toward the Supreme Court's Obergefell decision and the rights of the LGBTQ community.
When the Obergefell case was pending before the Supreme Court, Mr. Duncan wrote an article where he described the plaintiffs in the case as, ``profoundly mistaken.'' He went on to write: ``It is often asked by proponents of same sex marriage what harms would flow from judicial recognition of their claims. From the perspective of democratic self- government, those harms would be severe, unavoidable, and irreversible.''
After the Obergefell plaintiffs won and the Supreme Court recognized the right to same-sex marriage, Mr. Duncan wrote another article where he described the Obergefell decision as ``an abject failure'' and said the case ``imperils civic peace.''
When he was before the Judiciary Committee, I asked Mr. Duncan in writing if he agreed that same-sex marriage is now settled law. He ducked the question.
This surprised me. Even President Trump conceded in November 2016 that same-sex marriage is ``already settled. It's law. It was settled in the Supreme Court,'' but Mr. Duncan would not acknowledge that point.
I also asked Mr. Duncan in writing if he would pledge not to take steps to undermine the Supreme Court's Obergefell decision if he were confirmed. He did not respond to that question either.
Make no mistake, Mr. Duncan's advocacy against LGBTQ rights goes beyond arguments that he advanced on behalf of clients. He has repeatedly advocated against LGBTQ rights when writing in his own personal capacity about his own views.
Mr. Duncan also has a troubling record of hostility to voting rights.
He joined with another extreme Trump judicial nominee, Thomas Farr, to represent the North Carolina Legislature in seeking Supreme Court review of the Fourth Circuit's decision to strike down North Carolina's 2013 voter suppression law.
This is the notorious law that the Fourth Circuit said targeted African-American voters with ``almost surgical precision.'' The Fourth Circuit decried this law as ``the most restrictive voting law North Carolina has seen since the era of Jim Crow.''
Mr. Duncan's brief argued that the Fourth Circuit's decision was ``an affront to North Carolina's citizens and their elected representatives.'' Fortunately, the Supreme Court denied Mr. Duncan's cert petition.
Mr. Duncan also wrote a brief defending a Texas voter ID law that the Fifth Circuit ruled had violated the Voting Rights Act. Mr. Duncan's brief cited the specter of voter fraud to support his argument that this law was necessary.
I decided to ask Mr. Duncan a simple question about voter fraud. I asked him in writing what he thought of President Trump's wholly unsubstantiated claim that 3 to 5 million people voted illegally in the 2016 election.
His response? He said ``I am constrained by the canons of judicial ethics from commenting on political matters.''
Why would we put someone on the Federal bench who thinks a false claim about millions of illegal voters in the 2016 election is a ``political matter''? Why couldn't Mr. Duncan bring himself to say that President Trump's statement was blatantly false?
Mr. Duncan's views on voting rights are troubling, so much so that Derrick Johnson, president of the NAACP, sent a letter saying that ``President Trump's nomination of Mr. Duncan to the Fifth Circuit is a brazen insult to the civil rights legacy of this court.''
There are many other issues where Mr. Duncan has advocated for positions that are far to the right of the center stripe.
In 2014, he gave a speech where he discussed the Supreme Court's right-to-marry cases, including the landmark decision Loving v. Virginia, and said to the audience, ``Ask yourselves this: do they add up to a right to marry your first cousin? A thirteen year old?''
Mr. Duncan also filed briefs in opposition to the DACA program and the proposed DAPA program, which he claimed ``would greatly increase the risk of unauthorized immigrants committing serious crimes.'' His arguments perpetuated a stereotype of immigrants as criminals that is simply not borne out by evidence.
Mr. Duncan represented Hobby Lobby in its Supreme Court case, where he argued that for-profit corporations have religious rights that permit them to circumvent the law and refuse to provide contraceptive coverage to their employees.
The NAACP has described Mr. Duncan's record on criminal justice issues as ``abysmal.'' They noted his efforts to overturn a wrongful conviction verdict based on prosecutor misconduct, as well as his defense of inhumane conditions in severely overcrowded prisons.
What kind of message does it send when the Republican Party goes out of its way to nominate people like Mr. Duncan who have expressed such hostile views on issues of fundamental civil rights such as the right to marry and LGBTQ rights?
There are plenty of well-qualified Republican judicial candidates who do not have a track record of taking extreme ideological views. Why choose someone like Mr. Duncan? What kind of signal does that send to litigants who might argue before the Fifth Circuit?
It is possible to find highly qualified, nonideological candidates for the Federal bench, nominees whom both parties can be proud of. We have done that with the two pending Illinois nominees to the Seventh Circuit. I wish that had happened with this Fifth Circuit vacancy, but unfortunately, that is not the case.
I cannot support Mr. Duncan's nomination, and I will vote no.
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