Polluting The Judiciary

Assuming a sufficient turnout of Democrats, Independents and Republicans horrified by Trump, much of the daily damage being inflicted by this administration can be rectified.

But some very real damage cannot be undone, and the evisceration of the role played by the federal courts in checking unconstitutional behavior by government is one of the most consequential.

We’ll be stuck for a generation with judges like Kyle Duncan–one of the many ideologues and bigots being nominated and confirmed to the federal bench.  

Lambda Legal has sent out an alert about Duncan:

Kyle Duncan, a lawyer who has built his career around pursuing extreme positions that target members of the LGBTQ community, has been nominated by Donald Trump for a lifetime appointment to the U.S. Court of Appeals for the Fifth Circuit.

A brief Google search confirms Lambda Legal’s warning. Duncan is best known as the lead lawyer in the infamous Hobby Lobby case, in which he argued successfully that closely-held corporations should be able to deny their employees insurance coverage for birth control.

A Louisiana news organization called the Bayou Brief described his career:

“(He) is staunchly and vociferously pro-life… (and he) is staunchly and vociferously pro-religious liberty,” Sen. John N. Kennedy, a Louisiana Republican, told colleagues. “I like that about him.”

When a lesbian mother was stripped of her parental rights after moving from Georgia, which recognized her rights, to Alabama, which did not, he argued to the United States Supreme Court in defense of Alabama, claiming, among other things, that the mother’s harms were “overstated.In a per curium decision, he lost that case as well.

Just this year, he unsuccessfully attempted to convince the United States Supreme Court to uphold a North Carolina law that was specifically intended to make it more difficult for African-Americans to vote.

He has won some cases too, though. He successfully convinced a split United States Supreme Court that a district attorney- in this case, former Orleans DA Harry Connick, Sr.- cannot be held liable for certain violations committed by their prosecutors, even if those actions result in a man spending 18 years behind bars on a wrongful conviction.

It is clear from the reporting about Duncan that he is a skilled lawyer, albeit on behalf of what I consider “the dark side,” so I found it interesting–and baffling–that Duncan and his supporters on the religious right found it necessary to beef up his resume by mischaracterizing one of his former positions. The claim was that he had been  “Solicitor General” of Louisiana.

Carrie Severino of the Judicial Crisis Network repeated the same claim in a short column published in The National Review. “Kyle served four years as Louisiana’s first Solicitor General,” she wrote (emphasis added), “performing so well that he has since been called back to represent the state repeatedly as special counsel.” (Severino’s organization spent a small fortune promoting Duncan, even releasing a television ad on his behalf).

Among many others, Breitbart and the Heritage Foundation also described Duncan as the state’s very first Solicitor General.

There is no such office under Louisiana law.

“Captain Crunch has more of a real job than anyone claiming to be Solicitor General of Louisiana,” a lawyer with extensive experience in state government told The Bayou Brief, on the condition of anonymity, “because at least Captain Crunch is on a cereal box.”

While this transparent puffery suggests a lack of integrity–or at the very least, the sort of meticulous attention to accuracy that good lawyers possess–that’s the least of the problems we should all have when a committed culture warrior is elevated to the federal bench.

Lawyers advocating for their clients, or for their favored interpretation of the law or the constitution are entitled to be zealous (albeit not zealots). We expect judges to approach their jobs with a very different, far more disinterested “judicial temperament.”

If Senate Republicans cared about their obligation to the Constitution and their duty to “advise and consent,” ideologues like Duncan would not be confirmed. But the Senate GOP–described by former George W. Bush speechwriter David Frum as “lickspittles”–has abandoned even the pretense of independence or statecraft.

We the People are about to lose objective courts of law for a generation.


  1. Sheila,

    “We the People are about to lose objective courts of law for a generation.”

    That’s why only fools would wait until November to attack Trump while he’s vulnerable.

    “Assuming a sufficient turnout of Democrats, Independents and Republicans horrified by Trump, much of the daily damage being inflicted by this administration can be rectified.”

    What are the odds of that happening in November? How do you know he will be vulnerable then? What happens if he cleans up his act? Republicans aren’t the fools. It’s the Democrats and the media.

  2. At least U.S. Rep. Hakeem Jeffries isn’t waiting around until November to attack. He’s a great example of SPEAKING TRUTH TO POWER if you had the opportunity to hear his attack against Trump in Congress this week.

    He was even joined by, late arriving, U.S. Sen. Charles Schumer, as they both struck a combative tone against President Donald Trump and Republicans in Congress at a political rally in Brooklyn on Thursday.

  3. The public and much of the media are attacking Trump, who doesn’t appear to be vulnerable in the true sense of the word, by speaking out daily and continuing to hold protests and rallies for more than a year. Those who are in a position to take legal action are up against the entire Republican Legislature, Executive and Judicial divisions of the government who have begun “deconstruction” of our Constitution. Sometimes these public attacks take time to get those in an official position “on board”; an example is the Democratic Senator who is at last asked for answers regarding one incidence of Trump’s money laundering (which would have been public long ago had he released his tax returns) and his connection to all things Russian. The mansion in Florida which Trump purchased for $41.5 million, let it sit empty for 4 years, then sold to a Russian multi-millionaire for $98 million is now being officially questioned, it continues to sit empty and deteriorating. While Trump and this particular Russian have not been seen together; their private jets have been parked in the same airports at the same time during Trump’s campaign. This news was reported by Rachel Maddow last year and is finally getting national attention from a government official.

    Trump is his own worst enemy; self-flagellating every time he opens his mouth or sends out his hourly Tweets. There is little concern that he will not remain vulnerable till the November elections because no one throughout his lifetime has been able to get him to keep his mouth shut. To use an old phrase regarding obese people over-eating; he is digging his grave with his mouth. Let him continue his public elocution believing himself to know more than anyone else; his inflated ego will eventually cause him to implode. Somewhere in the current muck and mire that is our government; there must be a “final straw” even for these Republicans.

    “We the People are about to lose objective courts of law for a generation.”

    Ridding this government of Trump will be a giant step for mankind and a first step fighting to regain objective courts; there must always be that first step to any destination. The Primary and General Elections this year are vital if we are to begin a return to sanity, common sense and democracy; it is going to take a grassroots version of D-Day because voting out the current administration eventually falls to the voters.

  4. A short history of an interesting paradigm [example or model]:

    “Nürnberg trials, Nürnberg also spelled Nuremberg, series of trials held in Nürnberg, Germany, in 1945–46, in which former Nazi leaders were indicted and tried as war criminals by the International Military Tribunal. The indictment lodged against them contained four counts: (1) crimes against peace (i.e., the planning, initiating, and waging of wars of aggression in violation of international treaties and agreements), (2) crimes against humanity (i.e., exterminations, deportations, and genocide), (3) war crimes (i.e., violations of the laws of war), and (4) “A COMMON PLAN to commit” the criminal acts listed in the first three counts.”

    ~Encyclopedia Brittanica

  5. I pray daily for the health and well-being of RBG. It might be a good idea if we all pray for the health and well-being of every competent, rational Federal Judge. The problem, once again is the Republican Senate, which refused to consider Obama nominees for vacancies on the courts, leaving huge numbers of vacancies. This actually started under the Clinton Presidency. It got so bad that Chief Justice Rehnquist, a deeply conservative Republican, openly scolded the Congress for their failure to act on judicial nominees.

  6. Reagan did the same thing. The judiciary is still polluted by some of his appointees. McConnell and the Federalist Society are doing the same thing.

  7. There is a very good chance that Democrats will retake the House this November, and since the House controls the pursestrings, that’s a giant step forward in throttling Republican runaway giveaways to their donor class. However, the likelihood of Democratic control of the Senate after this November is much less likely, and therein lies the problem. The Senate confirms or refuses to confirm judicial candidates proposed by the president under our Constitution, and we have seen how Senate Leader McConnell has politicized such confirmation or lack thereof via a year’s stall after Scalia passed until Gorsuch could be seated on our Supreme Court.

    Given the long term effect of lifetime jobs of federal judges versus senators who have to run for reelection every six years and the McConnell stall of confirmation of federal trial and appellate judges during the Obama years (which means that there are many more such judicial positions up for appointment now), one could argue that retaking the Senate is more important than retaking the House.

    The ideal, of course, would be to retake both so that some sanity could return to matters of taxation and budgeting – and to confirmation of judicial candidates who are not ideologues. Is recapture of both chambers possible? Yes, but it depends upon the depth of the “wave’s” effects in red states, something no one can know today. Our task? Deepen the wave.

  8. JoAnn Green at 7:33am

    “There is little concern that he will not remain vulnerable till the November elections because no one throughout his lifetime has been able to get him to keep his mouth shut.”

    As Trump will not be up for re-election in November and we must wait until 2020 to trump any Trump run for “four more years”, I am looking forward to the November 2018 election when I will be voting straight Democrat ticket again to add to the deluge of awakened Americans so that enough congressional GOP will lose their seats, lose their majority control of committee chairmanships and Trump’s draconian executive orders will be neutered by a new majority of rational law makers. The chaotic White House staff will be replaced by professionals to work for the USA, not for a narcissist; no more phony shut-downs; support for our well-performing Medicare, Medicaid and Social Security; drop the propaganda word “reform” used to fool the public and line the pockets of the ultra-rich, quit the constant half-truths and lies, and the federal courts will not be screwed up for generations. We may even get a Congress that will promote civility.

  9. OMG; and let it be that we not only oust Republicans from House, Senate and local offices, let it be that the Democrats elected will have the strength and determination to STOP Trump the way the Republicans stopped President Obama throughout his 8 years in the White House. Their accomplishments at stopping President Obama’s progress put us in the position of starting with a deficit aside from the national economic debt we now face (and have no idea of the true cost in dollars of the Trump administration); the Congress and the Senate are currently bankrupt regarding decency and humanity. We must work to restore it and regain trust from Americans and other nations who no longer look to us for guidance.

  10. Ms. Green–
    I have only one way to sanity by voting straight Democrat.
    I can’t vote for any Republican, not even for a least threatening wannabe.
    I can’t stay home on Election Day.
    Do you see any other choice?
    The GOP, under the Narcissist-in-Chief, will mount a vicious campaign so my vote may be wasted but I have my soul to consider so, like Pete, I will vote STRAIGHT Democrat ticket. I’ll have a miniscule chance of making a difference. I must not waste the slight political power I have with one vote, but I MUST cast it, especially in Carmel and Hamilton County where it will make little or no difference except to me .
    I hope some good experienced public servants will mount the stumps.

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