April 24, 2018 at 3:34 pm EDT | by Chris Johnson
Anti-LGBT Trump judicial nominee Kyle Duncan confirmed to Fifth Circuit

Kyle Duncan was confirmed to the U.S. Fifth Circuit Court of Appeals. (Image via C-Span)

The U.S. Senate has confirmed to the federal bench a Trump judicial nominee who made a major component of his career as a lawyer blocking LGBT rights, including same-sex marriage and transgender student Gavin Grimm’s access to the high school boys’ room,

Kyle Duncan, a partner at the D.C.-based Schaerr Duncan LLP, was confirmed Tuesday to a seat on the U.S. Fifth Circuit Court of Appeals — which has jurisdiction over Texas, Louisiana and Mississippi — by a party-line vote of 50-47.

When same-sex marriage came before the Supreme Court in 2015, Duncan filed a brief on behalf of 15 states in opposition to nationwide marriage equality. Additionally, he led efforts to keep in place marriage bans in Louisiana and Virginia.

After the Supreme Court ruling in favor of same-sex marriage, Duncan said the decision was an “abject failure” and “imperils civic peace.” Later, Duncan suggested the ruling was invalid, saying it “raises a question about the legitimacy of the court.”

Although the Supreme Court ruled contrary to his views, Duncan wasn’t done. In Alabama, he represented the birth mother of three children who refused visitation rights to her former same-sex spouse. Although the Alabama Supreme Court ruled in the birth mother’s favor, the U.S. Supreme Court reversed that decision in accordance with Obergefell.

On transgender rights, Duncan represented in litigation the Virginia school that sought to bar transgender student Gavin Grimm from using the restroom consistent with his gender identity. Duncan also represented North Carolina Republican lawmakers in their attempt to defend in court House Bill 2, which sought to bar transgender people from using public restrooms of their choice.

In addition to anti-LGBT work, Duncan was also the lead attorney in the Hobby Lobby case, which led the U.S. Supreme Court to rule in 2014 that closely held corporations could deny health insurance to female employees that includes birth control coverage.

Sen. Jeff Merkley (D-Ore.) decried Duncan’s anti-LGBT record — as well as legal views on women’s rights and immigration — in a floor speech expressing opposition to Duncan prior to the vote invoking cloture on his confirmation.

“What kind of fairness do you anticipate before a judge ardently opposed to the freedom of opportunity for LGBTQ Americans, who condemns a previous decision of the Supreme Court court as an ‘abject failure,’ who said that this decision would imperil civic peace?” Merkley said.

Praising Duncan, however, were Republicans members of the Senate, including Sen. Bill Cassidy (R-La.).

“This is the experience and background that we should look for in selecting a judicial nominee,” Cassidy said. “And I will also add, he is of high character. Even those who are going to vote ‘no’ are all impressed once they meet him and consider him a genuinely nice man.”

In a conference call with reporters prior to the confirmation vote, civil rights advocates and Democratic lawmakers opposing Duncan said his legal background isn’t unique and par for the course of Trump judicial nominees.

Sen. Chris Coons (D-Del.) said Duncan is a “nightmare candidate who were are seeing all too often,” taking note of the nominee’s opposition to the Supreme Court ruling for marriage equality.

“He decried that particular decision as an abject failure, he also was an active litigant in the HB2 bathroom law in North Carolina and has characterized transgender individuals as having psychological pathology and has said many other disturbing things about transgender rights, about same-sex marriage and about the legal theories underpinning what have been, I think, significant advances in these two areas,” Coons said.

Sen. Richard Blumenthal (D-Conn.) also said Duncan “unfortunately and tragically, is really typical of a lot of the Trump nominees for the courts.”

“First of all…he is a white male,” Blumenthal said. “As of March 2018, the White House had named 87 judicial nominees, 92 percent of them are white, 77 percent of them are male. Just one nominee of those 87 is African-American. That is a travesty and a tragedy for this great country. The federal courts are in danger of no longer looking like America.”

Praising the Senate for confirming Duncan, however, was Tony Perkins, president of the anti-LGBT Family Research Council. Perkins also praised Trump for the nature of his judicial nominees.

“President Trump continues to keep his promise to appoint constitutionalists to the courts, and now the Senate is following his lead in confirming Kyle Duncan to the Fifth Circuit Court of Appeals,” Perkins said. “The president has been very clear about the type of judges that he would appoint: Judges who will interpret the Constitution and laws according to the plain meaning of the words written.”

Rachel Tiven, executive director of the LGBT group Lambda Legal, said during the conference her organization will remind the American people about their senators’ vote on Duncan when he makes decision on the Fifth Circuit.

“The legislators on this call and so many others have told their colleagues why he is unfit, and so every senator who votes for him knows exactly what they are choosing, and they will be accountable for the decision he makes on the bench,” Tiven said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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