Justice Ginsburg’s Foreword to Scalia Speaks

by Ed Whelan

Justice Ginsburg has written a beautiful foreword to Scalia Speaks. You’ll have to get the book to enjoy her foreword in full. But here is her closing paragraph:

This collection of speeches and writings captures the mind, heart, and faith of a Justice who has left an indelible stamp on the Supreme Court’s jurisprudence and on the teaching and practice of law. The work of his fine hand will both inspire and challenge legions of judges and advocates. If our friendship encourages others to appreciate that some very good people have ideas with which we disagree, and that, despite differences, people of goodwill can pull together for the well-being of the institutions we serve and our country, I will be overjoyed, as I am confident Justice Scalia would be.

Scalia Speaks Notes

by Ed Whelan

1. Here’s a 12-minute podcast in which I discuss Scalia Speaks with Bloomberg BNA’s Patrick Gregory and Kimberly Robinson. I enjoyed the discussion and hope you do.

2. Yesterday’s inaugural event for Scalia Speaks at Antonin Scalia Law School went well. My co-editor Christopher Scalia and I thank Dean Henry Butler and law professor Helen Alvaré for joining us. I’m pleased to report that we exhausted the bookstore’s entire supply of Scalia Speaks. (Note to law-school bookstores: Order a lot of copies.)

3. On the Corner, my Ethics and Public Policy Center colleague Yuval Levin hails Scalia Speaks as an “extraordinary collection of speeches” that “offer a powerful portrait of a great public figure and thinker”—“an intellectual feast and at the same time great fun to read.”

4. Scalia Speaks continues to rank very high on Amazon’s list of over one million books—it’s #149 as I write this. The hardcover remains the #1 Best Seller in the category “United States Judicial Branch,” with Kindle and audiobook #2 and #3.

This Day in Liberal Judicial Activism—October 3

by Ed Whelan

2013 — “Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy.”

A sound observation, to be sure. But what’s remarkable is that the person uttering it is Justice Anthony Kennedy, who throughout his tenure on the Supreme Court has done as much as any justice to intrude willy-nilly on the democratic processes on the “most serious issues of the day.”

Scalia Speaks Notes

by Ed Whelan

Scalia Speaks: Reflections on Law, Faith, and Life Well Lived—the collection of Justice Scalia’s speeches that I’ve co-edited—will be released tomorrow.

Yesterday CBS Sunday Morning had a segment related to the book that featured Justice Ginsburg (who wrote the foreword), Mrs. Scalia, and my co-editor Christopher Scalia. Not long thereafter, the book rose as high as #118 on Amazon’s list of over one million books, and it’s now the #1 Best Seller in the category “United States Judicial Branch.”

To be more precise, the hardcover is #1. Numbers 2 and 3 are Scalia Speaks audio edition and Scalia Speaks Kindle edition.

On NPR, Nina Totenberg has an engaging review of the book (with radio segment to follow one of these days). This observation of hers is right on: “Justice Scalia was a very theatrical presence, and, in most of the speeches in the book, those who knew him will quite literally hear his voice in their heads.”

The inaugural event for Scalia Speaks will take place tomorrow (Tuesday) at Antonin Scalia Law School.

Corvino vs. Anderson and Girgis on Debating Religious Liberty and Discrimination

by Ed Whelan

With Masterpiece Cakeshop v. Colorado Civil Rights Commission at center stage in the Supreme Court’s new term, I’ve been meaning to highlight Debating Religious Liberty and Discrimination, the outstanding new book written in point-counterpoint fashion by John Corvino, on one side, and Ryan T. Anderson and Sherif Girgis, on the other.

My task has been made much easier by this excellent review by University of St. Thomas law school dean Robert K. Vischer, from which I draw these passages:

Every month brings new culture-war flash points as florists, bakers, and even some public officials invoke a right of conscience not to support or participate in a same-sex wedding. These refusals, in turn, have triggered a redoubled commitment to the primacy of nondiscrimination laws among those committed to LGBT rights.…

Enter three philosophers and unlikely coauthors: John Corvino, a longtime same-sex-marriage advocate, and Ryan Anderson and Sherif Girgis, two outspoken opponents of same-sex marriage. Their new book, Debating Religious Liberty and Discrimination, is a direct challenge to our cultural moment, opting for careful analysis over clickbait, mutual understanding over demonization, and clearly demarcated disagreement over sweeping dismissal. The authors take the time to lay out their best arguments, then respond to the best arguments of their opponents. Whether or not the book ultimately causes readers to change their views is not the measure of its success. The authors provide a desperately needed model for engagement: they argue with, not at their opponent; they argue together….

[D]iscourse is strengthened when we recognize the limitations of our own positions. We have become accustomed to a cable-news culture in which guests battle for every inch and concessions are taken as a sign of weakness. Corvino, Anderson, and Girgis are upfront about where their arguments do not and should not lead. Corvino does not reject religious exemptions categorically; he concedes, for example, that providers of a service should not be legally compelled to provide custom services that violate the dictates of their consciences; it is only when they refuse to sell the very same item to other customers on the basis of the customers’ sexual orientation (or race, religion, etc.) that the law should intervene. For their part, Anderson and Girgis admit that “coercive policies would be needed…if discrimination were rife, so that LGBT people were locked out of the market or out of the public square or into second-class status.” …

In the end, two questions emerging from the analysis strike me as the most salient and, in my view, would serve as prudent starting points for future debates over religious liberty and nondiscrimination. They do not lend themselves to easy answers, but they clarify the scope of disagreement. The first question is: What value should our legal order place on a person’s ability to live with integrity?… The second question is this: Does the prevention of dignitary harms warrant imposing the law’s coercive power on those whose exercise of conscience threatens such harm?

Anyone interested in this topic (which ought to be everyone) should get this book and read both sides’ arguments—especially the other side’s arguments—with care.

This Day in Liberal Judicial Activism—October 2

by Ed Whelan

1953 — Less than one month after the death of Chief Justice Fred M. Vinson, President Eisenhower recess-appoints California Governor Earl Warren as Chief Justice. In January 1954, Eisenhower nominates Warren to hold that office “during good Behavior,” but Warren, following the Senate’s confirmation of his nomination in March 1954, instead extends his stay as Chief Justice all the way to June 1969.

Years later, Eisenhower calls his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes.

1989 — The Texas supreme court rules (in Edgewood Independent School District v. Kirby) that the state constitutional provision that requires the legislature to “establish and make suitable provision for the support and maintenance of an efficient system of free public schools” forbids the existing system of financing public education — which relies significantly on local district financing — and instead requires that the “funds available for education be distributed equitably and evenly.” The court’s gauzy standard will create (in the words of one analyst) a “quagmire of endless litigation.”

This Day in Liberal Judicial Activism—October 1

by Ed Whelan

2008—The Supreme Court denies the state of Louisiana’s petition for rehearing in Kennedy v. Louisiana, the case in which the Court held, by a 5-4 vote, that imposition of the death penalty for the crime of raping a child violates the Eighth Amendment. The basis for the state’s petition for rehearing was the Court’s failure, in discerning a supposed “national consensus against capital punishment for the crime of child rape,” to take account of a federal law enacted in 2006 that authorized military courts to impose the death penalty for child rape. The Court had instead mistakenly stated that federal law does not authorize the death penalty for child rape.

Chief Justice Roberts and Justice Scalia—both dissenters from the original ruling—vote against rehearing on the ground that the majority was just making it up all along anyway. As Scalia puts it, in an opinion that Roberts joins:

I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

This Day in Liberal Judicial Activism—September 30

by Ed Whelan

2013—Rosemary Barkett’s 34-year Reign of Error in the American judiciary—first in Florida’s lower courts, then as a state supreme court justice (and chief justice), and finally as a federal appellate judge—comes to an end, as she retires from the Eleventh Circuit and accepts a position as an arbitrator on the Iran-United States Claims Tribunal in The Hague. How much damage Barkett can inflict in her new position is unclear, as the dysfunctional Tribunal has jurisdiction only over claims filed more than three decades earlier.

Judge Erickson Confirmed Over Lone Dissent

by Jonathan H. Adler

Yesterday, the U.S. Senate confirmed district court judge Ralph Erickson to an open seat on the U.S. Court of Appeals for the Eighth Circuit. Judge Erickson is the fourth of President Trump’s nominees to the federal courts of appeals to be confirmed. Unlike with Trump’s prior appellate appointments, there was little opposition to Erickson. The vote was 95-1.  Who was the lone vote against him? Senator Elizabeth Warren (D-MA).

NYT Hit Piece on CA7 Nominee Amy Barrett’s Religious Practices—Part 2

by Ed Whelan

Just a few more observations on religion reporter Laurie Goodstein’s New York Times article on Seventh Circuit nominee Amy Coney Barrett, titled “Some Worry About Judicial Nominee’s Ties to a Religious Group.” Numbering serially from my Part 1 post:

3. Who are the “Some” who “Worry”? Well, they evidently consist of two law professors Goodstein quotes.

One is Sarah Barringer Gordon, who opines of People of Praise that “These groups can become so absorbing that it’s difficult for a person to retain individual judgment.” Hmmm. Does Gordon actually have any basis for this judgment? Had Gordon ever heard of People of Praise before Goodstein called her? Does she have any independent knowledge of it? Or is she just doing Goodstein a favor by offering up a desired quote?

Gordon’s bio indicates that she has written extensively on Mormon polygamy in the 19th century. When she refers to “These groups,” is she lumping a 21st-century Christian charismatic community together with 19th-century Mormon polygamists?

The other law professor is Cathleen Kaveny, who is ubiquitous in pieces raising concerns about Barrett. Although you wouldn’t know it from any of her quotes or even from her own confused article, Kaveny is a former colleague of Barrett’s. Exercising heroic self-restraint, I’ll confine myself to observing that it’s rather ironic that she complains that Barrett hasn’t been “sufficiently transparent.” As I pointed out in my Part 1 post, the simple answer to Kaveny’s supposed gotcha question of “why didn’t she disclose this?” is that the Senate questionnaire didn’t inquire about membership in religious organizations.

4. Barrett has received stellar reviews from all of her Notre Dame colleagues, other law professors, every single one of her fellow Supreme Court clerks, and her former students. Appeals to religious bigotry aside, there is, in short, no basis for any concern that she lacks the independence of judgment needed to be an outstanding judge.

By the way, Barrett would not be the first judge who has been a member of People of Praise. Christopher Dietzen served with distinction as an associate justice of the Minnesota supreme court from 2008 to 2016 and, before that, as a judge of the Minnesota court of appeals for four years.

Goodstein and her supposed experts never seem to contemplate the possibility that a person who is accustomed to receive and to reflect on (as well as to give) advice in the realm of family life might have developed the faculty of critical self-reflection that well suits the judicial role.

5. Another indication of Goodstein’s bias: She falsely states that Barrett at her hearing “backed away” from the position in her 1998 law-review article that (in Goodstein’s words) “sometimes Catholic judges should recuse themselves from the sentencing phase of death penalty cases.” Even worse, she links to a characteristically error-strewn Alliance for Justice attack post (“It’s a Fact: Barrett Misled the Senate Judiciary Committee”) as support for her false claim.

As I’ve explained before (in point 4 of this post), and as law professor Rick Garnett points out in response to Goodstein, Barrett’s article focused heavily on the recusal obligations of trial judges in capital cases and emphasized that the recusal question for appellate judges—the role she would fill—was much more complicated under Catholic moral teaching on improper cooperation.

Nominations Update

by Carrie Severino

With the return of Congress and the march into fall, the number of federal judicial vacancies continues to grow. As does the number of nominations from the White House: since Congress has returned from summer recess, the President has nominated an additional 22 individuals to the federal bench.  Yet, the Senate has only confirmed six judicial nominees, a pathetic average of one nominee per month since President Trump’s first nominees were announced.  Here is a status update on President’s judicial nominees.

Total current and known future vacancies: 166

  • Courts of Appeals: 27
  • District/Specialty Court*: 139

Pending nominees for current and known future vacancies: 54

  • Courts of Appeals: 14
  • District/Specialty Courts: 40

*Includes the Court of Federal Claims and the International Trade Court

Nominees Awaiting Floor Votes (Reported by Senate Judiciary Committee)

  • Courts of Appeals: 0
  • District/Specialty Courts: 4

Nominees Confirmed by the Senate

  • Courts of Appeals: 4
  • District/Specialty Courts: 2

Early Rave Reviews for Scalia Speaks

by Ed Whelan

I’m delighted to pass along that Scalia Speaks: Reflections on Law, Faith, and Life Well Lived—the book of Justice Scalia’s speeches that I’ve co-edited and that will be released to the public next Tuesday—has received not one but two very favorable reviews in the forthcoming issue of the Weekly Standard.

Hoover Institution legal scholar Adam J. White praises the book as an “indispensable” set of speeches in which “Scalia educated, challenged, and entertained countless audiences.” White calls particular attention to Justice Scalia’s emphasis on (in White’s words) “the crucial role that education—especially civic and moral education—must play in sustaining republican government.” (Relatedly: White is the author of an excellent essay, “Antonin Scalia, Legal Educator” in the new issue of National Affairs.)

I was worried by former speechwriter Barton Swaim’s opening observation that “I’m not sure I’ve ever enjoyed reading a collection of speeches.” But it turns out that his use of the present perfect tense (“[ha]ve … enjoyed”) is a ploy. Swaim finds, to his surprise, that Scalia Speaks “somehow works.” Indeed:

These addresses are beautifully constructed in their rhetorical expression and logical development, as satisfying to read as they must have been to hear. There’s a warm lucidity about Scalia’s writing that nicely complements the oral form: He’s always clear but treats his readers as people, not reasoning machines; his aim is to express his argument as cleanly and efficiently as he can, but he’s happy to stop and ensure you’re following the logic. And happy to crack a joke, too. Scalia’s wit is legendary, but I was unprepared to laugh as much as I did. One example of many, on the absence of “soccer moms” in the Brooklyn of his youth: “There were no soccer moms because there was no soccer,” he writes. “Americans overwhelmingly preferred baseball, a game in which a lot of players stand around while not much happens, to soccer, a game in which people run back and forth furiously while not much happens.” There are people who write jokes for a living who’d consider that their best work. [Emphasis added.]

Swaim’s discovery that he enjoyed Scalia Speaks far more than he expected to is, I’m pleased to say, an observation I’ve received from several other early readers, including some jaded Supreme Court reporters who wouldn’t have counted themselves among Scalia’s biggest fans.

So do yourself a favor, and buy Scalia Speaks now.

This Day in Liberal Judicial Activism—September 29

by Ed Whelan

1958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy. The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program. After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.” Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply. As leading liberal scholar Laurence Tribe has acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means: “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”

Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

In Strong Support of Kyle Duncan for the Fifth Circuit

by Carrie Severino

As reported in various news outlets this afternoon, I want to commend President Trump for choosing a fantastic slate of nominees for the Fifth Circuit, in particular Kyle Duncan, a brilliant appellate lawyer and Louisiana native nominated to that state’s seat.

Kyle served four years as Louisiana’s first Solicitor General, performing so well that he has since been called back to represent the state repeatedly as special counsel. He also has extensive experience throughout the Fifth Circuit: before returning home to become Solicitor General, he worked in the Texas Solicitor General’s office and as a professor at the University of Mississippi School of Law.  That has given him the chance not only to practice before the court to which he has been nominated, but also before the Louisiana and Texas Supreme Courts – not to mention having argued twice before the U.S. Supreme Court.  The president has found someone with deep Louisiana roots, an intimate knowledge of the Fifth Circuit, and a national reputation for excellence.

I have watched Kyle successfully handle high stakes litigation in courts across the country, including the Supreme Court, and he is a superstar who can translate sophisticated arguments for the general public.  His knack for thoughtful and incisive legal analysis will serve him well on the Fifth Circuit, as will his humility and integrity.  Kyle is the complete package.  On a personal level, I am proud to call Kyle a friend.  I eagerly anticipate his confirmation.

Who is Justice Don Willett?

by Carrie Severino

Justice Don Willett is President Trump’s nominee to the Fifth Circuit Court of Appeals from Texas.

Age: 51

Current Position: Justice, Supreme Court of Texas (Austin, TX)

Education:

  • B.A., Baylor University (1988), triple major (economics, finance, business administration); member of the Baylor Chamber of Commerce
  • M.A. (Political Science), Duke University (1992)
  • J.D., Duke University School of Law (1992), with honors
  • L.L.M. (Judicial Studies), Duke University School of Law (2016) 

Judicial Clerkships: Judge Jerre S. Williams, U.S. Court Appeals for the Fifth Circuit (1992-1993).

Experience:

  • 1993-1996: Associate, Hayes and Boone LLP (Austin, TX)
  • 1996-2000: Director of Research and Special Projects, Office of Governor George W. Bush (Austin, TX)
  • 2000-2001: Bush-Cheney Presidential Campaign and Transition Team
  • 2001-2002: Special Assistant to the President; Director of Law and Policy for the White House Office of Faith-Based and Community Initiatives (Washington, D.C.)
  • 2002-2003: Deputy Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice (Washington, D.C.)
  • 2003-2005: Deputy Texas Attorney General, Office of the Attorney General of Texas (Austin, TX)
  • 2005-present: Justice, Supreme Court of Texas (Austin, TX)

Notable Matters:

  • Governor Rick Perry appointed Justice Willett to the Texas Supreme Court in 2005. He was subsequently reelected to six-year terms in 2006 and 2012.
  • As Deputy Texas Attorney General, Justice Willett was involved in several of the state’s litigation matters, including defending the Ten Commandments monument on the grounds of the Texas State Capitol.
  • In 2015, Justice Willett wrote a concurring opinion in Patel v. Texas Department of Licensing & Regulation, which struck down a Texas state licensing scheme requiring eyebrow threaders to obtain cosmetology licenses necessitating 750 hours of training before they could legally work. Evidence showed that the overwhelming majority of these hours were not related to eyebrow threading. In concurrence Justice Willett wrote, “Threaders with no license are less menacing than government with unlimited license.”

Professional Associations: Justice Willett is an elected member of the American Law Institute. He serves on the board of numerous non-profit associations, including the National Fatherhood Initiative, Big Brothers and Big Sisters of Central Texas, and the Texas Review of Law and Politics. Justice Willett is listed as an expert for The Federalist Society, for whom he has written and spoken about regulatory and appellate law.

Awards: Jurist of the Year (Texas Review of Law and Politics); Outstanding Young Alumnus of Baylor University; the Price Daniel Distinguished Public Service Award (Baylor University); the Faith and Integrity in Legal Services Award; the Pro Texana Medal of Service; the Austin Under 40 Award for Government and Public Affairs.

Biographical Notes: Justice Willett is a Texas native and grew up in Kaufman County. He is the adopted son of parents who did not graduate from high school, and is the first college graduate in his family. Justice Willett is married and has three children. He is a former rodeo bull rider.

 

Who is James Ho?

by Carrie Severino

James Ho is President Trump’s nominee to the Fifth Circuit Court of Appeals from Texas.

Age: 44 (approximate)

Current Position: Partner, Gibson Dunn & Crutcher LLP (Dallas, TX)

Education:

  • B.A., Stanford University (1995), with honors
  • J.D., University of Chicago (1999), high honors; Order of the Coif; Editor, University of Chicago Law Review

Judicial Clerkships: Judge Jerry Smith, U.S. Court Appeals for the Fifth Circuit (1999-2000); Associate Justice Clarence Thomas, Supreme Court of the United States (2005-2006)

Experience:

  • 2000-2001; 2006-2008: Associate and Of Counsel, Gibson Dunn & Crutcher LLP (Dallas, TX)
  • 2001-2003: Attorney Advisor, Office of Legal Counsel, U.S. Department of Justice (Washington, D.C.)
  • 2003-2005: Chief Counsel, Senator John Cornyn, U.S. Senate Judiciary Committee (Washington, D.C.)
  • 2008-2010: Solicitor General of Texas, Office of the Attorney General of Texas (Austin, TX)
  • 2010-present: Partner, Gibson Dunn & Crutcher LLP (Dallas, TX)

Notable Matters:

  • As a partner and co-chair of Gibson Dunn & Crutcher’s Appellate and Constitutional Law practice group, Mr. Ho’s practice focuses on complex appellate, constitutional and business litigation. Mr. Ho has presented over 45 oral arguments in federal and state courts nationwide, including the U.S. Supreme Court, and over 25 arguments before the U.S. Court of Appeals for the Fifth Circuit and the Texas Supreme Court.
  • Mr. Ho helped lead the Civil Rights Division of the U.S. Department of Justice during the first year of the George W. Bush Administration. He also served as an attorney-advisor in the Office of Legal Counsel, counseling the White House and other Administration officials on constitutional and other complex legal issues.
  • As the Solicitor General of Texas, Mr. Ho earned the highest win rate of any Texas solicitor general before the U.S. Supreme Court, and won two Best Brief Awards from the National Association of Attorneys General.

Professional Associations: Mr. Ho is co-chair of the Judiciary Committee of the National Asian Pacific American Bar Association. He is also vice-chair of the Federal Judicial Evaluation Committee, which evaluates appointments to the federal bench and U.S. Attorney in Texas. He has previously served on the U.S. Magistrate Judge Merit Selection Panel for the Northern District of Texas, the Texas Supreme Court Historical Society Board of Trustees, the Continuity of Government Commission, and the U.S. delegation to the United Nations Committee on the Elimination of Racial Discrimination.

Awards: For his service at the Office of Legal Counsel at the Department of Justice, Mr. Ho was awarded the Medal for Exceptional Civilian Service from the Office of the Secretary of Defense. Mr. Ho has also been named as a leading appellate lawyer by The Best Lawyers in America, The Legal 500, Texas Super Lawyers, and D Magazine.

Biographical Notes: Mr. Ho was born in Taiwan and is the first Asian-American Solicitor General of Texas. He is married and has a twin son and daughter.

 

Who is Kyle Duncan?

by Carrie Severino

Kyle Duncan is President Trump’s nominee to the U.S. Court of Appeals for the Fifth Circuit from Louisiana.

Age: 45 (approximate)

Current Position: Partner, Schaerr/Duncan LLP (Washington, D.C.)

Education:

  • J.D., Louisiana State University (1997)
  • LL.M., Columbia University (2004)

Judicial Clerkships: Judge John M. Duhé, Jr. of the U.S. Court of Appeals for the Fifth Circuit

Experience:

  • 1999-2002: Assistant Solicitor General, Texas Attorney General’s Office (Austin, TX)
  • 2004-2008: Assistant Professor of Law, University of Mississippi School of Law (Oxford, MS)
  • 2008-2012: Solicitor General for the State of Louisiana (Baton Rouge, LA)
  • 2012-2014: General Counsel, The Becket Fund for Religious Liberty (Washington, DC)
  • 2014-present: Partner, Schaerr/Duncan LLP (Washington, DC)

Notable matters:

  • Mr. Duncan has extensive appellate litigation experience and has has argued over 30 cases in federal and state appellate courts, including the U.S. Supreme Court, the U.S. Court of Appeals for the Fifth, Tenth, and D.C. Circuits, and the Louisiana and Texas Supreme Courts. Mr. Duncan has argued two cases before the U.S. Supreme Court.
  • In his capacity as Solicitor General for Louisiana, Mr. Duncan successfully argued Connick v. Thompson, 563 U.S. 51 (2011), in the U.S. Supreme Court, which held that the municipality could not be held liable for failure to train its prosecutors to turn over exculpatory evidence on the basis of a single proven violation of that obligation.
  • As General Counsel at The Becket Fund, Mr. Duncan was lead counsel in Burwell v. Hobby Lobby Stores, Inc. (2014), which protected the conscience rights of business owners. He also successfully defended Louisiana’s marriage laws in Robicheaux v. Caldwell in the Fifth Circuit.
  • As a partner at Share/Duncan, Mr. Duncan was counsel of record in the Gloucester County School Board v. G.G., which considered whether the Department of Education’s guidance that Title IX’s prohibition against “sex” discrimination includes “gender identity” and that a funding recipient providing sex-separated facilities, such as bathrooms and locker rooms, must allow transgender students into the bathroom or locker room of their choice. Mr. Duncan also represented North Carolina legislative leaders in connection with House Bill 2, the “bathroom bill.”

Professional Affiliations: Mr. Duncan is listed as an expert for The Federalist Society, for whom he has spoken about the Supreme Court and appellate law.

Biographical Information: Mr. Duncan is married and has four children.

Who is Judge Kurt Engelhardt?

by Carrie Severino

Judge Kurt Engelhardt is President Trump’s nominee to the Fifth Circuit Court of Appeals from Louisiana.

Age: 57 (approximate)

Current Position: Chief Judge, U.S. District Court for the Eastern District of Louisiana

Education:

  • B.A., Louisiana State University (1982)
  • J.D., Louisiana State University Law Center (1985)

Judicial Clerkships: Judge Charles Grisbaum, Louisiana Court of Appeal for the Fifth Judicial Circuit (1985-1987)

Experience:

  • 1987-2001: Associate and Partner, Hailey, McNamara, Hall, Larmann & Papale LLP (Metairie, Louisiana)
  • 2001-2015: Judge, U.S. District Court for the Eastern District of Louisiana (New Orleans, LA)
  • 2015-present: Chief Judge, U.S. District Court for the Eastern District of Louisiana (New Orleans, LA)

Notable Matters:

  • At his law firm, Judge Engelhardt’s practice included all aspects of commercial transactions and commercial litigation, including real estate, bankruptcy, insurance defense and coverage issues, RICO, contract disputes, and construction litigation. He also did some personal injury litigation and white-collar criminal defense work.
  • President George W. Bush nominated Judge Engelhardt to a seat on the U.S. District Court for the Eastern District of Louisiana in 2001.
  • In 2013, Judge Engelhardt granted a temporary restraining order that prohibited the City of New Orleans from enforcing its “Super Bowl Clean Zone” law, which restricted signs and banners during Super Bowl week, outside the immediate area of the Superdome during Super Bowl week on First Amendment grounds. The original ordinance was far broader in terms of its geographical scope.
  • Also in 2013, Judge Engelhardt was the presiding judge in United States v. David Rainey, involving BP Executive David Rainey and the BP Gulf Coast Oil Spill. Judge Engelhardt dismissed the government’s charge of obstruction of Congress against Rainey, finding that the indictment failed to allege that Rainey knew about the pending congressional investigation he was charged with obstructing, and because it wasn’t clear that such a charge applies to subcommittee investigations.

Professional Associations: Judge Engelhardt serves on the U.S. Fifth Circuit’s Committee on Criminal Pattern Jury Instructions. He is also a member of the Advisory Board of the New Orleans Chapter of The Federalist Society; the Board of Directors of the New Orleans Chapter of the Federal Bar Association; and the American Judicature Society.

Awards and Honors: In 2004, Chief Justice Rehnquist appointed Judge Engelhardt to serve on the Judicial Conference Committee on Federal-State Jurisdiction, where he served two terms. He also previously served as a member of the Louisiana Judiciary Commission.

Biographical Notes: Judge Engelhardt is a Louisiana native.

 

 

 

 

White House Announces Fifth Circuit Nominees

by Carrie Severino

According to reports, today brings the announcement of another stellar group of judicial nominees, including four outstanding nominees to the U.S. Court of Appeals for the Fifth Circuit. The President has now nominated a total of eighteen circuit court judges, three of whom have been confirmed to date. (Ralph Erickson, nominee to the U.S. Court of Appeals for the Eighth Circuit, is scheduled for a floor vote today.)

Fifth Circuit: Don Willett

Fifth Circuit: Jim Ho

Fifth Circuit: Kyle Duncan

Fifth Circuit: Kurt Engehardt

NYT Hit Piece on CA7 Nominee Amy Barrett’s Religious Practices—Part 1

by Ed Whelan

“Some Worry About Judicial Nominee’s Ties to a Religious Group.” That’s the odd title of religion reporter Laurie Goodstein’s New York Times article on Seventh Circuit nominee Amy Coney Barrett’s membership in an ecumenical Christian group called People of Praise.

Some observations:

1. After Senator Feinstein’s display of anti-Catholic bigotry against Barrett, Goodstein pivots to suggest that Barrett might not really be a “faithful Catholic.” “Some of [People of Praise’s] practices would surprise many faithful Catholics,” she writes. Among other things:

Some former members criticize the group for deviating from Catholic doctrine, which does not teach “male headship,” in contrast to some evangelical churches.

Note that Goodstein here seems to present as fact that “Catholic doctrine … does not teach ‘male headship.’” But the apostolic letter from Pope John Paul II that she links to explains and defends (in section 24) what the Letter to the Ephesians means by the disputed passage, “the husband is the head of the wife.” In other words, Catholic doctrine does teach a concept of “male headship.” Goodstein doesn’t even acknowledge, much less try to satisfy, her burden of showing that People of Praise’s understanding of the concept of “male headship” differs from Catholic doctrine.

People of Praise is interdenominational, but (according to Wikipedia) “more than 90% of its members are Roman Catholic.” Elements of the Catholic charismatic renewal might indeed “surprise many faithful Catholics,” but so far as I’m aware no Catholic authority has ever faulted Catholics for being part of People of Praise.

Indeed, just a few years months ago Pope Francis appointed a member of People of Praise as auxiliary bishop of Portland, Oregon. So much for the suggestion that faithful Catholics can’t be members of People of Praise.

People of Praise will not, of course, be part of every Catholic’s religious vocation, nor will all members of the group have lived out their charism in a manner that is beyond criticism. But it’s bizarre of Goodstein to use People of Praise to seem to call into question Barrett’s adherence to her Catholic faith.

2. Goodstein insinuates that Barrett improperly failed to list her membership in People of Praise on her Senate questionnaire response. But the Senate questionnaire, presumably because of concerns about improper inquiry into a nominee’s religious beliefs (or lack thereof), doesn’t ask about membership in religious organizations. (Contrast question 11.a.) So the simple answer to the climactic question from law professor Cathleen Kaveny that ends Goodstein’s article—“why didn’t she disclose this [i.e., her membership in People of Praise]?”—is that the questionnaire didn’t ask for it.

I’m reliably informed that Goodstein did not even raise this matter with the White House when she asked questions yesterday afternoon for her story. Had she done so, she might have avoided her mistaken insinuation.

More to come.