Why work? It's a question the Supreme Court will answer
I battled Trump’s judicial nominee in court — I can't recommend him enough
Kyle Duncan is a magnificent nominee for the Fifth Circuit who ought to be swiftly confirmed. I have known him as a colleague and scholar of constitutional law at Louisiana State University Law School, and clashed with him as an adversary in the Louisiana Supreme Court's same-sex marriage case that followed Obergefell v. Hodges.
Ultimately, that case declared Louisiana's prohibition of same-sex marriages unconstitutional. Kyle represented Louisiana; I represented a same-sex couple, two women, involved in the case. We were fortunate enough to prevail over Kyle's advocacy.
Having battled on the front lines in the same-sex marriage litigation, I can attest to the passionate disagreement and often contentious nature of the issue. Emotions were particularly raw when I litigated opposite Kyle in the immediate wake of Justice Kennedy's opinion in Obergefell.
Through it all, however, I always appreciated and respected Kyle's advocacy for his client and his respect for the humanity of the same-sex couples who would be most affected by the case. While I disagreed with many of his arguments, often emphatically, I never found a trace of bias, bigotry, or any disrespect towards the same-sex individuals in the case.
Both of us strove mightily as adversaries. But we continue to eat and drink as friends.
Kyle knows well the difference between the advocate's role for his client (in the same-sex marriage case, the State of Louisiana) and what he would be called upon to decide as a judge on the Fifth Circuit. I maintain this view of Kyle even after having faced off against him in the highly charged atmosphere of same-sex marriage litigation. His ability to act as a judge and not advocate will surely carry over to other questions of public importance facing the Fifth Circuit.
As an appellate lawyer, Kyle Duncan is uniquely qualified. I have long taught Appellate Practice and Procedure at LSU Law Center, where I have my students listen to Kyle's successful U.S. Supreme Court argument in Connick v. Thompson.
In that case, he successfully argued to overturn a jury verdict that a district attorney's office should be held liable for failure to train its prosecutors based on a single Brady violation. The case is a difficult one, because the actions of one rogue prosecutor caused John Thompson, a father of two, to be wrongfully imprisoned.
But Kyle put aside personal feelings to argue for the rule of law, and the Supreme Court agreed with him.
Kyle Duncan's argument in Connick was compelling and brilliant.
The District Attorney's office ultimately prevailed, with the Supreme Court holding that the failure to train prosecutors in the case did not met the deliberate indifference standard when there was no pattern of similar Brady violations by the office. The case stands as an exemplary piece of appellate advocacy.
Kyle Duncan is as sharp a lawyer as any of the leading Supreme Court advocates with whom I am familiar, and I have had the good fortune of observing the work of the Fifth Circuit and the Supreme Court for over 40 years.
In my judgment, Kyle Duncan, unquestionably, will make a surpassing Fifth Circuit judge and jurist. His confirmation should be supported by all who value judges committed to fairness and scrupulous application of the law. It's time for Kyle Duncan to be confirmed.
Paul R. Baier is Judge Henry A. Politz Professor of Law, LSU Law Center.