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Smearing Kyle Duncan

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I can’t let this one pass. I don’t know Kyle Duncan, a Trump nominee for the federal bench, but several friends of mine do, and vouch for him. Those are my cards on the table. Today a woman named Laverne Thompson writes in The New York Times a piece contending that Duncan is unfit to be a judge. Her story is emotionally gripping, for sure. Excerpts:

If you want to understand how Kyle Duncan, President Trump’s nominee to the United States Court of Appeals for the Fifth Circuit, would serve in that role, consider how he behaved toward my late husband, John Thompson.

J.T., as we called him, spent 18 years in prison, 14 of them on death row, for a murder he did not commit. When it emerged that prosecutors in the office of Harry Connick, who was the former New Orleans district attorney, had destroyed evidence of his innocence to gain that conviction, he was granted a new trial, at which he was acquitted.

After his release, J.T. considered the long list of innocent men sent to prison by prosecutors in that same office who had withheld evidence. It was clear to him, as it is to any impartial observer, that the district attorney’s office for New Orleans has a track record of failing to turn over favorable evidence to defendants.

It is horrifying what happened to John Thompson. Thompson deserved recompense, no question about it — and eventually, the state Supreme Court agreed, and awarded him millions. So what does this have to do with Kyle Duncan? From the piece:

Mr. Duncan is best known for his work in Washington, D.C., as the former general counsel for the Becket Fund for Religious Liberty, a conservative organization that “defends religious liberty for all.” He played a leading role in opposing the provision of the Affordable Care Act requiring employers to provide insurance coverage for contraceptives. Mr. Duncan also defended North Carolina’s photo ID law that the Court of Appeals for the Fourth Circuit wrote had targeted black voters “with almost surgical precision.” He also defended Louisiana’s ban on gay marriage in several different courts before the Supreme Court prohibited state bans on gay marriage.

Ah, so he defended clients unpopular on the Left. Well, that settles it: he must be a BIGOT. And for the record, the Becket Fund is not a conservative organization. Take a look at their case file. They defend non-Christians too, e.g., Sikhs, Orthodox Jews, and Native Americans. They are about defending religious liberty, period. Laverne Thompson, or whoever wrote this op-ed for her, is smearing Duncan by association.

He worked for the Texas solicitor general’s office — does Mrs. Thompson realize that? And hewas appointed at times by the Louisiana state Attorney General to represent the state in litigation [including representing the state in John Thompson’s lawsuit against Orleans Parish, I ought to have made clear]. Does Laverne Thompson believe that a lawyer should not defend the client he has been hired to defend?

No … but that is beside the point, she says:

Mr. Duncan, I’m sure, represented his client — J.T. would always say that everyone deserves a lawyer. But the positions Mr. Duncan argued and won are not the positions of a man who can suddenly become a fair referee in the dozens of similar cases that would come before him as a judge. Mr. Duncan’s confirmation could serve as a declaration to prosecutors that winning at all costs remains, as it has been far too often in the past, the path to success.

This is profoundly unjust. She claims that Kyle Duncan can’t be fair because he successfully argued for clients disliked by Mrs. Thompson. And his argument in the Thompson case failed. [UPDATE: A reader points out that Duncan actually won this case. I apologize for the confusion. — RD]

How does that work, anyway? How is it that the positions a lawyer defends in court render him unfit to be a judge? There is no logic here at all. Mrs. Thompson (or her ghostwriter) is relying entirely on guilt by association.

What happened to Mrs. Thompson’s late husband was horrifying. I’m glad he won that case. But that has nothing at all to do with whether or not Kyle Duncan is fit to be a judge. All people — even people we consider bad — deserve the best defense in court they can muster. Lawyers who defend unpopular clients and positions, whether on the Left or the Right, must not be made to fear that their careers will be jeopardized by the popularity of those clients. This is a basic principle that all sides in our democracy should defend.

I hope that the Senate recognizes this left-wing smear for what it is, and approves Kyle Duncan’s nomination. To deny him this seat on the basis that Mrs. Thompson cites would be a terrible precedent to set.

about the author

Rod Dreher is a senior editor at The American Conservative. He has written and edited for the New York Post, The Dallas Morning News, National Review, the South Florida Sun-Sentinel, the Washington Times, and the Baton Rouge Advocate. Rod’s commentary has been published in The Wall Street Journal, Commentary, the Weekly Standard, Beliefnet, and Real Simple, among other publications, and he has appeared on NPR, ABC News, CNN, Fox News, MSNBC, and the BBC. He lives in Baton Rouge, Louisiana, with his wife Julie and their three children. He has also written four books, The Little Way of Ruthie Leming, Crunchy Cons, How Dante Can Save Your Life, and The Benedict Option.

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