He is a darling of the religious right, a razor-sharp lawyer who once waged a culture war on behalf of former Gov. Bobby Jindal’s administration, earning a fortune from Louisiana taxpayers to fight against marriage equality and for onerous restrictions on abortion clinics, cases he ultimately lost.
“(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.
But Kyle Duncan is best known for representing Hobby Lobby as lead counsel in the landmark case Burwell v. Hobby Lobby.
The Supreme Court held- also in a split decision- that privately-owned, for-profit companies could assert a religious belief in order to prevent female employees from accessing contraception medication under their health insurance plan. Although the decision is limited to so-called “closely-held” corporations, it nonetheless represented a major triumph for the religious right.
And it landed Duncan a nomination from President Trump to the U.S. 5th Circuit Court of Appeals, which is headquartered in New Orleans and has jurisdiction over Texas, Louisiana, and Mississippi.
Duncan performed deftly during his confirmation hearing on Nov. 29th (you can watch all three hours here), which was apparently enough to convince Sen. Kennedy to issue a statement of support that he’d been previously reluctant to send.
Kennedy had already been under enormous pressure from White House counsel Don McGahn to support Duncan.
“Mr. McGahn was very firm that Mr. Duncan would be the nominee- to the point that he was on the scarce side, in one conversation, of being polite,” Kennedy said during the hearing. “Let’s suppose you were a United States senator and you were sitting on the Judiciary Committee, and a very prominent attorney in this town suggested to you that if you didn’t vote the way this particular attorney wanted you to vote, that you would be punished politically.”
Suffice it to say, Kennedy knows Duncan more than Don McGahn, and he obviously did not prefer Duncan’s nomination. Still, the threats from the White House worked.
If confirmed- and there is no reason to think he will not be- Duncan will hold a seat that historically has been assigned to a Louisiana resident.
Duncan, to be sure, is a native of Baton Rouge and a graduate of Louisiana State University, but he has lived outside of the state for most of his adult life. He moved to Texas in 1998, working for a year as an associate for a firm in Houston and then as an assistant to the Texas Solicitor General for two years. There was a brief stint at another firm in Austin before he moved to New York, where he earned an L.L.M. from Columbia University. In 2004, Duncan took a job teaching law at the University of Mississippi, and four years later, in 2008, he decided to leave academia and return to the public sector as an attorney.
Although it is not indicated in the written response he provided to the Senate Judiciary Committee’s questionnaire, according to The Advocate, Duncan moved from Mississippi to the suburbs of Washington, D.C. nearly a decade ago, where he has lived and practiced law ever since, a fact not lost on Sen. Kennedy.
“Mr. Duncan has been nominated to fill a seat that has traditionally been a Louisiana seat on the United States Court of Appeals for the Fifth Circuit,” Kennedy, who previously served as Louisiana State Treasurer during the Jindal administration, said. “Mr. Duncan is a Washington lawyer.”
Something else happened in 2008: Bobby Jindal was sworn in as Louisiana’s 55th governor, after winning the primary in a landslide under the direction of his evangelical conservative campaign manager Timmy Teepell.
Teepell, Jindal, and Duncan share a few things in common: They’re all evangelical conservatives (Jindal refers to himself as an “evangelical Catholic;” Duncan is also Catholic); they’re all politically active; they’re all natives of Baton Rouge, and they are all around the same age (Teepell is now 42; Jindal 46, Duncan 45).
Shortly before Bobby Jindal took the oath of office, Buddy Caldwell, a Jewish Democrat from north Louisiana, was sworn in as the state’s next Attorney General. Caldwell, who later defected to the Republican Party, is currently in his early 70s, nearly three decades older than the young evangelical Christian conservatives that occupied the office space below him in the state Capitol.
Caldwell was convinced to hire Kyle Duncan as an assistant attorney in his office, ostensibly giving him the title of Appellate Chief, though no one in the media or the state government ever referred to him as such at the time.
Notably, in his written response, Duncan claims he began his job with the Louisiana Attorney General’s Office in 2008 on one page, and on another page, he states his employment actually began in 2009, which makes more sense; he spent almost the entirety of 2008 either in Mississippi teaching law or on the lecture circuit.
Either way, during his three years as a state employee, Kyle Duncan largely managed to avoid the spotlight, earning only a handful of references in the state media, arguing in favor of a law that sought to prohibit same-sex couples from both being listed on their child’s birth certificate and for his work defending the case against Orleans D.A. Harry Connick to the United States Supreme Court. He wrote a handful of amicus briefs and served as supporting counsel on four other cases heard by the Supreme Court. He also represented Louisiana in state court in a case involving insurance companies who refused to compensate victims of hurricane Katrina, which is arguably the least controversial part of his resume.
There is no denying that Duncan did, in fact, work on multiple assignments during his three years as a state employee. But given the political nature of his work, it seems much more likely that he was under the direction of the evangelical conservative governor with presidential aspirations than the small-town criminal prosecutor who became attorney general, something that became even more apparent when Duncan moved into private practice during Jindal’s second term.
Why does any of this matter?
Because Duncan and his supporters on the religious right have constructed a different version of his job responsibilities during that short period of time.
“From 2008-12, Kyle served as Louisiana’s first Solicitor General, representing the state and public officials before the U.S. Supreme Court, the U.S. Fifth Circuit, the Louisiana Supreme Court, and federal district courts,” he boasts on his company biography (emphasis added). “Among other successes, he won Connick v. Thompson in the U.S. Supreme Court, reversing a $20 million dollar civil rights judgment against his client.” (The judgment, as noted previously, was in favor of a man who spent 18 years in prison on a wrongful conviction, as a result of prosecutorial misconduct).
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.
To be fair, in 2014, in a story about Caldwell’s decision to re-hire Duncan as a private attorney to defend the state’s ban against same-sex marriage, The Times-Picayune referred to Duncan as “former Louisiana solicitor general” (emphasis added). “Caldwell’s office said Duncan will retain the title of ‘Special Attorney General,'” it reported.
Duncan, however, was never Louisiana’s Solicitor General.
The office does not exist under Louisiana law.
It didn’t exist, even informally, during Caldwell’s tenure.
“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.”
Despite the extensive campaign to reframe Duncan’s position in state government as significantly more prominent and historic than it actually was, Duncan himself acknowledged to the Senate Judiciary Committee a detail he left out from the biography on his law firm’s website. Quoting from page 32:
There is a difference between serving as the state’s first Solicitor General and “fulfill(ing) the functions of a state solicitor general,” and a reason that Duncan chose his words carefully; he was under oath, after all.
As previously mentioned, Duncan did work as an assistant to the Solicitor General of Texas for a couple of years. The Texas Department of Justice describes the “functions” of the job in detail (emphasis added):
As the chief appellate lawyer for the State of Texas, the Solicitor General supervises all appellate litigation on behalf of the Office of the Attorney General. The Office of Solicitor General (OSG) approves all civil and criminal appeals in state and federal courts involving the state, its agencies and its officials. OSG also directly handles those appeals determined to be most significant to Texas and to the development of federal and state jurisprudence and appears on occasion in federal and state trial courts on matters implicating the state’s most critical interests. In addition, OSG regularly authors amicus curiae briefs for submission to the U.S. Supreme Court and other courts across the nation.
The Solicitor General is the state’s chief litigator in the U.S. Supreme Court and the Texas Supreme Court. In addition, as a member of the Attorney General’s executive leadership team, the Solicitor General serves as a top legal advisor to the Attorney General and advises other agency lawyers and state officials on complex constitutional and other legal matters….
The Solicitor General of Texas is supported by two deputies, over a dozen assistant solicitors general and a highly dedicated support staff.
This was never Kyle Duncan’s job when he was employed by the state of Louisiana. If it was, he would have been one of the most powerful people in state government. He wasn’t.
During Jindal’s second term, however, Duncan positioned himself as the administration’s favorite mercenary lawyer, particularly on cases involving cultural and religious issues. And it has been in that position- as a D.C.-based attorney in private practice, with Louisiana as a client- that he’s become more well-known. It’s also earned him a fortune, and it still does. Louisiana Attorney General Jeff Landry continues to shower Duncan with lucrative contracts.
In the past three and a half years, Duncan’s law firm has signed six different professional services contracts with the state of Louisiana, worth a grand total of more than $843,000. You can almost always make more money selling to the government than working for the government. Duncan bills the state $385 an hour.
In September 2016, Duncan and his wife purchased a home in McLean, Virginia for $790,000, according to a real estate database published by The Washington Post.
Louisiana taxpayers have been generous to him, even though they have never had a say in the matter.
In addition to signing six-figure contracts with Duncan, state Attorney General Jeff Landry has vigorously supported his nomination to the 5th Circuit. Landry has issued official press releases lauding Duncan’s record; he published an op-ed in The Hill under the headline “Trump pick Kyle Duncan is the Neil Gorsuch of Louisiana;” he even cut this digital ad:
But he failed to do one important thing.
Last year, before Donald Trump was elected President and before Duncan could have ever contemplated being nominated to serve on the 5th Circuit, Jeff Landry announced he was creating, for the first time ever, a new position in his office: Solicitor General.
There may not be any statutorily-provided powers, but today, Solicitor General of Louisiana is just as real of a job as Captain Crunch. He has a cereal box; the new Solicitor General has a webpage, which proudly announces (emphasis added):
In 2016, Attorney General Jeff Landry appointed Liz Murrill as the first Solicitor General for Louisiana.
The Bayou Brief attempted to contact Mr. Duncan, who, as of the time of publication, has yet to respond.
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