Joe Manchin

Stuart Kyle Duncan is a militant right-wing extremist. And thanks to Senator Joe Manchin (D-West Virginia), he will spend the rest of his life as a federal judge.

On Tuesday, the Senate voted by a 50-47 margin to confirm Duncan to a lifetime judicial appointment as United States Court of Appeals Judge for the Fifth Circuit, which encompasses Louisiana, Mississippi, and Texas. The roll call was a party-line vote, with the exception of Joe Manchin, who sided with 49 Republican senators (Republicans John McCain and Rand Paul did not vote, and Democrat Tammy Duckworth also did not vote).

Duncan, a partner at the Louisiana law firm Schaerr Duncan LLP, might be better known for his role as general counsel of the Becket Fund for Religious Liberty — the group behind the Supreme Court’s infamous Burwell v. Hobby Lobby decision.

As lead counsel for Becket, Duncan helped Hobby Lobby formulate its legal argument that corporations should be entitled to “religious liberty,” meaning that the store has the right to deny contraceptive coverage to female employees as part of the Affordable Care Act based on Hobby Lobby’s owners’ fundamentalist Christian ideology.

In addition to his role in the Hobby Lobby case, Duncan also helped Becket win a case making it easier churches and religious schools to skirt federal anti-discrimination laws. In 2012, Becket represented the Hosanna-Tabor Evangelical Lutheran Church & School in its legal battle with a teacher fired due to her narcolepsy, ultimately leading to a unanimous decision from the Supreme Court that federal discrimination rules don’t apply to religious schools in their selection of leaders.

However, Duncan’s judicial activism doesn’t begin and end with religious institutions. As Senator Dianne Feinstein (D-California) pointed out, Duncan was also a staunch opponent of the Fourth Circuit’s decision to strike down North Carolina’s voter ID law in 2016, which judges branded as openly racist in its intent to deliberately suppress the voices of black voters.

Kyle Duncan’s advocacy for laws targeting black voters drew the ire of the National Association for the Advancement of Colored People (NAACP). In a letter to Senate leadership (PDF), NAACP President Derrick Johnson pointed out how Duncan filed an amicus brief asking the Supreme Court to overturn a ruling by the Fifth Circuit (which he is now confirmed to sit on) that tossed out a similar racist voter ID law based on its violations of the Voting Rights Act of 1965.

“Texas had relied on the myth of voter fraud to enact the law, and Duncan endorsed this manufactured motive in his brief, writing that ‘voter identification requirements not only help prevent voter fraud, but also foster public confidence in elections.'” Johnson wrote. “The Supreme Court declined review.”

The NAACP’s opposition to Duncan’s confirmation was based on the fact that in its jurisdiction of Louisiana, Mississippi, and Texas, the U.S. Court of Appeals for the Fifth Circuit represents a higher percentage of people of color than any other circuit in the country, and oversees a large number of cases involving racial, employment, and housing discrimination, among other issues pertaining to discrimination.

Duncan’s confirmation — with the help of Joe Manchin — puts him on the federal bench for life, barring impeachment, which is statistically unlikely. In the last 215 years, only 15 federal judges have ever been impeached, with the U.S. Senate only convicting eight of those 15.

Joe Manchin is up for re-election in 2018, but faces off with Democratic primary challenger Paula Jean Swearengin on May 8.


Michael Boone is a freelance journalist and columnist writing about politics, government, race, and media. He graduated from Texas Southern University’s School of Communication, and lives in Houston’s Third Ward.

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