The Fifth Circuit Might Well Be Getting Better If Trump’s Appointments Are Confirmed

It’s still one of the more constitutionally-oriented of the federal appellate courts (Democrats would call it conservative, largely because adhering to the Constitution rather than one’s own policy fetishes is somehow a conservative thing), but the Obama administration did a bit of a number on the Fifth Circuit based in New Orleans.

Looks like the Trump administration is working on a reversal of that trend. The nominees for the new judges on the Fifth Circuit are pretty strong.

Conservative Christian legal warrior Kyle Duncan and Chief U.S. District Judge Kurt D. Engelhardt were nominated Thursday to the Fifth U.S. Circuit Court of Appeals.

Duncan and Engelhardt would replace Judge Eugene Davis, of Lafayette, and another judge expected to take senior status next week. The New Orleans-based 5th Circuit hears appeals from Louisiana, Texas and Mississippi.

President Donald Trump also nominated two from Texas to the 17-seat appellate bench.

The president also nominated Barry Ashe, a partner in the New Orleans office of Stone Pigman Walther Wittmann, to a seat on the federal district court in New Orleans.

The president’s choices in Louisiana and around the country have solid conservative backgrounds and good legal credentials, though some nominees were not traditional picks, said Professor Carl Tobias, who teaches constitutional law at the University of Richmond and comments on legal issues in the national media.

“Judge Engelhardt is a fairly typical nominee, stepping up from the district court to the appellate court. Kyle Duncan is little more outside the box,” Tobias said, adding that none of those nominated Wednesday likely will receive Senate confirmation hearings before the end of the year because of the long line of judicial nominees ahead of them.

A Louisiana native, Duncan practices law in Washington, D.C., specializing in causes involving religious issues and the public sector.

He was hired by then Gov. Bobby Jindal to defend a constitutional challenge to a newly passed state law that required doctors who perform abortions to be affiliated with a hospital. Critics said the provision would significantly hamper legal medical procedures to terminate pregnancies.

Prior to forming a private law firm, Duncan was general counsel of the Becket Fund for Religious Liberty, a nationally recognized Washington D.C. public interest law firm.

I personally heard Duncan speak at a Heritage Foundation event in New Orleans a few years ago. At the time he was the attorney for the Green family, who own the Hobby Lobby retail chain, against an Obamacare requirement they provide insurance coverage for abortions. The talk he gave was one of the more impressive I’ve heard.

But of course, the courts are not mini-legislatures. Simply agreeing with Duncan on politics isn’t enough. What’s important is that he follows the law and the constitution from the bunch rather than attempting to make law we agree with.

And LSU law professor Paul Baier, who litigated against him, seems to think he’ll do that.

“Will the same conservative advocacy find its way into his rulings?” Baier said Thursday. “I have great confidence that Kyle will be responsive to equal civil rights and not sweep them off the table. He follows the law.”

Baier taught Duncan constitutional law at LSU and later faced off against him in the Louisiana Supreme Court over a challenge to the state’s constitutional ban of gay marriage.

Duncan was on the state’s team. Baier represented the appeal of Angela Marie Costanza and Shanelle Brewer, a couple living in Broussard who were legally married in California in 2008.

“He (Duncan) can argue firmly and convincingly. Watch the (video) tape of the arguments, he was masterful,” Baier said. “He cites the law with conviction and his brief writing is great.”

The two Texas appointments are James Ho, who is Texas’ Solicitor General – that’s the job Ted Cruz held before being nominated to the Senate – and Texas Supreme Court Justice Don Willett, who has made himself something of a social media rock star with his frequent Twitter punditry. Willett is a highly-respected jurist, at least in circles that don’t include Democrat activists, who made Trump’s 11-person final Supreme Court Justice list when Neil Gorsuch was ultimately selected.

Ho, Duncan and Willett are all alumni of the Texas Attorney General’s office. The former Attorney General, Gregg Abbott, is now the governor.

Gov. Greg Abbott called them “outstanding.” He worked with both when he was Texas attorney general and said he can “attest to their brilliance as lawyers and their unwavering commitment to the rule of law.”

State Attorney General Ken Paxton said he’s long recommended Willett, Ho and Duncan as Fifth Circuit nominees, noting each was a “key member” of the state’s attorney general’s office. The men “will faithfully adhere to our country’s founding principles embodied in the Constitution,” he said in a statement.

Louisiana congressman Mike Johnson, who is a constitutional scholar in his own right, was ebullient in his praise of the selections in a statement released yesterday…

“I applaud the president for nominating these four exceptional individuals for the Fifth Circuit. Having practiced there, I can say with great confidence that each of them would be an outstanding addition to the court. All four are constitutional conservatives who have served our nation and its judicial system with honor and distinction. I look forward to a timely confirmation process in the Senate.”

It’s a good bet that Duncan and Willett, at minimum, will face a significant fight for confirmation in the Senate. But if the four are added to the 17-judge Fifth Circuit it’s going to return to its rightful place as the leading bastion of constitutional adherence among the federal appellate circuits.

At the end of the day, this is the top reason to celebrate the fact Trump is president.

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