Why judicial nominees wendy vitter, kyle duncan in liberal groups’ cross-hairs state politics theadvocate.com

Vitter’s refusal to endorse the Supreme Court’s unanimous, landmark decision outlawing segregation — its 1954 ruling in Brown v. Board of Education of Topeka, Kansas — stoked outrage among some, with several Democratic senators calling her non-answer last week at a Senate Judiciary Committee hearing on her nomination “disqualifying.”

Vitter, the general counsel for the Archdiocese of New Orleans and the wife of former Republican Sen. David Vitter, refused to say whether the Supreme Court decided the case correctly when asked by Sen. Richard Blumenthal, D-Connecticut. Instead, Vitter would only say she’d be “bound” by that and other Supreme Court decisions, though she later agreed when asked whether segregation was immoral.

Most nominees for federal judgeships dodge questions about past Supreme Court rulings, especially recent and controversial ones, such as the lightning-rod 1973 Roe v. Wade decision that established a right to abortion. But Vitter’s critics found her refusal to agree with Brown v. Board galling and potentially disqualifying.

“It was an absolutely horrible answer,” U.S. Rep. Cedric Richmond, a New Orleans Democrat and the chairman of the Congressional Black Caucus, told The Advocate on Wednesday. “Even if you don’t want to go down the line of getting into every little case, you can absolutely say the decision ending segregation was an absolute must and the right and just thing to do.”

She’s also received support from New Orleans Mayor Mitch Landrieu, one of Louisiana’s most prominent Democrats, who wrote in a letter to the Senate Judiciary Committee supporting her nomination that he could “personally attest to her strong moral character.”

Vitter told Blumenthal at her hearing before the Senate Judiciary Committee that offering her opinion on the Brown vs. Board of Education decision might lead her down a “slippery slope” of weighing in on other decisions. Indeed, Blumenthal followed up his questions about Brown vs. Board by asking Vitter about the Roe vs. Wade decision.

Past nominees, however, have endorsed the Brown vs. Board while refusing to go further. Conservative Supreme Court Justice Neil Gorsuch, for example, praised the decision and called the 1896 decision in Plessy v. Ferguson — which upheld segregation and which Brown v. Board overturned — “one of the great stains on the Supreme Court’s history.”

“Wendy’s going to be controversial because of her pro-life stance; she’s been very vocal,” said Kennedy. “And Sen. (David) Vitter was a senator for a long time and when you’re a senator, you make enemies; it’s just as simple as that. But I do think she’ll be confirmed.”

In perhaps Duncan’s highest-profile case, he successfully led retail firm Hobby Lobby’s fight against covering contraception under employee health insurance plans. The Supreme Court sided with the firm, holding that the religious beliefs of the corporation’s owners allowed them to ignore a federal law requiring health plans to cover birth control.

That record has led liberal groups to launch repeated attacks on Duncan, labeling him a threat to civil rights. Lambda Legal, a leading LGBT advocacy group, launched ads against him and declared that he’d “spent his entire career working to annihilate civil rights progress.”

Conservative groups, meanwhile, have flocked to Duncan’s defense, seeing him as a potentially staunch ally on what’s already one of the country’s most conservative appellate courts who might tilt the Fifth Circuit in favor of stricter abortion restrictions.

Kennedy said his fellow senators have been deeply divided on Duncan’s nomination and whether Republicans could piece together the backing of at least 50 senators to confirm him remained an open question for months. But Kennedy said behind-the-scenes lobbying has appeared to pave the way.

“I feel very confident, after some hard work that we’ve done, that he’ll be confirmed. I wouldn’t have said that 10 days ago,” Kennedy said. “Kyle’s been a lawyer for a lot of high-profile cases. I don’t think it was any secret that Kyle’s vote was always going to be close but we’ve done a lot of hard work and I feel very confident right now.”