Executive Session

Floor Speech

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Mr. MERKLEY. Madam President, the preamble of our Constitution lays out a vision that includes establishing justice and promoting the general welfare. Certainly we have the challenge in America of making sure the doors of opportunity are wide open and not slammed shut.

For centuries, we have been working to try to make sure that vision comes into full realization, but today we are considering the nomination of Stuart Kyle Duncan to a lifetime appointment on the Fifth Circuit Court of Appeals. This individual is not supportive of our constitutional vision of open doors; he is intent on slamming them shut--slamming them shut on all LGBTQ communities; slamming them shut on women seeking reproductive rights and healthcare; slamming opportunity shut on those who simply wish to vote in America in fulfillment of the vision of our constitutional democratic Republic; slamming the doors shut on those who are here and have been here legally, who are seeking to become citizens.

Mr. Duncan is probably best known for his work on Burwell v. Hobby Lobby, a landmark case opposing the ACA's requirement that employers provide insurance coverage opportunity for contraception and for undermining the healthcare of countless women across America.

You might say: Didn't his side of this case win in the courts? Well, not for the reasons that this individual put forward. The Court rejected the arguments Kyle Duncan made. He refused to acknowledge the importance of birth control in women's lives, arguing that the government does not have a compelling interest in ensuring access to birth control without cost-sharing. The Court said that is wrong and that the government does have a compelling interest. Mr. Duncan argued that the Court was not required to consider the impact of this law--or the possibility of overturning it--on employees under the Religious Freedom Restoration Act. Every single member of the Court, whether in the majority or in the minority on the opinion, threw out that argument, reaffirming that burdens on third parties must be considered. Although the verdict came down on the side Mr. Duncan advocated for, the Court soundly rejected his arguments and his reasoning.

After Hobby Lobby, he wrote an amicus brief in Zubik v. Burwell on behalf of Eternal World Television Network, a nonprofit seeking an exception from the ACA birth control benefit. He made some of those same arguments again, and again the Court rejected his reasoning and directed the government and all parties involved to arrive at an approach that ensures that affected women ``receive full and equal health coverage, including contraceptive coverage.''

It is certainly a concern to have a nominee who wants to slam the door shut on the freedom of women to access the reproductive healthcare that they desire, but there is more door-slamming here than that. He is an ardent opponent to equality and opportunity for the LGBTQ community here in the United States of America. He is recognized as one of our Nation's leading opponents of opportunity for the LGBTQ community.

He authored legal briefs opposing marriage equality in Obergefell v. Hodges, going so far as to question the legitimacy of the Supreme Court when the Court came down saying that ``love is love'' and that marriage equality is the law of the land under the Constitution of the United States of America. He called that decision ``an abject failure.''

I ask you, what kind of fairness do you anticipate from a judge who is ardently opposed to the freedom of opportunity for LGBTQ Americans, who condemns a previous decision of the Supreme Court as ``an abject failure,'' and who said that this decision would ``imperil civic peace''? He said:

No one can possibly predict with any degree of confidence what are all the possible ramifications for our society that are going to take place. No one could have predicted all of the social pathologies from no-fault divorce. This is a far more radical change than no-fault divorce.

He said that ``harms'' to our democracy from marriage equality ``would be severe, unavoidable, and irreversible.''

Certainly, he wanted to slam the door on marriage opportunity for LGBTQ Americans, but he made an outrageous argument that the concern of others should enable his court, as he envisioned it, to deprive Americans of the opportunity to marry the individual they love--no concern for the Constitution, just that some folks might find it uncomfortable. He made an extensive, hyperbolic, hysterical argument that it would completely debase society for people to be with the person they love.

His attacks against the LGBTQ community go on and on, from introducing expert declarations in one case that characterized transgender Americans as ``delusional.'' If you have been characterized as delusional based on who you are and whom you love, what fairness can you expect from the judgment of this individual? He fought to deny parental rights to the woman who adopted the children of her same-sex partner--the same children she had helped raise for 8 years.

Clearly, this individual is interested in rightwing, opportunity- denying legislating from the bench, not protecting the vision of opportunity embedded in our Constitution.

All that doesn't even touch on his other efforts, such as his effort to make it difficult for communities of color or communities of modest economic means to be able to vote in the United States of America. If you believe in the Constitution of the United States, you should be a fierce advocate for voter empowerment and participation, not voter suppression, but this individual is a fierce advocate for voter suppression. Isn't it right to have people confirmed to the bench for a lifetime appointment who actually admire the vision of our Constitution for opportunity and for citizen engagement, not one who wants to tear down opportunities and slam doors on opportunities and stop people from voting.

That is not all. There is more. There are his attacks on deferred action for parents of Americans in which he spreads false and frightening stereotypes about immigrants, echoing his previous hysterical comments, saying that ``[m]any violent criminals would likely be eligible to receive deferred action under DAPA's inadequate standards.'' It is kind of the last refuge of a scoundrel, an individual who proceeds to attack our immigrants, saying: Oh, they might all end up being criminals--completely contrary to the facts, where immigrants are far more law-abiding than the vast average among Americans born here in the United States.

Isn't it the case that we are a nation of immigrants? Unless you are 100 percent Native American Indian, then you are here because you immigrated or your parents immigrated or your ancestors at some level immigrated generations ago. So basically descending to attack immigrants as all criminals is simply another example of this individuals's unsuitability to serve on the bench.

We are a ``we the people'' nation, founded on equality, justice, and opportunity for all. Our Nation is about opening doors for each individual to participate to the full degree of their talent, not to have the prejudices of some allow them to slam doors on others. That is why this individual, Stuart Kyle Duncan, should never be on the floor of the Senate to be confirmed as a judge in the United States of America. Let him carry on his advocacy outside the hallowed halls of the courtroom but not inside, sitting on the bench. That is why everyone here tonight should vote against confirming this nomination.

Thank you, Madam President.

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