Federalist Society Performance Art: Trumpscum Dershowitz Defends Trumpscum “Judge” Kyle Duncan
David Shasha
Federalist Society Performance Art: Trumpscum Dershowitz Defends Trumpscum “Judge” Kyle Duncan
Indeed, it is hard to keep up with all the Trumpscuminess these days.
Thanks to Trumpscum Dershowitz, Apologist for Sedition, we can learn about Trumpscum “Judge” Kyle Duncan:
https://www.gatestoneinstitute.org/19476/stanford-student-disrupters
The complete article follows this note.
Here is the Trumpscum Duncan’s Wikipedia page:
https://en.wikipedia.org/wiki/Kyle_Duncan_(judge)
The Dersh chastises Stanford students for shouting down the Trumpscum Duncan, but does not mention that Duncan has done his own version of shouting down American citizens from his Fascist Confederate bench:
Both articles follow this note.
It is more of the Trumpscum Free Speech Grift, with a strong attack on Diversity initiatives and the New Racial Consciousness.
Which has been confirmed as a Federalist Society stunt, a la Leonard Leo, which had Duncan arrive at the event with his phone turned on to Record:
The Washington not-Free Beacon came through with the Trumpscum goods right on cue:
Both articles also follow this note.
Note that the latter article was written by Aaron Sibarium, and you know what that means.
Rebbitzin Bengelsdorf!
https://www.thefp.com/p/the-takeover-of-americas-legal-system
WOKE Intersectionality indeed.
It is all New Fascism Performance Art, just in time for Leonard Leo to go full throttle on his DEATH SENTENCE Catholic Fascist act:
https://groups.google.com/g/Davidshasha/c/qnw25YmUn-I
What happened at Stanford is very much part of the Trump Grift, as it seeks to roll back Civil Rights and constitutional protections.
For the Jews it is all Bengelsdorf.
And we know which Jews are Bengelsdorf.
It is the side Dershowitz has chosen.
David Shasha
Should the Names of Stanford Student Disrupters Be Published?
By: Alan M. Dershowitz
Once again, a conservative speaker had been shouted down by censorial law students who didn't want him to speak. This time it was Stanford, last time it was Yale. Then it was Georgetown.
If the Stanford Dean of diversity, equity and inclusion gets her way, this censorship of conservative speakers will spread to other campuses. Among the worst offenders in this all-too-common censorship fest was Dean Tirien Steinbach. In what appears to be a written statement prepared in advance, she effectively silenced the speaker, federal Judge Kyle Duncan, by monopolizing his space. She sought to justify not inviting speakers who might offend the sensibilities of students who she claims to be responsible for "protecting" and providing "safe spaces" against uncomfortable ideas.
After paying lip service to free speech, she suggested reconsidering Stanford's speech policy, repeatedly asked whether "the squeeze is worth the juice". She questioned whether Judge Duncan, whose opinions and views cause "hurt" to students, should have been invited to speak. Her bottom-line message was that offending some students is worse than allowing others to hear from a controversial speaker. This from a high-ranking administrator who was purporting to speak on behalf of the university.
The real victims of this censorship were the students who were denied the opportunity to hear Judge Duncan's full presentation.
An angry Judge Duncan responded, "Don't feel sorry for me. I'm a life-tenured judge. What outrages me is that these kids are being treated like dogshit by fellow students and administrators."
As the late Justice Thurgood Marshall once observed, "The freedom to speak and the freedom to hear are inseparable; They are two sides of the same coin."
To her credit, the dean of the law school, Jenny Martinez, condemned the disrupters, writing, "However well-intentioned, attempts at managing the room in this instance went awry... The way this event unfolded was not aligned with out institutional commitment to freedom of speech." She gave no indication of whether anyone would be disciplined.
To be sure, protesting, picketing and even brief heckling of speakers is also protected free speech, but shouting speakers down with the intent to silence them is not. It is explicitly prohibited by Stanford's rules. Yet that's exactly what occurred without apparent consequences to the disrupters.
The disrupters also attempted to shame the sponsors of the speech by disclosing their names and subjecting them to harassment. This suggests a possible response to the disrupters. Following the Yale disruptions, some judges have announced that they will no longer hire law clerks from Yale. Similar announcements regarding Stanford are likely. In my view, that amounts to collective punishment of the innocent along with guilty. Many law students from these schools do not agree with disrupting speakers, and they should not be denied clerkships. Instead, the names of the disrupters might be published and made available to potential employers, so they can decide whether they want to hire graduates with such intolerance for diversity of viewpoints.
I made a similar suggestion about publishing the names of Berkeley law students who voted to ban all Zionists — that is, believers in Israel's right to exist — from speaking at 14 law school clubs, including feminist, Black and gay organizations.
As one who well remembers McCarthyite "blacklists," I'm uncomfortable about publishing the names of student censors. But if they are proud of their very public efforts to silence speakers with whom they disagree, they should be proud to have their names published so that potential employers can have relevant information before they make hiring decisions. That would be far better than judges and other employers refusing to hire ANY students from the offending schools.
Law schools are supposed to teach advocacy skills and a commitment to the rule of law. They should have and enforce vigorous free speech policies. They should not have deans, like Steinbach, who are part of the problem, rather than part of the solution.
Stanford should apologize to Judge Duncan for the dean's actions and inactions. He observed that in his view, "This was a set up. She was working with the students." Stanford should discipline any students who violated its speech policies. Most importantly, it should foster values of diversity of viewpoints, rather than merely diversity of race and ethnicity. Perhaps the law school should appoint a new dean of "diversity of opinions, tolerance for other views and free speech".
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of "The Dershow" podcast.
From Gatestone Institute, March 13, 2023
Stuart Kyle Duncan: the Trump-appointed judge working to ban Louisiana abortions
By: Rosemary Westwood
A landmark US supreme court ruling expected before the end of June could shutter most of Louisiana’s abortion clinics and precipitate clinic closures in more than a dozen other states.
The case, June Medical Services v Russo, is one of the most high-profile supreme court cases of the year, after Donald Trump appointed two justices who tipped the balance of the court to a conservative majority. And it might never have reached the supreme court without the aid of another Trump-appointed judge, Stuart Kyle Duncan.
The Louisiana case centers on law that would force abortion doctors to gain permission to admit and treat patients at nearby hospitals, known as “admitting privileges” – a bureaucratic hurdle that has been shown to shut down a large swath of abortion clinics.
The supreme court ruled an almost identical Texas law unconstitutional in 2016, but Louisiana is arguing that what is unconstitutional in Texas can still be constitutional across the state border.
Duncan fought the Louisiana case while in private practice until the spring of 2018, when he was confirmed as one of Trump’s five lifetime appointments to the fifth circuit court of appeals.
This year, several states have sought to severely restrict a woman’s right to abortion by designating it an elective treatment that is not necessary during the coronavirus pandemic. Though appeals courts largely refused to uphold these bans, Duncan was one of two judges on the fifth circuit court who repeatedly upheld Texas’s ban in a series of rulings that threw abortion access into weeks of disarray.
Part of Trump’s lasting legacy
In just three years, the Trump administration has stacked federal courts with an army of conservative judges: 143 district court judges, 51 appeals court judges and two supreme court justices. Trump’s lasting legacy may be stuffing America’s most important courts with largely white, male, conservative justices who will rule over important social and cultural issues such as reproductive rights, LGBTQ issues and immigration for the next three or four decades.
One-fifth of the federal trial judges now owe their seat to Trump, as do one-fourth of appellate judges. According to the progressive research group Data for Progress, Trump’s cohort are also ideologically to the right of previously appointed Republican judges.
With the election looming in November, the Senate majority leader, Mitch McConnell, vowed to push ahead with nomination hearings and “leave no vacancy behind”.
And nowhere will Trump’s impact be felt greater than in the states that lie under the jurisdiction of the nation’s most conservative appeals courts. The fifth circuit, for example, covers the Republican strongholds of Texas, Louisiana and Mississippi, making it the likely final arbiter on the constitutionality of a slew of conservative laws.
“For the overwhelming number of cases, the constitutional rights of the people in Texas, Louisiana and Mississippi will be made by Kyle Duncan and the other ultra-conservatives on the fifth circuit,” said Daniel Goldberg, legal director at the progressive judicial non-profit the Alliance for Justice.
Five of the 17 active judges on the fifth circuit are Trump appointees, making an already right-leaning appeals court arguably “one of the most, probably the most, conservative” in the nation, Goldberg added.
The mantle is significant. While most attention tends to fall on the supreme court, that court hears only about 100 cases in a year. Appeals courts collectively handle in the range of 50,000. The nation’s 94 district courts are geographically organized into 12 circuits, which hear the bulk of appeals, and from those cases, the US supreme court chooses just a fraction.
It was a fifth circuit panel that ruled to uphold Louisiana’s admitting privileges law in 2018, despite the fact the Texas law had been struck down two years prior. In early 2019, the full bench of the fifth circuit voted to refuse to rehear the case, forcing the supreme court’s hand and setting the stage for this summer’s looming decision. Since he had represented Louisiana, Duncan abstained from the court’s decision.
But Trump’s other four appointees were among the nine judges that upheld Louisiana’s law. One, James Ho, has since made headlines for decrying the “the moral tragedy of abortion” in an opinion. Others have criticized the Voting Rights Act – a civil-rights era law that forced states with histories of violent voter suppression to obtain approval from the justice department over changes to elections, a law that conservatives on the supreme court gutted in 2013.
Duncan is a lawyer with “proven culture wars credentials”, said Amanda Hollis-Brusky, author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution.
The vote to confirm his appointment to the fifth circuit bench split along party lines, 50-47, and his bid was aided by the conservative Judicial Crisis Network – an ally of the Federalist Society, a conservative group that has aided Trump by selecting judges for him to nominate. The Judicial Crisis Network spent tens of thousands of dollars on TV ads in Louisiana praising Duncan after Senator John Kennedy expressed skepticism at giving a seat conventionally held for a Louisianian to a “Washington lawyer”. By the time of Duncan’s nomination hearing, Kennedy hailed Duncan as “staunchly and vociferously pro-life” and “pro-religious liberty”.
In favor of religious liberty
Duncan, a married father of five, was born in Baton Rouge in 1972.
Religious liberty is Duncan’s specialty, going back to his time in the mid-2000s as a professor of law at the University of Mississippi, where his scholarship centered on the separation of church and state. Duncan has argued alongside the religious liberty powerhouse the Alliance Defending Freedom (ADF) and taught at its Blackstone Legal Fellowship, a kind of career boot camp for elite Christian lawyers that the ADF calls a “ministry”.
Duncan made his name in 2014 at the boutique religious rights firm the Becket Fund for Religious Liberty, when he was the lead counsel on the victorious supreme court contraception case Burwell v Hobby Lobby Stores. That pivotal decision laid the groundwork for corporations to opt out of providing birth control for employees based on religious objections, and it preceded another major contraception case the court heard this spring, one that could further favor the religious and moral objections of employers over the rights of their employees to access healthcare.
Duncan is a devout Catholic. Before his appointment to the fifth circuit, on mornings before he was scheduled to argue before the supreme court, he would recite the rosary to calm himself.
A large part of his career as an appellate court specialist was spent defending Republican state laws popular with the religious right and social conservatives. He fought to keep Louisiana’s same-sex marriage ban: the matter belongs in the states, would have “unforeseen” consequences, and LGBTQ rights have “nothing” (his empasis) to do with civil rights cases, he argued. He defended a North Carolina anti-trans bathroom law and a similar Virginia school board policy. And he argued in favor of a North Carolina voter ID regulation that the fourth circuit found targeted African Americans “with almost surgical precision”.
Paul Baier, a law professor at LSU who never taught Duncan, supported his nomination despite having argued against him in the same-sex marriage case at the Louisiana supreme court. Duncan is a “superb advocate” and a “very careful, painstaking judge”, he said. He described Duncan’s reasoning in his opinion to uphold Texas’s coronavirus-related abortion ban as an “exemplar of the studious judge judging”.
The Federalist Society acts as an alternative to the American Bar Association with a monopoly on Republican nominees, Hollis-Brusky said, strategically placing people like Duncan who can’t be dismissed as a “crazy Christian” or “Bible-thumper”.
Over the course of his nomination process in 2017, the Democratic senator Dianne Feinstein questioned him about some of the arguments he had made in past controversial cases. Duncan responded by stating that “in representing clients I do not advance my personal views, but the interests of my clients”.
During his nomination hearing, Duncan presented himself as fair-minded and reasonable. He strove especially to reassure the Democratic Senator Dick Durbin over his record of advancing religious rights above all others.
“Where do we draw the line with your right as an individual,” asked Durbin, “as opposed to my right to assert religious liberty?”
“It’s a balance, it’s gotta be a balance,” Duncan replied.
He referenced the Hobby Lobby case, describing it as a “close case” because “women would be deprived” of contraception.
Three years earlier, Duncan had used opposite terms. “We find ourselves in the midst of what we see, and what we see correctly, as one of the most flagrant attacks on religious liberty that that we’ve ever seen in this country,” Duncan told a panel in 2014.
“And most importantly, from our point of view, it’s not about striking the appropriate balance,” he went on. “The first amendment has struck the balance for us, and that balance is in favor of religious liberty.”
Few Trump appointees have survived the nomination process without outrage from progressive groups. Duncan is no exception.
“The specific judges the Federalist Society supported are selected by the president to implement his agenda of dismantling health care, eliminating civil, women and workers rights and shielding his wealth and actions from public scrutiny,” said Nan Aron, the founder of the Alliance for Justice.
Duncan summed up his life’s work in 2014, in an article for the Ivy League Christian Observer. “All I really want to do,” he said, “is what God wants me to do with the talents he gave me.”
From The Guardian (UK), June 14, 2020
Trump judge lashes out at a transgender litigant in a surprisingly cruel opinion
By: Ian Millhiser
Federal appeals courts hear cases that impact the rights of millions. They decide matters with billions of dollars at stake. They sometimes hear cases where thousands of lives hang in the balance.
United States v. Varner is not one of those cases. The main thing at stake in Varner is whether three judges will treat a woman with courtesy or with needless cruelty.
Two of them chose the latter option.
The case involves Kathrine Nicole Jett, a trans woman who is incarcerated in a federal prison. (Jett does not appear to use the name “Varner,” but for the sake of clarity, this piece will refer to her case as United States v. Varner because that is the only name the courts have assigned to it.) Jett made a couple of requests from the federal judiciary relating to her transition from male to female. She asked that her name be changed on certain court documents from “Norman Keith Varner” to “Kathrine Nicole Jett,” and that judges hearing her case refer to her as a woman and use feminine pronouns.
The name change request was denied on procedural grounds (although the judges hearing the case disagree about why this request should be denied, no judge suggested it should be granted). But the question of how individual judges should refer to a transgender person does not appear to be answered by any law. All three judges hearing the Varner case appear to agree that this decision is entirely up to their discretion.
Unfortunately for Jett, she drew a panel of judges dominated by two unusually conservative Republicans. The author of the Court’s opinion in Varner, Judge Stuart Kyle Duncan, spent part of his career as general counsel to a leading Christian right law firm and litigated multiple cases seeking to restrict LGBTQ rights.
Among several other cases, Duncan defended the state of Alabama’s failed attempt to strip a lesbian mother of parental rights over her adopted child. He filed a brief arguing against marriage equality in the Supreme Court’s landmark Obergefell v. Hodges (2015) case. And he represented a school district seeking to bar a trans student from using the bathroom that aligns with his gender identity.
Duncan’s nomination to the United States Court of Appeals for the Fifth Circuit was widely opposed by civil rights groups, who noted that anti-LGBTQ litigation made up a significant amount of Duncan’s law practice.
Judge Duncan’s opinion in Varner confirms these groups’ fears. The thrust of Duncan’s opinion is that even though he could use female pronouns and refer to Jett as a woman as a matter of courtesy, no one can make him. So he won’t.
There are no broader legal stakes here — only the question of whether Duncan and his fellow Republican colleague, Judge Jerry Smith, will afford Jett a modicum of dignity. Duncan and Smith opted for cruelty.
Moreover, while Duncan’s opinion on this issue has little legal significance, it sends a pretty clear message about whether transgender litigants can get a fair hearing in the Fifth Circuit. Few lawyers have done as much anti-LGBTQ legal work as Kyle Duncan. But Duncan is hardly an ideological outlier on a court that’s dominated by Republican appointees.
If the court’s judges are so contemptuous of trans people that they will take swipes at them when the stakes deal only with an individual, imagine what they will do when fundamental questions about the rights of transgender Americans come before their court.
Nothing prevents judges from treating transgender litigants with courtesy
All three of the judges who heard this case — Duncan, Smith, and dissenting Judge James Dennis — agree on one thing: Judges have discretion to decide how they want to refer to transgender litigants. Duncan acknowledges that “federal courts sometimes choose to refer to gender-dysphoric parties by their preferred pronouns.” And he notes that “on this issue, our court has gone both ways.”
Duncan cites nine federal court decisions where judges agreed to requests from trans litigants like the one Jett made. As Dennis notes in his dissent, though “no law compels” a judge to refer to a trans litigant by the correct pronouns, “many courts and judges adhere to such requests out of respect for the litigant’s dignity.”
The decision of whether to misgender a litigant appears to be entirely up to each judge.
Duncan chose not to grant Jett’s request. He justifies this decision through a combination of tactics — exaggerating the nature of the relief that Jett requested, selectively applying judicial ethics, and warning that some future judge may have to refer to a future litigant by a nontraditional gender-neutral pronoun such as “xe” or “hir.”
Much of Duncan’s opinion rests on a claim that “no authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity.” Perhaps Duncan is right about this claim. But, as Dennis points out in dissent, Jett did not seek a broad order requiring “litigants, judges, court personnel, or anyone else” to refer to her as a woman.
Instead, here is the text of her motion:
Motion to Use Female Pronouns When Addressing Appellant
I am a woman and not referring to me as such leads me to feel that I am being discriminated against based on my gender identity. I am a woman—can I not be referred to as one?
Thus, as Dennis writes, Jett “is simply requesting that this court, in this proceeding, refer to [her] using her preferred gender pronouns.”
Similarly, Duncan argues that “if a court were to compel the use of particular pronouns at the invitation of litigants, it could raise delicate questions about judicial impartiality.” He notes that “federal courts today are asked to decide cases that turn on hotly-debated issues of sex and gender identity.” And he cites a provision of the Code of Conduct for United States Judges that requires judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
That provision does, indeed, exist. But another provision states that “a judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.” Duncan offers no explanation for why the provision he relies on should trump another.
In any event, Duncan’s claim to impartiality fails on its own terms. Duncan is correct that “federal courts today are asked to decide cases that turn on hotly-debated issues of sex and gender identity.” By pointedly choosing to refer to Jett as a man, and then explaining his decision to do so in a published opinion, Duncan does not convey that he is an impartial judge with no view on trans rights. To the contrary, he rather emphatically conveys that he has chosen a side — and it’s not the side of LGBTQ rights.
If Duncan wished to avoid appearing to take sides on whether Jett is a man or a woman, he could have, as Judge Dennis suggests in dissent, simply avoided using pronouns altogether in the court’s opinion.
The silver lining for transgender litigants is that Duncan neither claims he is resolving a pressing legal dispute over trans rights nor claims that other judges cannot treat trans litigants with courtesy. His decision to misgender Jett is not binding on lower courts. Indeed, Duncan’s decision appears to serve only one goal.
The cruelty, it seems, is the point.
From Vox, January 17, 2020
A Trump Judge’s Tantrum at Stanford Law Was Part of a Bigger Plan
By: Mark Joseph Stern
Judge Stuart Kyle Duncan went to Stanford Law School looking for a fight, and he got one. The ultraconservative judge, a Donald Trump nominee, ostensibly visited the campus on Thursday to talk about “COVID, guns, and Twitter” at an event sponsored by the Stanford Federalist Society. But once in the classroom, he immediately faced protesters who shouted questions about his hostility to civil rights, especially LGBTQ equality. Duncan came prepared, striding into the room with his camera out to film the event so he could “make a record” of their demonstration. After an administrator and a student leader quieted the protesters, the judge skipped his speech and moved directly to Q&A. He then insulted various students (“you are an appalling idiot,” the judge told one) while refusing to engage with their questions. After departing, the judge embarked upon a conservative media tour, declaring that the “coddled law students” behaved like “dogshit” and urging Stanford to discipline them.
Duncan got the attention he so obviously wanted, drawing instant support from GOP senators and Fox News. He emerged as a folk hero on the right, the audacious judge who punched back at crybullies on the left who tried to silence his free speech. Yes, his behavior was injudicious; that was the point. The judge has likely concluded that conducting himself like a truculent provocateur will increase his odds of advancing to the Supreme Court under a future Republican president.
This calculation is perfectly rational. Duncan is far from the only Trump nominee who is currently auditioning for SCOTUS. At Stanford Law, the judge saw an opportunity to brandish his demagogic bona fides. Nobody should be surprised that he ran with it.
Before turning to the strategic element of Duncan’s very public tantrum, it’s worth clearing up some misinformation about the event. The initial narrative was heavily shaped by a video and accompanying Twitter thread posted by Ed Whelan, a conservative commentator best known for falsely accusing one of Brett Kavanaugh’s classmates of sexually assaulting Christine Blasey Ford on the basis of Zillow floor plans. At the start of Whelan’s video, it sounds as if progressive protesters “shouted down” Duncan (in Whelan’s words), preventing him from delivering prepared remarks.
As multiple firsthand accounts and videos demonstrate, that is not what happened. In reality, at the start of those remarks, the protesters peppered the judge with questions and criticisms but did not drown out his speech. Instead, a frustrated Duncan asked for an administrator to step in to tamp down the heckling. At that point, Tirien Steinbach, the associate dean for diversity, equity, and inclusion (and a Black woman), approached the judge. In the video, it appears he did not recognize that she was the administrator he had requested; “You’re an administrator?” he asked. Students began shouting to explain to the judge that Steinbach was an administrator (and that is when Whelan’s video begins). Reluctantly, Duncan let Steinbach speak. She told the students that she agreed with their criticisms of Duncan, but that they had to let him express his views. (Duncan responded that she had participated in a “setup.”) Steinbach also invited protesters to leave if they wanted to, and many exited. Videos reviewed by Slate show that a student leader of the protests then asked the audience to stay silent so Duncan could talk. They did.
The judge, however, decided he no longer wished to deliver his prepared remarks, and instead moved straight to a Q&A. Students responded with harsh but important questions about his jurisprudence, especially his adamant refusal to use a transgender litigant’s preferred pronouns. Duncan dismissed many of the questions and responded to others with insults. (For instance, he accused the protesters of asking “When did you stop beating your wife–type questions.”) Finally, he prematurely cut off Q&A and left.
As Duncan told legal commentator David Lat, he knew his speech would be protested. That’s why he walked into the school with his phone out, recording student protesters (and taking care to get close-up shots of their faces). As one source told Lat, Duncan looked “more like a YouTuber storming the Capitol, than a federal judge coming to speak.” This source expressed surprise that the judge did not “prepare himself to stay composed.” But videos of the event, combined with Duncan’s behavior on the bench so far, strongly suggest that he did prepare himself—not to “stay composed,” but to belligerently insult the protesters with schoolyard taunts.
Recall that this man made his way to the bench by being a professional bully. Before his elevation to the 5th U.S. Circuit Court of Appeals in 2018, Duncan tried to revoke gay parents’ rights over their adopted children, defended same-sex marriage bans, and fought against the rights of transgender schoolchildren. He condemned the constitutional right to same-sex marriage as a “license” to “persecute churches” and an “abject failure,” warning that it “imperils civic peace.” (Asked about the “civic peace” comment on Thursday, Duncan gestured toward the largely LGBTQ audience, as if they proved him right.) In his current position, he wrote a cruel, petty opinion misgendering a trans litigant while mocking the very notion of gender identity and preferred pronouns. Duncan has consistently voted with the most radical bloc on the far-right 5th Circuit; in one particularly notorious case, he sought to force the military to deploy unvaccinated SEALs over their commanders’ objections. (The Supreme Court soon overruled him.)
In 2023, none of that is necessarily enough to place Duncan on the shortlist for the next GOP president’s Supreme Court nominee—particularly if that president turns out to be Trump. Several of his fellow Trump nominees on the 5th Circuit are outflanking him: James Ho fills his opinions with rants against abortion, gun control, woke corporations, cancel culture, and other conservative hobbyhorses of the moment; he also launched a headline-grabbing boycott of clerks from Yale Law School. Duncan’s and Ho’s 5th Circuit colleague Andrew Oldham has become a vociferous critic of Big Tech’s alleged silencing of conservative voices and a law-and-order zealot. Over on the 9th Circuit, Judge Lawrence VanDyke has accused his liberal colleagues of playing “dirty,” declared that they should be “embarrassed” for siding with immigrants, mocked them for caring about mass shootings, compared them to criminals with “rap sheets,” and likened them to “a sullen kid who spits in the cookie jar after being caught red-handed.”
This outrageous conduct may seem shocking to those who expect judges to adhere to the Judicial Code of Conduct by behaving with humility and restraint (and by treating their colleagues with basic dignity). But as attorney Matthew Stiegler noted on Monday, these jurists are making a rational calculation. Writing careful, serious opinions is no longer a viable path to SCOTUS. The conservative legal movement is increasingly looking for judges who approach the job with a politician’s instinct for ruthless demolition of the opponent. John Roberts’ style of polite, restrained conservatism is out, jettisoned in favor of brawling, fiery radicalism. Trump and his advisers—most importantly, Federalist Society co-chair Leonard Leo—chose judges like Duncan because they represent a younger generation of jurists who defend their beliefs with rancor and fury.
Members of this new guard know what they were put on the bench to do. They are cheered on in conservative media and welcomed as heroes by the GOP. And when a Supreme Court vacancy opens under the Republican president, whether it’s Trump, Gov. Ron DeSantis, Sen. Josh Hawley, or some other demagogue, these judges will be first in line for a promotion. The cycle is already repeating itself: Hard-right Federalist Society judges tend to hire similar-minded clerks, creating a radicalization machine that pushes new conservative lawyers further and further to the extreme. When Federalist Society members in law school pull a stunt like blocking a progressive student’s graduation or flashing a gun in Zoom class, they are merely emulating their future bosses.
These developments are the logical result of the Republican Party’s longtime mantra “No More Souters.” Initially, this principle required a record of ideological purity. But that is no longer enough. There are now dozens of appeals court judges who are certain to remain staunch conservatives if lifted up to SCOTUS. What Republicans want now is performative fidelity to the cause: a Trumpian instinct for punching back twice as hard and a total commitment to the whole package of modern conservatism, trolling and gaslighting included. It is not enough for the next GOP justice to be to the right of Clarence Thomas and Samuel Alito. He must also yearn for a street fight with his ideological foes.
In past opinions and public appearances, Duncan has not exhibited these qualities; he typically comes across as droll and slightly reserved. On Thursday, he rebranded, premiering a far more combative persona who’s hellbent on owning the libs. His decision to insult law students like a shameless, juvenile partisan reads like a bid for praise from the Republican power brokers who control judicial appointments. There’s already a crowded field of frontrunners for the next GOP seat on the Supreme Court. But with this provocation, Duncan may have moved toward the front of the pack.
From Slate, March 13, 2023
‘Dogs—t’: Federal Judge Decries Disruption of His Remarks by Stanford Law Students and Calls for Termination of the Stanford Dean Who Joined the Mob
By: Aaron Sibarium
Fifth Circuit appellate judge Stuart Kyle Duncan, who was shouted down by Stanford Law School students as administrators looked on in silence, says the protesters behaved like "dogshit."
Now, in an interview with the Washington Free Beacon, Duncan is calling on the school to discipline the students who disrupted his talk and to fire the school’s associate dean of diversity, equity, and inclusion, who stepped in during the event to chastise him and deliver what the judge described as a "bizarre therapy session from hell."
Duncan’s remarks come after nearly a hundred students at Stanford Law School disrupted his remarks in brazen violation of Stanford University’s free speech policies.
One source of the students’ ire was Duncan’s refusal, in a 2020 opinion, to use a transgender sex offender’s preferred pronouns. The Stanford event, which was sponsored by the law school’s chapter of the Federalist Society, got so out of hand that federal marshals eventually escorted Duncan from the building.
Tirien Steinbach, the school’s diversity dean, arrived on the scene when Duncan himself asked for an administrator to restore order. She then took to the podium and, in a video that has now circulated widely online, accused the judge of causing "harm."
"Your opinions from the bench land as absolute disenfranchisement" of the students’ rights, Steinbach said, accusing him of "tearing the fabric of this community."
"Do you have something so incredibly important to say," she asked him, that it is worth the "division of these people?"
Duncan warned that what happens at Stanford, long the second-ranked law school in the country, behind Yale, is unlikely to stay there. "If enough of these kids get into the legal profession," he said, "the rule of law will descend into barbarism."
Neither Steinbach nor Jenny Martinez, the dean of Stanford Law School, responded to a request for comment.
The protest is perhaps the most extreme example yet of law students shouting down conservative speakers. A similar incident occurred at Yale Law School last year when Kristen Waggoner, a prominent Supreme Court litigator, was drowned out by hundreds of students protesting her views on transgender issues. Also last year, students at the University of California-Hastings disrupted a talk with the libertarian law professor Ilya Shapiro, shrieking and jeering each time he opened his mouth.
The tactics used against Duncan were nearly identical. Nearly everyone in the room showed up to disrupt the proceeding, according to Duncan and two members of the Federalist Society, and many of the hundred or so students on hand were holding profane signs, including one that declared: "Duncan can’t find the clit."
Each time Duncan began to speak, the protesters would heckle him with insults, shouting things like "scumbag!" and "you’re a liar!"
The din became so loud that Duncan asked for an administrator to keep order, according to video of the event. That’s when Steinbach, the associate diversity dean, delivered her remarks. While she reminded students of the law school’s free speech policies, which prohibit the disruption of speakers, she proceeded to stand by while students continued to heckle Duncan, videos from the event show.
She also expressed sympathy for students who wanted to "reconsider" those free speech policies, given the "harm" Duncan’s appearance had caused.
At least three other administrators—acting dean of student affairs Jeanne Merino, associate director of student affairs Holly Parish, and student affairs coordinator Megan Brown—were present throughout the event, according to Tim Rosenberger, the president of Stanford’s Federalist Society chapter. None of them told the students to allow Duncan to speak without interruption.
Eventually, one of the leaders of the protest instructed the students to "tone down the heckling slightly so we can get to our questions," a video obtained by the Free Beacon shows. So began a contentious question and answer session between Duncan, who never got to read his prepared remarks, and his critics, who continued to disrupt and jeer as he spoke.
The students appeared to have little familiarity with Duncan’s jurisprudence. Some accused him of suppressing the voting rights of African Americans, Duncan said—only to cite a case in which Duncan had actually dissented from the majority.
Other questions were less academic. "I fuck men, I can find the prostate," one student asked, according to Rosenberger. "Why can’t you find the clit?"
Duncan was escorted out of a back door by federal marshals, who told him, he said, that they were there to "protect" him.
The meltdown followed a weeklong pressure campaign against members of the Federalist Society, who were personally named and shamed by campus activists.
Over 70 students emailed the group on March 6 asking it to cancel the event or move it to Zoom, arguing that Duncan has "proudly threatened healthcare and basic rights for marginalized communities"—language Steinbach quoted uncritically in an email sent out the morning of the event. Her email, which also reminded students of the school’s free speech policies, nonetheless said the event would be a "significant hit" to students’ sense of belonging.
When the Federalist Society refused to cancel, students began putting up fliers with the names and faces of everyone on the board. "You should be ashamed," the posters read.
Other posters berated Duncan for opposing same-sex marriage, denying "Black Americans the right to vote," and denying "trans people the right to self-determination in court"—an apparent reference to a 2020 opinion in which Duncan referred to a male-to-female child pornographer using he/him pronouns.
The public shaming continued the day of the event. As Duncan was being whisked away by marshals, protesters encircled members of the Federalist Society and hurled invective at them, Rosenberg and another Federalist Society member said.
Such tactics have become par for the course at elite law schools. The Yale Law students protesting Waggoner likewise sought to shame the Federalist Society, which had invited her, with posters littered throughout the school.
"Through your attendance" at the event, the posters said, "you are personally complicit, along with the Federalist Society."
For Duncan, the attempt to shame individual students was the most disturbing part of the Stanford imbroglio.
"Don’t feel sorry for me," he said. "I’m a life-tenured federal judge. What outrages me is that these kids are being treated like dogshit by fellow students and administrators."
Update, 3/10/23, 10:00 PM: Shortly after the publication of this story, the dean of Stanford Law School, Jenny Martinez, said in a statement that the disruption was "not aligned with our institutional commitment to freedom of speech," adding that "the school is reviewing what transpired." She did not indicate whether the students involved in the disruption would be disciplined.
Correction, 3/12/23, 2:00 PM: This story originally stated that Stanford’s dean of student affairs, Jory Steel, was present during the disruption. The person in the room was actually Jeanne Merino, the acting dean of student affairs, who is filling in for Steel while she is on a leave of absence. We regret therror.
From The Washington “Free” Beacon, March 10, 2023