Stephanie Grace: John Kennedy picks a curious fight on judges

Friday, 01 December 2017, 02:34:45 PM. Let's clear this up right off the bat: U.S. Sen. John Kennedy is not who Vanita Gupta wants him to be, even though the former head of the U.S. Justice

Let's clear this up right off the bat: U.S. Sen. John Kennedy is not who Vanita Gupta wants him to be, even though the former head of the U.S. Justice Department's Civil Rights Division under Barack Obama has lauded him for being the first Republican to cast a "no" vote on any of Donald Trump's judicial nominees.

Kennedy's also not who Dianne Feinstein wants him to be, despite the fact that the California senator and ranking Democrat on the Judiciary Committee, where Kennedy serves, made it clear during a Wednesday hearing that she shares his concern over protecting the chamber's advise-and-consent role in confirming judges.

Kennedy may be making news by bucking the Trump administration on a few judicial nominees, but he's not the guy who's out to block a concerted play to stack the federal judiciary with young hard-line conservatives who'll be there long after the president is gone. He might have been once upon a time, back when he first ran for Senate as a moderate Democrat. But Kennedy has long since reinvented himself as a right-wing warrior, and during his successful 2016 campaign, he claimed no reservations about hopping aboard the Trump Train.

So while Gupta, who now runs the Leadership Conference on Civil and Human Rights, found hope in Kennedy's vote against Gregory Katsas to join the all-important federal appeals bench in Washington, D.C., the senator didn't do it because Katsas has "worked to restrict voting rights, LGBTQ rights and access to women’s health, and he has sought to expand executive power at the expense of civil liberties," as Gupta put it. And while Feinstein piggybacked on Kennedy's hesitation to support lawyer Kyle Duncan for a seat on the New Orleans-based 5th Circuit Court of Appeals, the part of her statement echoing Gupta's doubts was all hers.

Kennedy, meanwhile, says he's perfectly happy to support anti-abortion, "pro-religious liberty" judges.

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Which leaves us with the real question: Just what is he doing here?

The senator said he's acting on principle. That's his explanation for voting against Katsas, who was confirmed anyway, and whose views on social issues closely reflect those of the senator. Kennedy said he opposed Katsas because the nominee now works in the White House, and the D.C. appeals court would hear cases stemming from policies he helped construct. That creates a clear appearance of conflict of interest, Kennedy said.

It's also his stated reason for planning to vote against a questionably qualified district court nominee from Alabama, Brett Talley, who not only has never tried a case, but has been caught defending the Klan in online posts.

"Give me a break!" Kennedy said earlier this week. "It is embarrassing and I think the president of the United States is getting some very, very bad advice."

The principle is a little less clear in Kennedy's hesitation to back Duncan, a favorite of the religious right movement who handled the Hobby Lobby case that cleared the way for employers to refuse to cover their employees' birth control. Sure, there's the tradition of nominees having deep roots in their states, something Kennedy questions in Duncan's case. But there's also some obvious personal pique.

Kennedy's explanation for holding back on Duncan is that he's spent much of his career working out of Washington, even though he's a Baton Rouge native, has two LSU degrees and has represented the state.

"I have received scores of phone calls from experienced, accomplished, whip-smart, pro-life, pro-religious liberty Louisiana lawyers and judges ... who've asked me why I would support a Washington lawyer for this seat over them?" Kennedy said in the hearing.

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But underlying his objection was his obvious annoyance that he wasn't asked. In fact, he said he was told by White House counsel Don McGahn, who was "very firm that Mr. Duncan would be the nominee — to the point that he was on the scarce side, in one conversation, of being polite," Kennedy said. He said McGahn later apologized for his tone but did not back down.

Complicating matters is the fact that Louisiana's other senator, who does not sit on Judiciary, is backing Duncan. Bill Cassidy pointedly introduced him to the committee as a "Louisiana native son."

Kennedy's arguments make sense, but they all fall short of fully explaining why he's chosen this as his first big stand as senator, why this is the one place he'd break from the party line.

Late Thursday, Kennedy told the Advocate he'd back Duncan after all. Still, he'd managed to make his point.

Just what that point was, only he knows for sure.  

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