Table of Contents
Transcript of Stanford Law Shoutdown of Judge Kyle Duncan, March 9, 2023
Introduction
At 12:45pm on Thursday, March 9, the Stanford Law School Federalist Society attempted to host an approximately hour-long discussion with U.S. Court of Appeals for the Fifth Circuit , entitled, "" For its entire duration, the event was overtaken by dozens of student protesters. These student protesters persistently heckled Duncan to such a substantial extent that the event could not proceed as planned, thereby successfully executing a hecklerās veto. See a full account of the event, including the leadup and fallout, here.
The event proceeds in three phases.
Phase 1 consists of approximately 10 minutes of pure shoutdown, wherein students consistently interrupt Duncan to such an extent that he cannot deliver his prepared remarks. Duncan responded to the disruption by saying that the āinmates have gotten control of the asylum.ā
Phase 2 consists of the remarks of Stanford Associate Dean for Diversity, Equity, and Inclusion Tirien Steinbach, who approaches Duncanās podium offering to help restore order. She correctly states Stanfordās strong free speech policies and says she believes in them. But she also questions whether those policies should be reconsidered (āIs the juice worth the squeeze?ā), given how Duncanās visit has caused āpainā and ādivision.ā In a subsequent op-ed, she to have been attempting āto deployā¦ de-escalation techniques,ā yet her remarks prior to and during the event the protestersā discontent.
After Steinbach concluded, many students left the room. Unable to finish his prepared remarks, Duncan begins a Q&A period āā Phase 3. During this phase, students asked Duncan a number of antagonizing questions but generally provided Duncan with a chance to reply. Finally, federal marshals escorted Duncan out.
Methodology
FIRE researchers generated this transcript from the by journalist David Lat on his Substack. Much of this audio was difficult to decipher, so we supplemented Latās audio with additional videos sent to us by attendees of the event. Time stamps from Latās audio, available at https://davidlat.substack.com/p/the-full-audio-recording-of-judge.
---------- 0:00 ----------
STUDENT INTRO: In 2008 he was an assistant professor of law at the University of Mississippi School of Law. [Before] becoming a judge, Judge Duncan practiced at the Washington, DC firm Schaerr Duncan, where he was a founding partner. He was appointed by President Trump to the United States Court of Appeals for the Fifth Circuit.
[Laughter]
STUDENT INTRO: [Inaudible]
[Applause]
DUNCAN: Thanks, to the, to the Federalist Societyā¦ uhm, about, I mean, Iām not blind, I can see this outpouring of contempt.
STUDENT: Youād recognize it quickly. Great speech.
DUNCAN: Yeah I do. Itās kind of like my nomination hearing.
[Laughter]
STUDENT: You were nominated by someone who committed treason.
[Chatter]
DUNCAN: The great thing about the independence of the federal judiciary is that it insulates judges from stuff like this.
STUDENT: It doesnāt, though.
[Inaudible]
STUDENT: Speak up. Yeah, speak up. I canāt hear you in the back.
[Inaudible]
DUNCAN: The independence of the federal judiciary means that we decide cases, and if people donāt like it, you know, thatās their right to say, to say they donāt like it, but it doesnāt affect our decisions. And thatās whyā¦
STUDENT: How many people get killed for who they are?
DUNCAN: Thatās why we have Article III, and thatās why this, whatever this isā¦
[Inaudible]
STUDENT: We donāt! [Inaudible] Itās called protest. Itās under the First Amendment. I thought you knew about the First Amendment.
DUNCAN: So, the independence of the federal judiciary means that āā itās a great country, I mean, I see what people say about me on Twitter, and the internet, and now here in person. Itās a greatā¦
[Chatter]
DUNCAN: Itās a great, itās a great country, that you can say whatever you want, and nothing can happen to you.
[Inaudible]
STUDENT: ā¦ canceled.
DUNCAN: And so, you know, itās a great country, that you can say whatever you want about judges or politicians or whoever, and nothingās gonna happen to you. Isnāt that a fact? And a law school like this, itās one of the best law schools in the countryā¦
STUDENT: Yeah, we go here.
DUNCAN: You will, you will probably be applauded for attacking me.
STUDENT: Attacking?
[Angry chatter]
[Inaudible]
STUDENT: Tears!
DUNCAN: However, I would like to speak up to the Federalist Societyā¦
STUDENT: Aw, they really need you to.
[Inaudible]
STUDENTS: Aww, aww. Sad.
STUDENT: All that money.
STUDENT: Boo hoo.
[Snapping]
STUDENT: ā¦ all that university funding.
DUNCAN: So, when I was in law school Iā¦ [inaudible]
STUDENT: Cold flex.
DUNCAN: ā¦ and, but I wasnāt very political, and I just kind of kept my head down. I wasnāt involved in politicsā¦ [inaudible]
[Chatter]
DUNCAN: ā¦ and so I didnāt get involved in stuff like this. I wasnāt, you know, I wasnāt in the Federalist Society, I had, I just wasnāt very political. But I admire you, uhm, the Federalist Society membersā¦
[Laughter]
DUNCAN: ā¦ for sticking your neck out and inviting me.
[Inaudible]
[Laughter]
DUNCAN: [Inaudible] You guys are outnumbered [inaudible]
[Inaudible]
[Screams and applause]
DUNCAN: And I want to encourage that no matter how many people try to marginalize you in this lifeā¦
[Screams and laughter]
STUDENT: Marginalize!?
[Inaudible]
DUNCAN: ā¦ respect your fellow students.
STUDENT: Whereās your respect for queer and trans people?
STUDENT: Whereās your respect, dude?
DUNCAN: You never show up at, whoever these people are, protestersā¦
STUDENT: You know who we are!
DUNCAN: You never show upā¦ [inaudible]
[Chatter]
STUDENT: Their rights are never under attack. You attack trans people and LGBTQ people. Thatās an accurate fact.
DUNCAN: So, I would hope that you could be treated equally, just like everybody elseā¦
[Shouting]
[Inaudible]
STUDENT: What part of your prayer says that?
[Laughter]
DUNCAN: So ā¦
---------- 5:00 ----------
STUDENT: Oh my god.
DUNCAN: To those that I think, I assumeā¦ [inaudible]
STUDENT: You donāt have to finish this talk.
[Inaudible]
[Laughter]
DUNCAN: So, the, uhm, the circuit courts, uh, in this country, uh, obviously, uh, are inferior courts. Right? Thatās what the Constitution calls them. Theyāre inferior courts. They have to follow SCOTUS, uh, when scotus speaksā¦
STUDENT: Boring
[Laughter]
STUDENT: Weāre taking con law.
[Laughter]
DUNCAN: So, uhm, I tell you what, uh: When, uh, when inferior courts, how, however have to deal with issues that are gray areas, and they donāt have their mandate from the Supreme Court or the precedent, uh, we have to sort ofā¦
STUDENT: You mean like Roe? [unclear]
DUNCAN: ā¦ like tea leavesā¦ We have to figure out what to do.
STUDENT: [inaudible] ā¦ in free states, Judge?
DUNCAN: And, so, thereās kind of three different areas that my court deals with and there are areas where thereās change in the law in the process āā where thereās a change in the law thatās already occurred. And then, where there may be a change on the horizon, but itās really hard to tell, you know, I have to really work hardā¦ [inaudible] to figure out what direction the lawās going.
STUDENT: The direction against marginalized people?
DUNCAN: So, for example, uh in VST Holdings, the Occupational Safety and Health Administration, uh, issued a vaccine mandate.
STUDENT: Do you want people to die from Covid?
STUDENT: My grandma died from Covid!
DUNCAN: So, the vaccine mandate would cover two thirds of private employers in the United States, and was justified as an emergency workplace measure by OSHA.
STUDENT: So people wouldnāt die.
DUNCAN: And so, the question was, for our court āā there were challenges filed in every circuit āā and the question was whether the statute actually covered this act of, of pretty dramatic authority from OSHA.
STUDENT: So people wouldnāt die.
STUDENT: Six million people. Dead.
STUDENT: How is that different from the act of forcing people to get other kinds of vaccines?
DUNCAN: And so, we have to look atā¦
[Chatter]
DUNCAN: The depth of contemptā¦
STUDENT: Itās disrespectful.
DUNCAN: ā¦ that you are showing to me is appalling.
[Yelling]
[Banging]
STUDENT: Get over it.
DUNCAN: You are supposed to be in law school, where you areā¦
STUDENT: We owe you nothing.
DUNCAN: ā¦ listening to other points of view.
[Indistinguishable yelling]
[Laughter]
DUNCAN: ā¦ to your fellow students.
STUDENT: So answer the question.
DUNCAN: Instead you want to be in an echochamber where you only hear what you agree with. Itās appalling.
[Groaning and yelling]
STUDENT: You know who canāt listen? The people vilified by your decisions! ā¦queer and trans people killed by your decisions.
DUNCAN: I am so grateful. I am so grateful that I did not go to a law schoolā¦
STUDENTS: [inaudible] doubt you could get in here.
DUNCAN: ā¦where thereās this echo chamber of contempt for people you donāt agree with. It is astonishing to me. It is astonishing.
STUDENTS: Love that judicial temperament.
DUNCAN: It is astonishing to me.
[Inaudible]
DUNCAN: Do you actually think this is going to work in a court of law? Do you actually thinkā¦
STUDENT: Weāre not in a court of law. This is our school.
DUNCAN: Do you actually think that this is going to work with a client?
STUDENTS: Youāre not a client!
DUNCAN: Do you actually thinkā¦ It wonāt. It will not work...
STUDENTS: We donāt want you here. We donāt work for you. You donāt pay us. [Yelling]
DUNCAN: You are in an echochamber.
STUDENT: You can leave. Youāre in our school. Youāre literally appointed for life. You can leave.
DUNCAN: All you want to do is shut down people who donāt agree with you.
STUDENT: You can leave!
DUNCAN: Thatāsā¦ Thatāsā¦
STUDENT: Then shut down. You can leave! Why should we agree with you?
STUDENT: Just get out. Unoriginal. You have bad takes, dude.
DUNCAN: It is appalling. And obviouslyā¦
STUDENT: You are appalling us.
DUNCAN: Obviously, in this schoolā¦
STUDENT: Youāre such a victim!
DUNCAN: In this school, the inmates have gotten control of the asylum.
[Screaming]
[Inaudible]
DUNCAN: Who else do you treat this way when you invite people to the law school.
[Yelling]
STUDENT: If you canāt handle it, you can leave.
STUDENT: This is our jurisdiction!
STUDENT: Free speech!
STUDENT: Criticism is a valid form of communication.
[Inaudible]
STUDENT: Donāt you have a SuperCuts to get to?
[Laughter]
DUNCAN: And so in that case, that I was just talking about, my court said that Congress needed to pass a law that clearly gave OSHA the authority to do that.
STUDENT: They already did.
DUNCAN: Other courts disagreed with us āā the sixth circuit in particular āā and, as often happens, it went to the Supreme Court, which affirmed us, 6 to 3.
---------- 10:00 ----------
STUDENT: Because they are five Federalist Society justices on the Supreme Court.
DUNCAN: Iām hopingā¦ [inaudible] youāll show me a little bit more respectā¦ [inaudible]
STUDENT(S): No. No.
[Indistinguishable yelling]
STUDENT: You donāt respect us, bro!
STUDENT: You donāt respect us.
DUNCAN: Why would you? Thatās a good question. Because you should treat people the way that you want to be treated.
[Screaming]
STUDENT: Letās take away your rights.
DUNCAN: If somebody showed up to disagree with meā¦
STUDENT: We just did.
STUDENT: ā¦ you couldnāt get married ā¦
STUDENT: Judge! How is it respectful to misgender someone in an open court? Iād like to know.
[Banging]
DUNCAN: And so, in the secondaryā¦
STUDENT: You canāt answer it, because it wasnāt respectful.
[Indistinguishable chatter]
[Inaudible]
DUNCAN: This is notā¦
[Indistinguishable chatter]
STUDENT: Free marketplace of ideas!
DUNCAN: If you had been on the receiving end of thisā¦
STUDENT: We have been our whole lives!
STUDENT: I donāt hate trans people.
STUDENT: You suck at cold calls.
STUDENT: ā¦ be on the receiving end of your opinion.
STUDENT: Answer the question!
[Indistinguishable chatter]
STEINBACH: Actually, yes.
DUNCAN: Do you think this is an appropriate way to receive a guest? Do you thinkā¦
STUDENTS: Let her speak!
[Yelling]
STUDENT: Awww. Boo hoo.
STUDENT: Youāre censoring her speech.
STEINBACH: I am an associate dean, and I would love to answer your questions. Should I?
DUNCAN: [Inaudible]
STEINBACH: Yeah, and to this room, because youāre asking to this room, as well. Is that ok?
[Indistinguishable yelling]
STEINBACH: ā¦ because you are also talking to the room.
STUDENT: You asked for an administrator. Sheās an administrator.
STEINBACH: You just asked for an administrator. Iām here.
[Indistinguishable yelling]
STUDENT: Donāt raise your voice at me!
[Yelling]
STUDENT: Donāt raise your voice at a black woman! Donāt raise your voice at a black woman.
STEINBACH: Can I say something? Is that ok?
DUNCAN: So, youāve invited me to speak here, and Iām being heckled nonstop, and Iām just asking for an administrator to [inaudible].
STUDENT: Actions have consequencesā
[Screaming]
STUDENT: Sheās right there! She works here! Sheās an administrator! Your racism is showing. Read the room! Did you know, women can be administrators! Genius.
[Indistinguishable yelling]
STUDENTS: Respect black women! Respect black women. If you wantā¦ [inaudible] like this, youāve got to want to take it.
STEINBACH: Can I? Can I help?
STUDENTS: But do you want an echo chamber, whatās the issue?
STEINBACH: Can I help?
[Applause]
DUNCAN: I guess I had prepared remarks, butā¦
STEINBACH: And I want you toā¦ [inaudible].
STUDENTS: You can burn them.
STEINBACH: And I want you to [inaudible] your prepared remarks. Okay. I had to write something down because I am so uncomfortable up here. And I donāt say that for sympathy. Iām just saying Iām deeply, deeply uncomfortable. Iām uncomfortable cuz this event is tearing at the fabric of this community that I care about and am here to support. And I donāt know and I have to ask myself and Iām not a cynic to ask this: Is the juice worth the squeeze? Is this worth it?
[Students snapping fingers]
DUNCAN: Like I said, this is a setup.
STEINBACH: It isnāt a setup. But for many people in this law school who work here, who study here and who live here, your advocacy, your opinions from the bench, land as absolute disenfranchisement of their rights andā¦ [inaudible].
[Students snapping fingers]
DUNCAN: So youā¦ Okay. Okay.
STEINBACH: Please let me finish.
STUDENTS: Let her finish! Sheās speaking! Let her finish! Let her talk!
DUNCAN: This is a total. This is a total setup.
STEINBACH: [inaudible] pleaseā¦
STUDENTS: [inaudible] talking to you.
STEINBACH: And it impacts directlyā theyāre people, humans, and their families, and their communities. And Iām uncomfortable, and it's uncomfortable to say this to you as a person. Itās uncomfortable to say that for many people here, your work has caused harm. Has caused harm.
[Students snapping fingers]
STEINBACH: And I know that must be uncomfortable to hear. I know that must be ...
DUNCAN: [Inaudible]
STEINBACH: Let me please finish. And I want to give you space to finish your remarks too, Judge Duncan. Iām also uncomfortable because many of the people in the room here Iāve come to care for and in my role at this university my job is to create a space of belonging for all people in this institution. And that is hard and messy and not easy and the answers are not black or white or right or wrong. This is actually part of the creation of belonging. And it doesnāt feel comfortable and it doesnāt always feel safe. But there are always places of safety. And there is always an intention from this administration to make sure you all can be in a place where you feel fully you can be here, learn, grow into the amazing advocates and leaders and lawyers that youāre going to be.
STEINBACH (CONT): Iām also uncomfortable because it is my job to say: You are invited into this space. You are absolutely welcome in this space. In this space where people learn and, again, live.
---------- 15:00 ----------
I really do, wholeheartedly welcome you. Because me and many people in this administration do absolutely believe in free speech. We believe that it is necessary. We believe that the way to address speech that feels abhorrent, that feels harmful, that literally denies the humanity of people, that one way to do that is with more speech and not less. And not to shut you down or censor you or censor the student group that invited you here. That is hard. That is uncomfortable. And that is a policy and a principle that I think is worthy of defending, even in this time. Even in this time. And again I still ask: Is the juice worth the squeeze?
DUNCAN: What does that mean? I donāt understand...
STEINBACH: I mean is it worth the pain that this causes and the division that this causes? Do you have something so incredible important to say about Twitter and guns and COVID that that is worth this impact on the division of these people who have sat next to each other for years, who are going through what is the battle of law school together, so that they can go out into the world and be advocates. And this is the division it's caused. When I say āIs the juice worth the squeeze?ā That's what I'm asking. Is this worth it? And I hope so, and I'll stay for your remarks to see, because I do want to know your perspective. I am not, you know, in the business of wanting to either shut down speech, because I do know that if they come for this group today, they will come for the group that I am part of tomorrow.
STUDENT: Mmhmm. They already did.
STEINBACH: I do believe that. And I understand why people feel like the harm is so great that we might need to reconsider those policies. And luckily they're in a school where they can learn the advocacy skills to advocate for those changes. I hope that you have something to share with us that we can learn from. I hope you can learn too while you're in this learning institution.
[Students snapping fingers]
STEINBACH: I hope you can look through the spectacle and the noise to the people holding these signs. The people who are here to learn. The people just like you who absolutely are fighting for, working for freedom. Just to be free, to be themselves. That is what they are here for. They are here because they feel harmed not just by your speech. If it was just words that would be one thing. You have authority, and you have power to make decisions that impact the lives of millions.
STUDENTS: Mmhmm. [snapping fingers]
STEINBACH: And I hope if you learn anything that you can listen through,
DUNCAN: [Inaudible] the snapping.
STEINBACH: If you can listen through your partisan lens, your hyper-political lens and just look and see human beings who are asking you to take care, and like all guests on our campus, we ask that you come with good intentions and respect. And I do want to hear your remarks, and I do want to say thank you for protecting the free speech that we value here of our speakers and of our protesters, and I want to remind you all of one thing: I chose to be here today. You all chose to be here today. Many people go before Judge Duncan who do not necessarily choose to be there.
[Students snapping fingers]
STEINBACH: And they have to listen to everything he says. Literally thousands of people. You have a choice. You do not need to stay here if this is not where you want to be. You can stay here if this is where you want to be right now. But make that choice. If you do choose to stay here, I do think we should give space to hear what Judge Duncan has to say, and I hope that also you will take the question and answer and comments section to say what you need to say and ask the questions you need to ask. I'm really grateful to be in this institution. I look out and I don't ask, āWhat is going on here?ā I look out and I say, āI'm glad this is going on here.ā
[Applause]
STUDENT: I will now ask that half the folks walk out in protest and the rest of us, lets tone down the heckling slightly so he can get to our questions, uh, which we so very much want to hear the responses to
STUDENT: Thank youā¦ [inaudible]
[Applause]
---------- 20:00 ----------
STUDENT: Leave your signs in front of him.
STUDENT: Feel free to fill in the front.
[Laughter]
DUNCAN: Itās upside down.
STUDENT: So are your views.
[Inaudible]
DUNCAN: Itās supposed to be upside down? Itās supposed to be upside down?
STUDENT: Can you read it?
[Inaudible]
DUNCAN: Um this is an appalling and despicableā¦ [inaudible]
STUDENTS: One more time, one more time.
[Inaudible]
STUDENT: Did you want us to sit quiet?
STUDENT: Finish your remarks.
DUNCAN: A student group like any other student group on this campus invites a speaker. Iām sure the groups that are represented here do it all the time āā they invite speakers. Nobody treats your speakers this way, why are you treating their speaker this way?
STUDENT: Twitter, guns, Covid.
STUDENT: Our speakers donāt tell us our lives arenāt worth anything.
STUDENT: Our speakers arenāt funded by the Koch Brothers.
STUDENT: Our speakers donāt take away voting rights from black people in Louisiana.
STUDENT: Ooh, great point, great point.
DUNCAN: That is a poor point. Thatās a really great point, when did I do that?
STUDENT: Can we get the case for you?
DUNCAN: Yeah please, please you go right ahead. Cite the chapter and verse of how I took away voting rights from people in Louisiana?
STEINBACH: Do you want to get to your prepared remarks?
DUNCAN: Chapter and verse. You just made an accusation, you want to be a lawyer? Fine. When did I take away voting rights from people in Louisiana? You made a specific accusation. Which one is it?
STUDENT: Sheās going through.
DUNCAN: Which one is it? Are you not prepared? You show up when a federal judge shows up to your law school and you say, āYou take away voting rightsā¦ā [inaudible]
[Inaudible shouting]
STEINBACH [approaching Duncan]: Judge Duncan, do you want a moment to be able to compose yourself to give your prepared remarks?
DUNCAN: So, you invite a speaker on campus.
STUDENT: We didnāt invite you.
DUNCAN [to Steinbach]: Iāve heard what you have to say.
STUDENT: That was very disrespectful.
STUDENT: Donāt dismiss her. Please donāt dismiss a black woman.
DUNCAN: Oh, wow! Because, why, because you invite a speaker on to campus, and then you gang up and heckle them to death.
[Shouting]
DUNCAN: And then you invite an administrator to give a staged remark
[Shouting]
STUDENT: You asked for an administrator!
DUNCAN: What is this, like a struggle session?
[Shouting]
STUDENT: Fusilier v. Landry
[Inaudible]
STUDENT: Finish your remarks.
STUDENT: Fusilier v. Landry
STUDENT: Yeah finish your remarks
STUDENT: Do you want me to read it?
STUDENT: Yeah, read it.
DUNCAN: [Inaudible]... a dramatic reading of it, thatād be awesome.
STUDENT: African American voters and the Claiborne Parish NAACP filed suit in 2014 to challenge the electoral method for Louisiana in the 32nd judicial district, blah blah blah. They asserted the at-large elections for theā¦ [inaudible]
DUNCAN: Was I even on the panel?
STUDENT: Yeah it was Higgenbaugh, Jones, Duncan, and Jones did the opinion.
[Inaudible chatter]
STUDENT: Do you remember?
DUNCAN: Awesome. What I donāt remember is taking anybodyās vote on the basis of race.
STUDENT: Of course you donāt.
STUDENT: Because it doesnāt matter to you.
DUNCAN: So, youāve made zero points whatsoever.
[Inaudible shouting]
DUNCAN: Just to be clear, whatās going on here is: A student group invites a speaker. Ok, yeah, I happen to be a federal judge. It doesnāt really matter. You invite a speaker. We have this absurd, whatever the heck that was outside.
STUDENT: A protest, baby!
STUDENT: Exercise of First Amendment rights
DUNCAN: What do they call it?
STUDENT: A protest.
[Inaudible]
DUNCAN: Great. And then they file in here and they heckle you relentlessly, and then an administrator stands up and saysā¦ [inaudible]
STUDENT: Because you asked her to!
[Shouting]
DUNCAN: āI just care about everybody. I just care about everybody. I want everybody to feel welcome or some such thing.ā
STUDENT: Youāre here!
[Shouting]
DUNCAN: [Inaudible] ā¦ everybody who doesnāt agree with you is laughable. And everybody knows it. You know it, the Federalist Society knows it, everybody knows it. You donāt want to hear a single solitary thing [inaudible]
STUDENT: What interest do you have in what we have to say?
STUDENT: Finish your remarks Judge. Weāre giving you a chance.
STUDENT: Everyone just hold on, and let him finish his remarks.
DUNCAN: Do you think thatās going to work in court?
[Shouting]
DUNCAN: Is this a law school?
STUDENT: Yeah! This is our jurisdiction.
DUNCAN: This is not a jurisdiction, this is a law school. How absurd. Do youā¦ youāre supposed to be learning to be lawyers.
STUDENT: We are, thatās why weāre questioning you.
DUNCAN: What court are you going to go in and act like this?
STUDENT: Weāre not a court. Weāre a school.
STUDENT: Thereās no jurisdiction.
ADMINISTRATOR: If we could just let him speak about Covid, guns, and Twitterā¦
STUDENT: He doesnāt want to.
[Inaudible]
STUDENT: He has not said that for the past ten minutes.
STUDENT: Thatās not what he wants to talk about.
ADMINISTRATOR: And then we will have a Q and A, so just let him speak. And Iām [name] the director of engagement, across the street.
DUNCAN: Why would you subject anybody to this treatment? Why do youā¦ [inaudible]
[Shouting]
---------- 25:00 ----------
STUDENTS: Trigger!
DUNCAN: Why would you expect someone to come into this environmentā¦ [inaudible].
STUDENT: We asked the Federalist Society to cancel this event.
DUNCAN: Why do you want to cancel peopleās speech?
[Inaudible chatter]
DUNCAN: These are not responses. This is infantile.
STUDENT: You are infantile, I agree!
[Inaudible]
DUNCAN: This is ridiculous. [To administrator who approached him] You are ridiculous. I cannot believe that you would invite someone here and allow them to be treated this way.
[Inaudible]
STUDENT: Hey, leave him alone! Take it out on us!
[Inaudible]
DUNCAN: Well youāve got it up āā youāve got it the right way up now, congratulations.
STUDENT: Yeah, we know you canāt get it up.
STUDENTS: This is so embarrassing. Heās literally having a mental breakdown.
DUNCAN: Do you think this is an appropriate wayā¦
STUDENT: Have you tried crying about it?
DUNCAN: ā¦ to treat invited speakers at your school?
STUDENT: Donāt come back.
DUNCAN: Youāre in administration here?
STUDENT: Why are you berating him?
DUNCAN: Do you think this isā¦
STUDENT: Do you feel better now?
STUDENTS: He was trying to help you.
STUDENT: Heās your only ally, literally.
ADMINISTRATOR: [inaudible] Weāll take a two minute break
DUNCAN: For what?
ADMINISTRATOR: Because I want them to calm down, so you can say your words.
DUNCAN: So I can say my words.
ADMINISTRATOR: Yes, your prepared remarks.
DUNCAN: He wants me to say my words.
ADMINISTRATOR: Yes, I want to hear what you have to say.
[Inaudible chatter]
STUDENT: Isnāt that what you wanted? Likeā¦
DUNCAN: My words. He wants me to say my words. What has he done wrong to me? He is aiding and abetting this infantileā¦ [inaudible].
[Inaudible yelling]
DUNCAN: [inaudible] ā¦canāt believe you treat your fellow students this way.
STUDENT: I canāt believe you treatā¦ [inaudible]
DUNCAN: [Inaudible]ā¦ your fellow students at this law school. And if you got treated this way by them, youād want to get them kicked out of law school.
[Inaudible]
DUNCAN: Oh yeah, really? Whenās the last time a member of the Federalist Society showed up at one of your speeches and heckled your speaker? When? Anybody?
STUDENT: Weāre not attacking their rights.
STUDENT: Alright everybody. Everybody.
DUNCAN: When is the last time the Federalist Society showed up at one of your speeches and did this to your speaker? Anybody?
STUDENT: Okay letās just let him finish his rant in complete silence so he can get that out and it can go into the newspaper or whatever. Just pointed silence until the Q&A.
STUDENT: Thank you.
DUNCAN: Um. You know what? Fine. Go to the Q&A.
[Laughter]
STUDENT: [Inaudible]... trans people. We listen to trans people.
DUNCAN: If you think. If you think that Iām going to stand here and answer a bunch of hostile, ridiculous, when-did you-stop-beating-your-wife type questionsā¦
STUDENTS: Whoa! Whoa!
STUDENT: Whatās that all about?
[Inaudible chatter]
DUNCAN: You people. I meanā¦
STUDENTS: You people? [inaudible]
DUNCAN: I mean you went to college.
STUDENT: And I donāt think domestic violence is funny.
STUDENT: Yeah, really.
DUNCAN: Thatās what I mean. You have no sense of humor?
[Gasps]
DUNCAN: Youāve never heardā¦
STUDENTS: I was actually a victim of domestic violence. No. I donāt think itās funny.
DUNCAN: Youāve never heard that expression? Youāve never heard that expression?
STUDENT: No. Because I donāt think itās funny.
DUNCAN: You donāt know what a question like that is?
STUDENT: Do you think that it is appropriate for you as a judge on the fifth circuit court, to speakā¦
DUNCAN: I think this entire thing is a joke.
STUDENT: I think [inaudible] is a joke!
STUDENT: Then leave!
[Inaudible]
DUNCAN: Um, somebody who actually wants to ask a question about somethingā¦ [inaudible]
STUDENT: She would like to ask a question. She has a question.
STUDENT A: So, um, thereās been some scholarship about Abbot [indecipherable] ā¦ characterizes, uh, you know, common-good constitutionalist opinion. Would you object to that term, would you, you know, would youā¦
DUNCAN: I mean, I-I donātāI donāt likeā¦
[Audience sighs]
DUNCAN: I donāt adopt ā¦academic theories is sort of what guides, what guides my decisions. That decision is just trying to apply Jacobson vs. Massachusetts is all about.
STUDENT A: Sure.
DUNCAN: Which is an old Supreme Court opinion written by the first, uhm, Justice Carlton. I mean, itās still on the books. It has to do with the state ability to have, to require vaccination. So thatās what that was.
STUDENT A: Sure.
DUNCAN: Whatās your question?
STUDENT B: You said after gay marriage was upheld by the Supreme Court that the opinion was, quote, āan abject failure,ā that, quote, āit imperils civil peace,ā and that the decision, again, I quote, āraises the question about the legitimacy of the court.ā Do you believeā¦
DUNCAN: So did the Chief Justice in dissent.
STUDENT B: Still part of my question āā I havenāt asked it yet. Do you believe that civil peace indeed has been imperiled by that decision?
DUNCAN: Yes, I do.
STUDENT B: And can you tie the imperiling directly to the fact that queer people can get married?
DUNCAN: Yeah, I think that civil peace has been imperiled by this decision as evidenced right here.
[Laughter]
STUDENT: People arenāt allowed to be happy?
STUDENT B: Is speech not peaceful?
DUNCAN: No, because I show up at an event and because I have a difference of opinion on something when I was a lawyerā
STUDENTS: Difference of opinion?
DUNCAN: A difference of opinion. Yes, a difference of opinion. You havenāt heard that? Thatās what you study at real law schools.
STUDENTS: This is a real law school. Just because you couldnāt get in doesnāt make it real.
[Laughter]
STUDENT: Light him up!
DUNCAN: I didnāt apply. Uhm, when people have differences of opinion and a judge shows up at school and gets treated like this, yeah, Iād say civil peace has been imperiled.
STUDENT: And thatās because of gay marriage?
DUNCAN: Next question.
STUDENT: Answer the question.
STUDENTS: If youāre so brave, answer the question.
---------- 30:00 ----------
DUNCAN: Next question.
STUDENTS: Is it because of Obergefell?
DUNCAN: Next question. Yeah.
STUDENT C: Iām interested in what you see as the future of education. Are schools like Stanford going to collapse and is the answer going to be that smaller schools rise upā¦
DUNCAN: I assume schools like this are very, very wealthy and well-funded and well-endowed, and of course they wonāt collapse, theyāll keep going and, and producingā¦ The question that I have is what is the cast of mind that the students that it wants to produce. If thisā¦ I hope that this isnāt representative of the entire student body.
STUDENT: It is.
STUDENT: This room has a capacity of 120, so actually this is like, kind of about a fifth of our school.
DUNCAN: Okay well, so four-fifths maybe are interested in, inā¦
STUDENTS: Theyāre not here.
DUNCAN: Yeah, I wonder why theyāre not here. Why theyād want to be a part of this circus. Right? Isnāt that the point of this? I think, what is the point of this? I think one point of this is to intimidate other people.
STUDENTS: Oh yeah.
STUDENTS: You feel intimidated?
DUNCAN: [Inaudible] ā¦ one, one important point of it. Why would a student who may agree with you on [indecipherable] or maybe doesnāt agree with you, but why would a student want to show up at an event like this with this kind of atmosphere, right? So the idea is to intimidate or even to silence. Is it to erase their existence? Maybe so. So what, how does it feel, you complain about people like me, or judges like me, or lawyers like me, or whatever. You complain about them denying your rights, and erasing your existence, and whatever other buzzword you want, and then you turn right around and do the same thingā¦
STUDENTS: How is it the same?
DUNCAN: ā¦to somebody else.
STUDENT: Weāre not judges.
DUNCAN: Itās the same damn thing and you do it to somebody else.
STUDENTS: [Inaudible] ā¦ the same rights.
DUNCAN: What does it feel to be a complete hypocrite? Thatās what you areā¦
STUDENTS: You have a lifetime appointment to the federal judiciary. This isnāt about you.
DUNCAN: ā¦you are a bunch of hypocrites. You are not interested in actually having a civil discussion with anybody. You just want to shut them down. Whatās your question?
STUDENT D: Hi. Um, okay, so this is going to be super respectful, and notā¦ itās a genuine inquiry, so apologies for that.
DUNCAN: You know... great.
[Chatter]
STUDENT D: Hi. Sorry, let me finish. I apologize.
DUNCAN: Do you? What-what are you doing? What are you doing?
STUDENT: Iām trying to ā¦ [inaudible]
DUNCAN: Youāre standing there with this sign: āFed Suckā. Not particularly clever. Not particularly clever. You stand up. Whatās the point?
[Inaudible yelling]
STUDENT: I think she got what she wanted with the sign.
STUDENT D: So to my understandingā¦
STUDENT: You do not respect women. Talk to her.
DUNCAN: Oh, give me a break. Give me a break, I donāt care whether sheās a woman or not. Sheās holding a stupid sign up in my face.
[Yelling]
DUNCAN: Is that impossible for you to understand? Whatās your question?
STUDENT D: This is actually a question that is specific toā¦
[Inaudible yelling and laughing]
DUNCAN: I mean, what the fā... Whoā¦
STUDENTS: Is she invisible?
[Inaudible yelling, laughing, and chatter]
STUDENTS: I donāt think he knows what that is. Do you know what that is?
DUNCAN: What-whatās your problem, man?
[Laughing, yelling, chatter]
DUNCAN: How could you show up and flash that sign in my face? I mean that is infantile.
[Sign reads: āDuncan canāt find the clitā]
[chatter and laughter]
STUDENTS: Thatās iconic.
DUNCAN: Thatās like a 14-year-old, are you 14 years old? Are you 14 years old?
STUDENT: Are you 96?
DUNCAN: No.
STUDENT: Because to me you look like that. [Laughing]
DUNCAN: Butā¦what?
STUDENT D: May I ask my question?
[Chatter]
STUDENTS: But can you find the clit? Can you find it? Can you find the clit?
DUNCAN: I mean, seriously. Are you a student here?
[chatter]
STUDENTS: Oh, okay, okay, okay. Yeah! Okay guys, okay guys.
DUNCAN: No, Iām sorry. I was just distracted by the stupid, infantile 14-year-old sign. Whatās your question?
STUDENTS: Yeah, you are distracted.
STUDENT D: Sure. So, hi, umā¦
DUNCAN: Hi.
STUDENT D: I am from Texasā¦
DUNCAN: Great.
STUDENT D: I am alsoāI was working in Houston this summer. Iām like native to south Texas. To my understanding, you were the judge, or maybe one of the judges, that you know, allowed the Texas abortion ban to move forward. Let me finish my question. Um. So I am a woman from Texas. I have been raised (Inaudible). About one-third of the undergraduate women at my university reported being sexually assaulted by the time that they graduated. Actually, it was around 48%, about a third nationally of women will experience sexual violence. And should that result in a pregnancy in the state of Texas, you would no longer have the ability to end that pregnancy. And so how am I, as a woman from Texas, to have access to citizenship or autonomy if I am incapable of making choices about my own body and my future existence when the consequences of childbirth and of sexual violence could mean, um, death frankly from giving birth. We have pretty high, um, you know, maternal mortality in the state of Texas, how am I to have access to citizenshipā¦
[Students snapping fingers]
DUNCAN: Whatās with the creepy snapping? I mean, what is that?
STUDENTS: Answer the question. Move on. Youāre creepy.
DUNCAN: What is it youāreāI mean, do-do you talk to anybody that way?
STUDENTS: [inaudible]
Duncan: Anybody else?
[Inaudible arguing]
DUNCAN: Fine, fine, fine. I canāt. You made a speech, great, congratulations.
STUDENT D: The crystalized version of my question isā¦
DUNCAN: What?
STUDENT D: In a society where women experience severe sexual violence- sexual violence that often leads to pregnancy, how can women have access to citizenship and be treated the way they want to be treated if they have no access to their own reproductive rights? Thatās my question.
DUNCAN: Great. Thatās like a long speech. Um, ok you-you mentioned a case that was in [inaudible] the case that was on the panel had nothing to do with any of that. Okay, it had to do with who can you sue to try to enjoin the law.
---------- 35:00 ----------
DUNCAN (cont.): Okay, it had to do with a legal doctrine. Okay. The law was set up so that private people could bring the lawsuitsā Private people brought the lawsuits and they were shut down by the state courts in Texas. So thatās yourā thatās the answer to your question about access as far as that law goes. The Texas state courts shut that law down. In federal court we were dealing with a very specific legal issue, and we went up and got affirmed 95% by the Supreme Court. Thatās how courts work. Courts donāt address questions like that. I mean thatās a very nice speech, but courts donāt address like speeches, courts address legal issues. And that was a legal issue and it went up to the Supreme Court and they said āWell youāre 95% right but maybe you could sue these peopleā so they kicked it over to the Texas supreme court and said āwell can you sue those people?ā and the Texas supreme court said āno you canāt sue those people eitherā. So that didnāt sound as compelling as the speech you just gave, but thatās what federal courts do. Ok? And by the way, the people who address large scale questions like that are legislatures. Legislatures. The congress. The legislatures of states. People acting together to make decisions on difficult issues. But youāre being- evidently some of you- are being taught in law school that it's all up to the āsuper wise solomonic judgesā to just sort of make decisions. Well you know what I donāt ascribe to that particular view that you just shared. We have other branches of government. We have state governments who do this, we have local governments who do things. Thatās an answer to the question.
STUDENT D: Do you ever think about the ethical implications of your decisions? Or no. Is that beyond the scope of your work?
DUNCAN: That- you know what, remember when I said the wifebeater question, thatās a wifebeater question. Thatās, thatās thatās, thatās where [inaudible scream from audience] Yeah I am, Iām doubling down on it, Iām quadrupling down on it because you are willfully misunderstanding what Iām saying.
STUDENT D: No, I know what I wifebeater question is
DUNCAN: Great, so you know itās just a loaded question
STUDENT D: No it assumes the facts not the ethics,
DUNCAN: Yes, thank you
STUDENT D: Which I didnāt do, I didnāt assume any facts. I asked do you think that considering the ethical implications of your decisions is outside the scope of your work?
DUNCAN: Do you mean- I donāt understand the question- do youā do you mean the rules of judicial ethics?
STUDENT D: I mean when the -
DUNCAN: The rules of judicial ethics?
STUDENT D: You know as well as I do, that the courts weigh different interests all the time. That they all the time consider experiments among a range of different required considerations. How does that factor into your ethical considerations as a judge?
DUNCAN: Um so, so letā let me see if I can unpack this. Judges are ruled by rules of ethics; there are codes of ethics. Do we consider them? Oh you bet we do.
STUDENT D: I donāt mean that.
DUNCAN: Oh you donāt mean that? You mean do I sit back and sort of say, well, what is fair, what is fair, what do I think is fair? The answer is judges arenāt supposed to engage in some sort of cosmic fairness balancing because we have elected officials to do such things.
STUDENTS: Wait? A judgeās job is not to decide whatās fair? [mumblings from the audience]
DUNCAN: We have elected officials. Iāll tell you when judges- if there was a law that said āhey judge- maybeā maybe some common law court in some state somewhere is addressing some sort of equitable dispute saying, I donāt know, a contract dispute, something like that. Yeah, judges might engage in some sort of equitable balancing. But something tells me youāyouāre asking a question like āwell is there some sort of cosmic ideal of fairness that you consider?ā
STUDENT D: No my question is-
DUNCAN: And the answer is no.
STUDENT D: In civil rights litigation, constitutional litigation, when you have to balance the interest of the states against the interest of the individual, that's the kind of balancing [inaudible].
DUNCAN: Can you give me a specific example? I know that there are legal doctrines that sort of look like that.
STUDENT: Yeah.
DUNCAN: So give me a specific example.
[Mumbling]
DUNCAN: Sheās asking a question and you just interrupted
STUDENT D: Iām actually ok with this
DUNCAN: Oh great youāre ok with that, my goodness. What did I miss? By going- by not going to law school here? Oh my goodness this is so like invigorating to have this kind of just free for all nonsense
STUDENT: You moved to Q and A!
STUDENT: I just want to say she is a brilliant studentā¦ [inaudible]
DUNCAN: Ok great is that a question, can you give me a specific example of some case?
STUDENT D: A specific example of a civil rights case?
STUDENT: Matthew versus Eldridge
DUNCAN: Ok great great! Matthew versus Eldridge thank you very much. Procedural due process. What do we have to consider in order to, what was it, take away benefits I think? Yeah so the court considered sort of the right to be heard, the right to notes, ok sure [inaudible]. Ok great, thanks. Next question?
STUDENT E: Uh judge, since you refuse to call [inaudible] Katherine Nicole Jett by her name and pronouns, may we call you Kylie Duncan and She/Her?
DUNCAN: You can call me whatever you want
[Students laughing]
DUNCAN: Whatever. Yeah ok great super.
[inaudible]
DUNCAN: Ok next question?
STUDENT: Why did you refuse to call that transgender litigant by her-
DUNCAN: You know, I wrote an opinion on it, go read it.
STUDENT: We did read it.
DUNCAN: Next question? And maybe youāre not persuaded. Super.
STUDENT: It didnāt make sense. Can you explain it?
DUNCAN: Super. Great, good. Next question.
STUDENT F: I did read it, just before this, and Iām confused how that squares with what you said about being respectful of people when youāre talking about like [inaudible].
---------- 40:00 ----------
DUNCAN: Yeah I thought it was perfectly respectful. I gave reasons. I gave reasons, thatās what judges do. I gave reasons.
STUDENT F: Slippery slope argument about like using a bunch of different pronouns and what could happen if you chose a specific course.
DUNCAN: Yeah, weāre talking about, yeah you write your opinion. Next question
STUDENT F: But you didnāt answer my question which is like why did you think that you couldnāt be respectful to one litigant without somehow causing damage or offense.
DUNCAN: For the reasons that I gave in the opinion. Thanks. Next.
STUDENT: How about you give them to us?
DUNCAN: Next question. How about you ask me a question.
STUDENTS: We did.
[Inaudible arguing]
DUNCAN: Okay, great. Yeah, any next question?
STUDENT: How about you give them to us is the next question. Youāre a coward, man.
DUNCAN: Alright, well look. Thanks. Thanks to the Federalist Society for inviting me.
STUDENT: Whoo!
DUNCAN: As for as for the rest of you people.. Yeah, whatever, bye.
[students say bye]
[applause]
DUNCAN: Unbelievable.
Shortly after the speech, with Duncan still at the Podium
STEINBACH: [inaudible]
DUNCAN: This is unbelievable. I cannot believe. From your talking.
STEINBACH: [inaudible]
DUNCAN: No, no, itās genuineā¦ [inaudible]. Itās genuineā¦ [inaudible].
STUDENTS: You come in here waiting for a male administrator. You donāt respect Dean Steinbach. Itās disgusting! Itās disgusting!
DUNCAN: Yeah. You are an appalling idiot.
STUDENTS: Itās disgusting!
DUNCAN: You are an appalling idiot.
STUDENTS: Youāre calling her an idiot?
STUDENTS: Thank you. Thank you for your opinion. It matters. It takes so long to like find the opinion because itās so far down on the list of the recent ACLUā¦ [inaudible].