▶ 0:15:03Chair Grassley: Good morning, everybody. Today we will consider five impressive judicial nominees on our first panel. We will hear from whitney herma ndorder, nominee for circuit judge on the sixth circuit.
▶ 0:15:26Chair Grassley: On our second panel, we will hear from four district court nominees, joshua divine, for the eastern and western district of missouri, zachary bluestone, cristian stevens, marti -- maria lanahan.
▶ 0:15:53Chair Grassley: I'm grateful to my colleagues who agree to cochair this hearing when I leave in a few minutes. The exercise of our constitutional advice role for judicial nominations is one of the most important functions of our committee for the obvious reason that article three judges serve for life, and the judges we confirm will impact the lives of americans for decades to come.
▶ 0:16:21Chair Grassley: I'm pleased that the president has sent five strong choices to the senate for our first hearing. Of the controversial moments in our committee often draw the most attention, it's important to remember that we have a long tradition of cooperation across the aisle, even in the face of heated political differences.
▶ 0:16:44Chair Grassley: Over the last four years, the biden administration put forward many controversial judicial nominees, most would not have been the choice of any republican on the committee, but elections, as we all know, have consequences.
▶ 0:17:02Chair Grassley: Despite our disagreements with their judicial philosophy, it's essential a majority of the judicial nominees from the last ministration received bipartisan support. And as my colleague on my left here who is chairman of the committee, senator durbin said, we are proud of the fact that these nominees have bipartisan support.
▶ 0:17:33Chair Grassley: More than 80% of them received bipartisan support. I'm proud of that as well and I hope that we can have the same partisan support for highly qualified nominees before us. I worry that partisanship will pamper these efforts recently. The ranking member has rated the prospect of a blanket hold on U.S. nominees. I hope that we can work together to avoid this.
▶ 0:18:05Chair Grassley: That will consume more than 230 hours of senate floor time and will keep us from working on other important matters for the american people. There is a long-standing precedent that U.S. attorneys are confirmed by unanimous consent with few exceptions. I understand and know where some democrats are coming from, and that is because our former republican colleagues held several U.S.
▶ 0:18:35Chair Grassley: Attorneys at the end of the last administration. But make no mistake that this isn't what you can legitimately call a precedent for blanket obstruction at the beginning of an administration before even a single one of these 93 U.S. attorneys has been held. Hold should be used selectively and this senator has used holds as well.
▶ 0:19:02Chair Grassley: Blanket holds intended to fully obstruct the confirmation process or misguide and threaten to undermine senate advice and consent. As the ranking member said in the last congress, if the instruction of U.S. attorney is carried out, I quote him, public safety will suffer across the united states.
▶ 0:19:29Chair Grassley: I agree with the sentiment and think that we should not place politics over keeping americans safe. The ranking member and I agree that as he says, there cannot be one set of rules for republicans and another for democrats. Or as I would like to say, what is good for the goose is good for the gander. But we also shouldn't take a single senator's actions as setting precedent for statewide, senate wide proceeding.
▶ 0:19:59Chair Grassley: This would result in a race to the bottom. As chairman and ranking member, I hope together we can agree that will work. We both remain committed to the blue slip despite pressure from respective sides. I hope that we can also remain committed to moving qualified U.S. attorneys and use holds only on an individual basis.
▶ 0:20:30Chair Grassley: Turning to our nominees now, today's business, we will hear from five highly qualified lawyers. I will leave it to the introducers to describe their qualifications in depth, but I will briefly comment about the nominees to be circuit judge. Whitney hermandorde whitney hermandordfer is uniquey impressive even by high standards of this committee. She's clerked for three of the sitting supreme court justices.
▶ 0:21:01Chair Grassley: She was valedictorian of her law school, and she was cocaptain of the women's basketball team at princeton. After one hard-fought loss, her college basketball coach said simply "she isn't afraid of anybody." Mrs. hermandorfer's grit is not limited to the basketball court.
▶ 0:21:28Chair Grassley: As a director of the unit in tennessee, she's led major cases on important issues of civil rights and the separation of power. She's widely praised by practitioners across the political spectrum for her brilliant legal mind, hard work, kindness, and professionalism. Our district court nominees are also highly qualified and I will let senator hawley and schmidt speak about them and their qualifications.
▶ 0:22:00Chair Grassley: We look forward to hearing from each of them today. Now, ranking member durbin. Senator durbin.
▶ 0:22:07Sen. Durbin: This is an historic meeting for the approval of federal judges. We are doing things differently today than they've ever been done since I served in the united states senate. What happened? To decision was made last week by attorney general bondi that the justice department will no longer cooperate with the american bar association rating process for judicial nominees. What is going on here? Why is this being changed so abruptly?
▶ 0:22:39Sen. Durbin: Well, you look back and you can understand if you look at the history. During the first term of donald trump, the names were submitted to the american bar association each judicial nominee. Nine of those nominees were found unqualified to serve on the federal bench by the american bar association. Yet president trump persisted anyway. Eight if than ended up being approved for the bench.
▶ 0:23:09Sen. Durbin: What is that all about? The american bar association has a process of going to the peers and colleagues of nominees and asking what was your experience in the courtroom as a judge, as cocounsel, as opposing counsel? What did you think this individual was doing in the professional capacity? Did they conduct themselves honorably? Just basic questions. In the nominees are subject to ratings by the american bar association.
▶ 0:23:40Sen. Durbin: Qualified, well-qualified, unqualified. Under trump's first term, nine of 10 were found unqualified. Eight of them were approved for lifetime appointment on the federal bench. All right, so what about your nominees under president biden? 235 were approved by this committee. Were any of them found unqualified by the american bar association? Not one.
▶ 0:24:01Sen. Durbin: So the difference is the attorney general has decided to protect against the vulnerability that some nominees, maybe even some today might have been found unqualified. I think that a mistake. I think that kind of professional evaluation which has been accountable to both parties for decades she continued with the trump administration has decided the ava is no longer welcome to review judicial nominees. That's a mistake.
▶ 0:24:34Sen. Durbin: And then there's the trump administration's rejection of the federalist society. The federalist society. I asked this question for 20 years, literally 20 years. What is going on here? Why is this the secret handshake of all the republican nominees that they belong to the federalist society, created by leonard leo and others. A lot of the nominees say it is just a free lunch, go ends into a lecture, it doesn't mean a thing.
▶ 0:25:02Sen. Durbin: But it turned out to be a recurring pattern that if you're going to be considered as a serious nominee, you've got to be part of the federalist society. But guess what happened recently? Last week president trump wrote untruth social and I quote, "I am so disappointed in the federalist society because of the bad advice they gave me on numerous judicial nominees." he also called one of the organizations longtime leaders, leonard leo "a real sleaze bag"
▶ 0:25:35Sen. Durbin: Who "probably hates america." from president trump's own mouth. Yet during his first presidential campaign, then- candidate trump said "we are going to have great judges, conservative, all picked by the federalist society." president trump's mindless inconsistencies are a classic example of situational ethics.
▶ 0:25:59Sen. Durbin: When you toss out the american bar association and utah that the federalist side, they don't want anyone looking over their shoulders to find out what they believe, what they've said, what they've done. I don't think that is in the best interest of picking the right people for the judiciary of either political party. And then there's this issue that the chairman raised and he and I are friends so this is not a personal thing, been wrestling with this between us for weeks about how to resolve it.
▶ 0:26:30Sen. Durbin: Here's what it boils down to. Trump's first term, 94 U.S. attorney appointees. Democrats in the majority in the senate. That must've been a battle royale. It was not. They were all approved by voice vote. In the committee, voice vote on the floor. We decided that we do a background check for the fbi, and then basically agreed to them on a bipartisan basis.
▶ 0:27:00Sen. Durbin: Things were going along pretty well. I think both political parties felt that was a fair process. And then something happened. One of the senators from the state of ohio, jd vance, who went on to become vice president, decided to object to getting these votes on the floor of the U.S. senate, so he wanted to put two or three days of procedure into the choice of each of the U.S. attorneys. It stop the process.
▶ 0:27:28Sen. Durbin: As the chairman just noted, when you start taking three or four days for 93 nominees, you start eating up the calendar of the senate and they can't do anything else. I appealed to senator vance at the time saying you don't want to do this, to put an end to this process is just not appropriate and it's not fair to these nominees. You are not objecting to any single person being unqualified, you are saying that every one of bidens nominees has to go through a three or four day process on the floor. It's just unmanageable. It's unreasonable.
▶ 0:27:59Sen. Durbin: And guess what, the tables have turned. There comes a time when you want to move these and we are going to have to say is democrats we are going to follow the advanced precedent. So it isn't just the fact that jd vance started, but I would go to the floor quadra different times asking for unanimous consent for him to reconsider this position. Don't do this, stick with the original approach we used under president trump the first term and president biden as well.
▶ 0:28:31Sen. Durbin: And when he's off campaigning for vice president, a group of republican senators, I'm not going to name names but they are all a matter of record, joined him on the floor to sustain this proceeding. I've been saying to chairman grassley you expect me to just look the other way now? U.S. attorneys are coming before us and I'm supposed to say let's go back to votes again. One set of rules for democrats, another for republicans. That's the mess we're in. We can and we should work this out. I've got a hold of one nominee from florida.
▶ 0:29:03Sen. Durbin: I've spoken to both florida senators about it. It isn't personal. We've got to find a way out of this that is fair and bipartisan. And we can stick with for both political parties. You can't just change the rules overnight and as we are faced with. So Mr. chairman, this is more than just an ordinary meeting of nominees to be considered by this committee.
▶ 0:29:23Sen. Durbin: This is the first time no aba involvement, the federalist society is now a suspect sleaze bag group that used to be required approval for anyone to be taken seriously, and we still have to resolve the mess left behind by vice president pence.
▶ 0:29:42Chair Grassley: I don't expect you to know this but I had at least one conversation -- I want to tell everybody come at least my colleagues here, but I had at least one conversation with one of the senators other than jd vance about these nominations because I thought this set a bad precedent. Maybe you and I can work it out.
▶ 0:30:12Chair Grassley: I do have a short rebuttal to what you said about the aba. The ada can still send letters to the committee just like any other organization. But attorney general bondi's decision to no longer provide then special access to nominees is hardly surprising. For decades, republicans have criticized the progressive bias of the aba.
▶ 0:30:43Chair Grassley: These complaints aren't new and are why the bush administration stopped conferring with the aba to select nominees. Examples of bias by the aba abound. Just last congress, the aba told us that the biden appointee -- was "qualified" to be a federal judge.
▶ 0:31:12Chair Grassley: At the hearing, she didn't even know what the article two of the constitution was. The same aba famously told us that republican appointed judge frank easterbrook, a highly respected law professor who had argued 20 cases before the supreme court was in some members estimations not qualified.
▶ 0:31:39Chair Grassley: The aba has chosen to act as a partisan progressive organization. They advocate for transgender causes, racist ddi policies, and the outlandish assertion that the equal rights amendment is now part of the constitution. They've recently sued the trump administration for cutting usaid funding and its current president has publicly attacked the administration.
▶ 0:32:09Chair Grassley: There political bias is obvious and has been for years. It's no surprise that the current administration doesn't trust the aba to be a neutral arbiter of the nominee appointments. Now we will go to senator blackburn to introduce the nominee from her state.
▶ 0:32:31Senator Blackburn: Thank you Mr. chairman and I am absolutely so pleased to introduce whitney hermon door for -- hermandorfer. She is his very first judicial nominee for his second term, and I am thrilled that we have such an outstanding and qualified nominee to come before us. Whitney is a native tennessean.
▶ 0:33:03Senator Blackburn: She grew up in the nashville area. She attended school where she was a standout, and today we have a lot of those alums watching to see whitney as she is here before our committee. She received her ba magna cum laude from princeton where she was cocaptain of the women's varsity basketball team.
▶ 0:33:28Senator Blackburn: She received her jd from george washington university, and as you mentioned, Mr. chairman, she graduated first in her class and she served as editor-in-chief of the log review. So she is smart, she is athletic, she is well-rounded. She is accomplished. And that is repeated in her career.
▶ 0:33:57Senator Blackburn: After she finished law school, she was an associate at williams and connelly where practice mainly involved appellate litigation and regulatory and administrative law. In addition, she has clerked for four federal judges, including three supreme court justices.
▶ 0:34:20Senator Blackburn: Justice alito, justice barrett, and then judge kavanaugh after clerking, she joined williams and conley again from 2021 to 2023. In 2023, whitney also served as an adjunct professor at her all modern, george washington university law school.
▶ 0:34:46Senator Blackburn: Since 2023, whitney has served as director of the strategic litigation unit in the office of tennessee attorney general jonathan spinelli. In that role, whitney leads a team of talented attorneys in the ag's office fighting to protect the interest of tennesseans and our states enacted policies.
▶ 0:35:13Senator Blackburn: In the second term, president trump is looking to fill our federal judiciary with the best of the best. There is no doubt in my mind that whitney fits this mold. She will be a tireless advocate for our constitution. Someone who will apply the law as it is written, not try to rewrite the law or the constitution from the bench.
▶ 0:35:41Senator Blackburn: And she's eminently qualified to serve on the sixth circuit. I could not be more honored than to support her nomination and Mr. chairman, I'm looking forward to working with you and leader thune to really get her confirmation completed very soon and see her seated on the bench.
▶ 0:36:00Chair Grassley: Thank you. Senator hagerty.
▶ 0:36:04Senator Hagerty: Thank you for allowing me to join today. It's my privilege to join senator blackburn introducing whitney hermandorfer, someone was now president trump nominee to be circuit judge of the united states court of appeals for the sixth circuit. Whitney's story begins in her home state of tennessee. Let me begin with her academic background. She may well be the most credentialed lawyer to ever appear before this committee.
▶ 0:36:32Senator Hagerty: She began earning a sociology degree magna cum laude. While she was excelling in the classroom she was a leader on the court. A different sort of court. Serving as cocaptain of the women's varsity basketball team. Next at law school she graduated first in her class. Not only that, whitney served as editor-in-chief of the log review, making her scholastic success all the more impressive. Whitney then accumulated the most prestigious series of -- that I've ever seen.
▶ 0:37:01Senator Hagerty: She worked in the district of D.C. for my friend judge leon, then circuit judge brett kavanaugh and finally for justice samuel alito and amy coney barrett. Frankly, that's remarkable. Most recently she served as director of strategic litigation to be tennessee attorney general. She served as lead strategist and advocate for the state of tennessee in its most complex and its most sensitive cases. She's distinguished herself in that role.
▶ 0:37:29Senator Hagerty: As an advocate she brings profound insight regarding structure to genius of our constitution. She leaves careful nuance reasoning, moral arguments, earning the respect of the judges before whom she appears. She has the experience and the demeanor that very best judges possess. Her professional achievements are only one side of this exceptional person. Her story is classic tennessee.
▶ 0:37:55Senator Hagerty: She hails from franklin just south of nashville, child of a songwriter and a stay-at-home mother. She graduated from high school and with the cocaptain of her school basketball team that won the state championships during her senior year. Now back at home in the rolling hills of middle tennessee, whitney fills what little spare time she has as a proud wife and mother of three daughters and somehow still find the time to sit in coaching her daughter third grade basketball team and teaching sunday school at her church.
▶ 0:38:25Senator Hagerty: You can't spend five minutes with whitney and not be impressed by her humility and her genuine kindness. For optimism is simply infectious. Perhaps most important is her genuine love for our constitution. She understands the constitution must be interpreted according to the original meaning, that its meaning doesn't shift due to changes in public opinion, nor the preferences of whoever it is sitting on the bench. Whitney is the very best and the very brightest better nation can offer.
▶ 0:38:53Senator Hagerty: I'm confident that whitney will, if confirmed, administer justice without fear or favor and without preference to the board -- the poor with a rich, the week where the powerful. She is an outstanding nominee and the committee to vote for her nomination.
▶ 0:39:10Chair Grassley: You can stay or go, whatever you want to do. Now we are going to have senator hawley and senator schmitt. Senator hawley.
▶ 0:39:23Senator Hawley: This is a great day for the state of missouri, it is an honor to introduce four outstanding missourians who are being nominated by president trump for the federal bench and we are very proud of the fact that these are president trump's first judicial nominees from the state of missouri. Let me start with josh devine, our current solicitor general. Josh's experience as solicitor general is wide-ranging.
▶ 0:39:48Senator Hawley: He litigated in trial courts and appellate courts, in the state supreme court, in federal trial courts, and federal appellate courts. Maybe hundreds of times by this point. Anyway you look at his record, it is astounding.
▶ 0:40:04Senator Hawley: Just to quantify it in dollar terms, josh as solicitor general of missouri has won a $725 billion win record for the state of missouri including a judgment against china for the harm caused to missourians during covid-19 of $25 billion. Josh comes to us from yale law school, he's been a clerk at the U.S. supreme court for justice clarence thomas.
▶ 0:40:34Senator Hawley: He worked in the missouri attorney general's office versus a deputy solicitor general I had the privilege to hire him, then in the senate as chief counsel. Then back to the solicitor general's office now in the state of missouri, and he is done all of this while serving his wife and family is probably the most important services rendered. They are here today. His brilliant and beautiful wife and their six children. And I hope it's ok if I tell everybody that number seven is on the way.
▶ 0:41:05Senator Hawley: Elizabeth and the kids are all with us today, we are so glad to have us. Something about josh's personal fortitude, just a couple of years ago while he was in the midst of these very high profile, high-intensity, high-stakes lawsuits, josh suffered a catastrophic accident and was confined to a wheelchair and early prognosis was he may not ever walk again.
▶ 0:41:26Senator Hawley: But josh fought to regain his ability to walk just as he has fought for missourians in court day in and day out and you will see here in the moment when he walks to the table that he has now fully regain his ability. We thank the lord for that, but we also look at his tenacity and the character that it displays. Maria lanahan is a graduate of gonzaga university, chicago law school and has been a force is the principle solicitor general in the state of missouri.
▶ 0:41:59Senator Hawley: Her experience is wide-ranging, litigated in court at every level. Trial, appellate, federal, state, and before joining the attorney general's office, she had elite federal clerkships, she served in private practice, she did and has counsel work. I will be taken with what andrew bailey who was here today, by the way, he said that maria was in his view one of the finest legal minds in america and one of the finest eagle minds he's ever served with.
▶ 0:42:29Senator Hawley: It's a delight to see maria here today. Zach bluestone, his legal career has taken literally everywhere and he's excelled everywhere he's been. Georgetown, the university of oxford, harvard law. You surely among the best educated lawyers that we see on this committee. He clerked on the eighth circuit court of appeals. He's working all three branches of the federal government. He has significant trial and appellate experience in both federal and state courts.
▶ 0:42:57Senator Hawley: He worked ably by my side in the missouri attorney general's office as we worked to protect the constitution and the law and his record as a prosecutor is absolutely second to none. And finally the honorable cristian stevens. We are so proud he is a missourian through and through, who did his undergraduate work at the university of missouri, graduated through the university of missouri school of law, spent 15 years as a federal prosecutor in our state.
▶ 0:43:27Senator Hawley: I'm probably one of the best federal prosecutors we've ever had in the state of missouri, and is now serving ably on the bench in the state of missouri. He was first assistant to senator schmitt and he is going to make an absolutely terrific federal judge. I want to say finally in closing, these are four tremendously, immensely, superbly qualified nominees. And I look forward to seeing them approved by this committee and confirmed in due course on the floor of the senate.
▶ 0:43:58Senator Schmitt: It is a great day for missouri and a special honor to have the first four pix come from our state. I share that sentiment with senator hawley and a know it is a big day for them. I feel like we can share in a little of that pride with all four having worked with me in the missouri attorney general's office at different times, different tenure. These nominees have something else in common.
▶ 0:44:24Senator Schmitt: If you look at their legal experience, it smart by exemplary public service of the people of missouri, protecting their liberties, their safety, and upholding the rule of law. I'm so proud of their career that they lead, that had led them to this day and that president trump is made such spectacular pix for these important positions. They are among the finest judges on the federal bench, I'm confident of that. That each also have the highest moral and intellectual fiber.
▶ 0:44:53Senator Schmitt: They each possess great experience, wisdom and judgment, but rather than lumping them all together, let me introduce them briefly individually. Cris stevens has dedicated his life to keeping missourians safe and promoting law and order. He's a judge currently at the missouri court of appeals for the eastern district. He was my first assistant attorney general and before that was my criminal chief.
▶ 0:45:17Senator Schmitt: When I succeeded josh hawley, senator hawley as attorney general, you have to build a team. You have to really utilize that social capital that hopefully you've built up when you were asking around to fill some of these important positions when you are new to that spot in the team, and his name just kept coming up over and over by respected lawyers that I knew and I knew that we wanted him to have a role to play in keeping missourians safe.
▶ 0:45:44Senator Schmitt: He doesn't live too far from where I live and we met at pj's tavern and had a couple bush lights and I immediately knew that he was the right guy and he proved it over and over that he is somebody very capable. Outside of his tenure in the attorney general's office, he had a distinguished career graduated with academic honors from university of missouri undergrad and school of law where he was editor-in-chief of the missouri law review.
▶ 0:46:14Senator Schmitt: He clerked for chief judge bowman ii on the U.S. court of appeals for the eighth circuit be stacked before serving as assistant U.S. attorney for the eastern district of missouri for 15 years. One of the most accomplished federal prosecutors we've seen in generations. He was a partner at armstrong. After working at the attorney general's office with me, he joined the missouri court of appeals where he's been a judge for four years now.
▶ 0:46:44Senator Schmitt: He's a great husband to his wife and a great father to his children, a devout catholic. I'm confident that chris stevens of the right thing every single time and then very competent he will be a great federal judge. Maria lanahan has dedicated her career to a life of public service as well.
▶ 0:47:05Senator Schmitt: I had the privilege of hiring maria at the attorney general's office first in the solicitor general unit which was then led by john sauer who we are also proud to call him missourian as well, as the first deputy solicitor general in my office. Maria's determination, focus, and pursuit of the truth helps her excel in protecting missourians rights, raining and the excess of big government and defending the state in court.
▶ 0:47:36Senator Schmitt: We attended duns agha university as a member of the women's basketball team and graduated summa cum laude. She then attended the university of chicago school of law where she was the articles editor at the university of chicago law overview. She clerked for the honorable brian zara in the michigan supreme court before clerking for the honorable raymond rendered who I also see here today. On the U.S. court of appeals.
▶ 0:48:10Senator Schmitt: She has been a rock star in the missouri solicitor general's office for the past five years. Maria has great legal experience in the private sector. She is incredibly active in the community, coaching youth basketball as a big sister in the big brother-big sister of easter missouri, supporting her local parish and helping provide local educational opportunities for youth.
▶ 0:48:36Senator Schmitt: She's a great wife to her husband michael who is here today, a great mother to their children and also a devout catholic. With her moral character, academic success, professional experience and legal acumen, she's going to be terrific and a great addition to the eastern district of missouri. Welcome, maria. Zach bluestone, I had the pleasure of having him in my office on the solicitor general unit for the first two years that I was attorney general in missouri. He went on to the U.S.
▶ 0:49:07Senator Schmitt: Attorney's office and has done great work there. He's intelligent, has all the credentials. He said world-class training. This time has -- as a lawyer has been marked by nothing but success. He also clerked for the eighth circuit, worked for similar orrin hatch, a former chairman of this committee. He served with distinction in the U.S. attorney's office for the last five years and has worked in all three branches of government and in both state and federal government.
▶ 0:49:38Senator Schmitt: He's dedicated his life to promoting law and order in our state and has done so with such distinction in his views towards the rights and privileges of american citizens who stand accused of crimes. He's a man of the highest character and he's also going to make an excellent judge. A lot has been said about josh. He's done great work with attorney general bailey. Work for me very briefly before coming to the senate.
▶ 0:50:06Senator Schmitt: He's brilliant, motivated, somebody widely respected for his thoughtful approach to law and to keeping missouri safe. He is going to be a great judge as well.
▶ 0:50:15Chair Grassley: Now, Mrs. hermandorfer come to the table, and before you are seated with you please let me swear. Do you swear that the testimony you are about the gift before this committee will be the truth, the whole truth, and nothing but the truth, so help you god? Please be seated. And our custom is that before you give your opening statement, if you want to introduce anybody, these do that.
▶ 0:50:45Chair Grassley: Proceed.
▶ 0:50:51Mrs. Hermandorfer: Thank you so much, chairman grassley. Good morning ranking member durbin, members of the committee. Anti-semite for scheduling this hearing to consider my nomination. Thank you also to senator blackburn and senator hagerty for the very generous introduction and for your support. I'd also like to thank president trump for the great honor of this nomination. I have here my family with me.
▶ 0:51:24Mrs. Hermandorfer: My wonderful husband greg, our three daughters, aged 9, 5 and two. So far, so good, girls. They made it through the introduction, that is a win from my perspective. My parents, cliff and leslie are also here. My father-in-law is with us as well. My mother-in-law carol is home helping watch our dog, which is an important member of their family because he keeps my husband company in a house full of girls.
▶ 0:51:55Mrs. Hermandorfer: Otherwise we have a dear friend also with us. Family watching at home in nashville. We are blessed to be with many family members. My sister and her husband, their two children. My brother-in-law and sister-in-law also in nashville with their kiddos, one on the way. So many family members have given me support throughout my life. As have so many members of the legal community.
▶ 0:52:25Mrs. Hermandorfer: Coaches, teammates, teachers, colleagues, mentors. Of course, the judges for whom I've clerked. I can't express enough the gratitude I feel for their mentorship and support throughout my legal career, and I'm just so honored to be here. Thank you so much.
▶ 0:52:46Chair Grassley: Are you done? You've got an opening statement?
▶ 0:52:52Mrs. Hermandorfer: I was told to keep it brief, so that's what I tried to do.
▶ 0:52:57Chair Grassley: Ok, then we will go to questions. You've obtained clerkships, and impressive congressman for a young lawyer to be before a supreme court clerkship. It's a mark of great academic distinction. Seems to me without knowing all the history of clerks that you were kind of in a category all by yourself having clerked for three sitting supreme court justices.
▶ 0:53:29Chair Grassley: One third of the court. What lessons from your clerkship will you take to the bench if confirmed as a judge?
▶ 0:53:39Mrs. Hermandorfer: Clerking for the distinguished for whom I clerked with, a tremendous honor. Something I never anticipated I would have the privilege of doing. I learned, chairman, the importance of the judicial process. We have a deliberative judicial process for a reason. We received briefing, we hear argument from the parties. Jurors discuss issues with their colleagues.
▶ 0:54:10Mrs. Hermandorfer: And through that process, the correct rule of law emerges and that is what is to be followed. That might sometimes diverge from how you originally thought a case might come out. So the importance of the process is one thing I learned.
▶ 0:54:29Mrs. Hermandorfer: Of course had exposure to a tremendous volume and array of types of legal matters from sentencing hearing revocations to the most meaningful constitutional questions on the supreme court of our generation. So I learned that each case of importance to the nature is important to the parties and should be treated with respect and care.
▶ 0:54:54Mrs. Hermandorfer: And finally, I learned that you can go through that process and issue the correct rule of law and the nurses to april might basically with the decisions. It is important to understand that in our system, decisions will not always be popular and that it takes grit and courage and termination to carry out your article three obligation under the constitution.
▶ 0:55:21Mrs. Hermandorfer: So those are things I witnessed and I would try to take with me to the bench.
▶ 0:55:26Chair Grassley: You've also practiced law at a highly regarded law firm, and you've led litigation for the state of tennessee and some other countries most important cases. Some progressive organizations have suggested that you lack the requisite experience to be a circuit judge. So can you tell us how many cases you've served as consul for a party?
▶ 0:55:57Mrs. Hermandorfer: My best estimate is I've served as counsel probably about 80-90 cases. Distinct matters ranging from state court, federal court, primarily practiced in federal court of appeals in federal district court.
▶ 0:56:19Mrs. Hermandorfer: I think recently, cases have come fast and furiously, and I've been privileged to handle a number of nationally significant matters on behalf of my home state of tennessee as well as many other states.
▶ 0:56:34Chair Grassley: Have your experience as a lawyer for the state of tennessee on behalf of private clients prepare you to be a judge of the sixth circuit.
▶ 0:56:44Mrs. Hermandorfer: I would hope they have, chairman. I've represented clients at the law firms of all types, from individual criminal defendants to asylum-seekers, to businesses, to fortune 100 companies, to mom-and-pop stores.
▶ 0:57:03Mrs. Hermandorfer: In my current role as director of strategic litigation unit, I've recruited 7-8 attorneys into our office to litigate some of the nation's most significant and complex constitutional statutory and ministry to procedure matters on behalf of tennesseans and through that experience, I've extensive knowledge of the federal court system and of how to approach many of the legal issues that would come before me if I were so fortunate as to be confirmed
▶ 0:57:34Mrs. Hermandorfer: To the sixth circuit.
▶ 0:57:35Chair Grassley: My last question is please describe what judicial advantage means to you.
▶ 0:57:42Mrs. Hermandorfer: To me, judicial independence goes to the heart of the structure of our constitutional system. The founders set up three branches of government, coequal branches, and the founders chose mastic and ability for two of those branches in the electoral process. Lawmakers are elected and the president is accountable to the people through the electoral process.
▶ 0:58:11Mrs. Hermandorfer: By contrast, the framers placed accountability for article three judges in a different place. And that is judges are intentionally not accountable to electoral politics or to the majority in a political sense. Instead they are accountable to the constitution and to the rules that bind the exercise of the article three judicial power.
▶ 0:58:38Mrs. Hermandorfer: And that includes limiting judgments to cases or controversies, it means adhering to the jurisdictional limits that bind courts, and it means understanding that with the power to issue binding rulings that in some cases control the actions of branches of government, with that power comes great responsibility to ensure that rulings are proper in scope and legality.
▶ 0:59:05Chair Grassley: Thank you for answering my question. Now it's up to senator durbin. But before he takes over, senator hawley, you will take over for me now, please. Go ahead, senator.
▶ 0:59:23Sen. Durbin: Welcome, thank you very much for coming before us today and bringing your great family, glad they are here. Let's get down to basics. Under article three, your loyalty is to the law and constitution or to the president who nominated you?
▶ 0:59:39Mrs. Hermandorfer: Under both article three and article six, the constitutional, the other is to faithfully follow the laws that apply in a given case.
▶ 0:59:48Sen. Durbin: And the constitution?
▶ 0:59:51Mrs. Hermandorfer: Absolutely.
▶ 0:59:52Sen. Durbin: Is the executive branch required to follow the orders of the federal court?
▶ 0:59:57Mrs. Hermandorfer: Of course this is an issue before the supreme court right now and what I heard the solicitor general say is however understand the law as well which is if there is a judgment issued by a court as for parties that absolutely binds the parties in the way to go about your business, if you disagree with an order is to seek may be a stay or emergency relief or appellate review.
▶ 1:00:23Sen. Durbin: And after you've exhausted all of those opportunities, is the executive branch of our government required to follow the orders of the federal court?
▶ 1:00:31Mrs. Hermandorfer: If the supreme court issues in order at the end of the appellate process, that order is to be followed. As parties in the case and have
▶ 1:00:42Sen. Durbin: Mrs. hermandorfer:
▶ 1:00:46Sen. Durbin: Mrs. hermandorfer, I'm a little bit interested in the decision that you and the state of tennessee made to file an amicus brief in the supreme court in the case of trump vs. Casa. That case involved challenges to president trump's unconstitutional executive order that purports to end birthright citizenship.
▶ 1:01:06Sen. Durbin: President trump's executive order has been blocked by a judge appointed by president ronald reagan who said and I quote "I've been on the bench for over four decades, I can't remember another case where the question presented was as clear as this one. This is a blatantly unconstitutional order," referring to the order to end birthright citizenship. The state of tennessee was not a party to the case. You filed this amicus brief voluntarily.
▶ 1:01:34Sen. Durbin: You reached a conclusion which the court ruled the most blatantly unconstitutional order in decades. Why?
▶ 1:01:43Mrs. Hermandorfer: So of course we were amicus in the case, and the decision was made by the attorney general reflecting the values of tennesseans that we were not satisfied that all of the information regarding the contemporaneous meaning of the 14th amendment was being presented to the various courts, given that the litigation was proceeding so quickly and at such a pace through the tro and
▶ 1:02:14Mrs. Hermandorfer: Pi process. So our role as amicus is any amicus's role which is to bring additional information that could be helpful to the court's attention and what we did there was draw the court's attention to contemporaneous 1800s-era sources remain -- regarding the meaning of the mmn.
▶ 1:02:36Mrs. Hermandorfer: And I will note that even in courts that disagreed with the president's executive order, tennessee's amicus brief was called out in particular as especially well-written and mentioned by the judges in the hearing. So I'm hopeful that we provided helpful information as the court considered its decision which is all you can ask, to ensure the court has all the information before it as it deliberates.
▶ 1:03:02Sen. Durbin: Did you agree with president trump on this issue?
▶ 1:03:05Mrs. Hermandorfer: Debrief did not take an ultimate position with regard to the merits of the executive order. What it did was say the notion that this is an open and shut case is hard to square with the contemporaneous evidence and executive branch practice in the latter 1800s interpreting the meaning of the citizenship clause. And so I stand by completely those arguments and the historical sources that we advanced to the court.
▶ 1:03:35Sen. Durbin: You heard my opening marks perhaps when I relate my experience with the so-called federalist society. I asked judicial nominee after nominee why do you belong to this group? It became pretty clear because this was the secret handshake, the calling card if you wanted to be considered favorably to be in the republican nominee for a federal judge. Well, they seem to have fallen into disfavor with president trump.
▶ 1:04:04Sen. Durbin: Leonard leo has been characterized by the president as a sleaze bag and he went on to say some other negative things about the federalist society. So now there's a new operation called the tenny of network? Are you familiar with that?
▶ 1:04:20Mrs. Hermandorfer: Yes.
▶ 1:04:21Sen. Durbin: Few realize it was created by that same old sleazebag?
▶ 1:04:25Mrs. Hermandorfer: I don't think I was aware of that.
▶ 1:04:28Sen. Durbin: What is it?
▶ 1:04:30Mrs. Hermandorfer: I am a member as disclosed on my s jq, I am a new member so I haven't had too much involvement, I will say. My understanding is that it is similar to the federalist society in that it is a debating network and a networking group where individuals from across industries can get together and discuss the issues of the day and get insight into what
▶ 1:05:00Mrs. Hermandorfer: Challenges might be facing various industries.
▶ 1:05:02Sen. Durbin: Listen, you must lead a pretty busy life. Your professional responsibilities, family responsibilities. Why would you want to join this network so you can -- well, describe for me, why would you want to join this network?
▶ 1:05:17Mrs. Hermandorfer: It was commended to me by colleagues and then always interested as a tennessean and connecting with other tennesseans to discuss the issues of the day. I've not had any meaningful involvement, given that I believe I was asked to join or invited to join a week or so before I was informed that I was receiving this nomination, and so I haven't attended since then any sorts of events or been involved.
▶ 1:05:44Sen. Durbin: Thank you. >> I'm going to yield my time now to senator blackburn. This before I do I want to clarify one thing to make sure I understood your answer to my friend senator durbin's question. He's asking about the classic case, your brief. The state of tennessee was the party filing, is that correct?
▶ 1:06:06Mrs. Hermandorfer: That's right, and there's no filing that I would ever make or have made that would not reflect the interest of tennessee. >> you are representing your clients. You work for the state of tennessee.
▶ 1:06:23Mrs. Hermandorfer: That's right. In a public servant who has a client and adheres to the direction. >> think you're amicus brief also spent a good deal of time arguing the courts do not have article three power to bind nonparties. In other words, it's about universal injunctions or nationwide injunctions.
▶ 1:06:42Mrs. Hermandorfer: That was an important part of the brief.
▶ 1:06:46Senator Blackburn: I have three letters I want to submit for the record before I begin my questions. One is from tennessee governor bill lee, and then another from 24 state attorneys general. And also a letter from tennessee attorney general jonathan sir mattie. >> without objection. >> to chairman durbin, I will be happy to talk with him about the network.
▶ 1:07:13Senator Blackburn: My son and his wife in so many outstanding young individuals really benefit from that. It's been beneficial in their life. I will be happy to eat -- happy to enlighten you a future time. I want to also mention my democratic colleagues ask nearly every nominee this congress whether the executive branch must follow court orders.
▶ 1:07:42Senator Blackburn: And then they attack the nominees if they don't give a categorical yes or a no because the question is nuanced and academic. Yesterday we had a hearing on overreach of district court judges in the universal injunctions. Now, my colleague senator kennedy -- >> I deny everything. >> you can't deny this one, buddy.
▶ 1:08:14Senator Blackburn: He posed essentially the same question to the panel, asking whether they would advise a client to decide a court order. Professor shaw was the witness for the democrats. And here is how she answered. And I'm going to quote her.
▶ 1:08:36Senator Blackburn: I would not rule out ever the possibility that a sufficiently egregious order -- there should be some consideration if there is some way I think it is a qualified answer, yes, and an extremely narrow band of cases, I think it would be considered -- yes. So the democrats own witness at yesterday's hearing on the issue of judicial overreach disagrees with them.
▶ 1:09:09Senator Blackburn: I suggest when nominees are asked this question that is intended to be a gotcha question that they just refer back to professor shaw's answer. I think it's unfair to attempt to conjure up disputes with a hypothetical, and these nominees are clearly committed to the law and to the rule of law.
▶ 1:09:40Senator Blackburn: Mrs. hermandorfer, I'm so pleased that you are before us. I want you to just lay out for this body why you are qualified to serve on the sixth circuit.
▶ 1:09:54Mrs. Hermandorfer: My substantive experience ranges across complex areas of law. I've litigated as counsel dozens of cases in the federal courts across nine circuits. I've argued cases in federal district courts, circuit courts, supreme court cases, state trial courts, state appellate courts.
▶ 1:10:18Mrs. Hermandorfer: So I think my litigation experience serves me well as does my clerkship experience in which I was working within the judicial branch getting a firsthand view of the deliberative process and the importance of treating every case and every party with care and respect.
▶ 1:10:34Mrs. Hermandorfer: I think perhaps the most important qualification in my recent work is that I'm not a stranger to litigating cases that I know are going to be in the public spotlight, and on which people have strongly held views in either direction.
▶ 1:10:53Mrs. Hermandorfer: And when you are in a case like that, it is absolutely imperative that you treat every issues and every party and every opposing counsel with respect because you have to model's ability the most when you're in hot button type situations.
▶ 1:11:13Mrs. Hermandorfer: And I've also gotten a bit of a knowing that what I do will not always be well received by all members of the public and I have learned how to take criticism and attacks and personal threats and move forward with professionalism and integrity.
▶ 1:11:31Sen. Blackburn: . I know you will apply the law and you will protect people's individual rights. About how you will approach cases that come before you and describe your method of statutoryinterpretation.
▶ 1:11:49Mrs. Hermandorfer: My method reflects that the enacted text reflects the will of the people as of the time of ratification. The supreme court has instructed that if the meaning of the text at the time it was enacted is clear, then that is the meaning that fixes your interpretation and governs the legal issue that might be before the court.
▶ 1:12:14Mrs. Hermandorfer: There are situations in which you use other tools and interpretations, statutory structure, history, precedent, you use all of those tools to get the answer that binds the parties and in no instance is your own view about what the policy should be enter into the inquiry.
▶ 1:12:36Sen. Blackburn: Thank you. I yelled back.
▶ 1:12:40Sen. Hawley: Senator whitehouse?
▶ 1:12:43Sen. Whitehouse: Welcome. We are here in the senate judiciary committee in interesting times. Given the food fight that has erupted in the far right between what I would call the leonard leo big polluter faction of the court capture efforts and the
▶ 1:13:16Sen. Whitehouse: Trump maga election denial faction of the far-right. It'll be interesting to watch as different candidates come forward, whether they look more like leonard leo, big polluter faction or whether they look more like maga election denial sorts.
▶ 1:13:45Sen. Whitehouse: Clearly when you have a president blowing up leonard leo as somebody who hates america, something is going on. What we do know is probably $600 million was spent in the dark money court capture scheme that has been operating for well over a decade, well over two decades and this country and that still
▶ 1:14:17Sen. Whitehouse: Funds front groups that come before the supreme court on a regular basis, in little orchestrated flotilla's to give the justices the messages as to what it is the big donors behind that whole enterprise want.
▶ 1:14:36Sen. Whitehouse: It may be that what president is beginning to notice is that the justices he put on the supreme court are actually more responsive to the leo polluter operation than they are to trump and his maga allies.
▶ 1:15:00Sen. Whitehouse: If you look at the record the fossil fuel industry essentially wins every time something important to them gets before the supreme court. Trump is not winning every time. It may have come to his notice there is a difference between who is winning all the time and who is not.
▶ 1:15:24Sen. Whitehouse: There is every reason to believe that during trump I, leonard leo and don mcgahn who was his white house legal counsel were actually operating for the benefit of the koch brothers and the big polluters, that side of the operation and that is where the loyalty and the policy fell.
▶ 1:15:52Sen. Whitehouse: There does not seem to be any doubt any longer that this was a political operation. Just recently the wall street journal which has long been the mouth street of the leo polluter side of this current squabble published an interview claiming those judges have achieved goals for the conservative movement that have been on the agenda since the 1970's.
▶ 1:16:20Sen. Whitehouse: They are trying to make trump happy with the decisions he made and to reassure him this is a really big trump achievement, whereas trump and some of his allies are starting to recognize maybe this was not such a trump achievement after all. Maybe he is the one who got played in this game.
▶ 1:16:42Sen. Whitehouse: Maybe all of those front groups appearing before the supreme court in those flotilla was and are getting those wins are reporting to somebody else than trump and trump world. This is a very interesting time. You are affiliated with the tenio group which is a leonard leo group.
▶ 1:17:13Sen. Whitehouse: In a recent hearing that my colleague just referred to about the newly discovered shop that their national injunctions going on publican witnesses one set in the chair paid for by leonard leo and the trust operation he ran, a billion-dollar slush fund from a billionaire.
▶ 1:17:42Sen. Whitehouse: The other one would not answer where his chair money came from. It got laundered through donors trust, the atm of the far-right and he would not answer whether he knew or not where the money for his chair was coming from. My default proposition is if he will not say it is probably also leonard leo and the marble trust operation.
▶ 1:18:05Sen. Whitehouse: Even in our hearings right here we have this potent internal food fight between the leo polluter faction and the maga election denial faction and I wanted to take my time and point this out because I think it is highly revelatory about what has been done to the judicial branch of government by the far-right. Thank you chairman.
▶ 1:18:29Sen. Hawley: Senator schmitt.
▶ 1:18:33Sen. Schmitt: I want to say a brief word on the judicial nomination success that happened in the last week that we lead in this committee, kicking the woke failed american bar association out of its privileged spot in the judicial selection process. In march I sent a letter along with four other members of this committee informing the american bar association we would no longer consider aba recommendations on cohen -- on pending recognition for nominees , crippling the role in the judicial nomination process.
▶ 1:19:06Sen. Schmitt: Last friday attorney general pam bondi join our cause, telling the aba it will be treated no differently than any other leftist activist group. I invite the rest of my colleagues to join this important cause. The aba is an ideological captured institution and it has failed in its core mission.
▶ 1:19:25Sen. Schmitt: All the aba stays silent during the weaponization of our justice system under merrick garland and joe biden, the aba now has something to say on nearly every policy position by the trump administration. Beyond that, the aba has embraced cultural marxism by forcing its dei and work initiatives on law schools across the country.
▶ 1:19:48Sen. Schmitt: When we look at these videos from law school graduations we see activists, not lawyers, not future jurists, not people who can keep our streets safe. This is downstream from the disastrous policies put in place by the american bar association. The american bar association is also biased in its judicial selection process against republican presidents nominees. It is high time for us to completely sever our link once and for all.
▶ 1:20:16Sen. Schmitt: This committee should treat the aba no differently than any other leftist activist group in our internal process for future legislative recommendations and I applaud attorney general pam bondi for taking this pivotal step at doj. This is hermandorfer, I see that you are a member of the aba and law school. We all make youthful indiscretions. I will not hold that against you.
▶ 1:20:47Sen. Schmitt: I've seen a lot of resumes and is very impressive. I think the breath in the range of your experience, who you've had a chance to work with, who you had a chance to be mentored by, now in your role playing a similar role in mentoring lawyers and taking up important causes in tennessee, that experience spans from administrative law and free speech cases that would often come before the supreme court.
▶ 1:21:18Sen. Schmitt: It is important to point out that in many ways that breadth of experience can compare it very well to someone with perhaps more narrow focus for a longer time. In that experience how do you think you bring that position to everyone.
▶ 1:21:44Ms. Hermandorfer: The miliary with the subject matter. The bread-and-butter of the court of appeals or statutory interpretation, incorporating other texts, applying constitutional rules, I've had the opportunity to immerse myself in that at the highest level for the past number of years.
▶ 1:22:03Ms. Hermandorfer: I think familiarity with the subject matter allows you to come in with confidence and carry out your article three role in deciding what the case is -- what the cases require holding. Being able to jump in is especially important given that many of these cases do proceed on an expedited timeline. I have litigated emergency cases in the sixth circuit and you are often under the gun.
▶ 1:22:34Ms. Hermandorfer: I practice has been very fast-paced. Preliminary injunction motions, emergency appeals. That pace and complexity combined will suit me well to make an impact and help the court discharge its duties.
▶ 1:22:50Sen. Schmitt: Given the uniqueness of your background at the number of justices on this agreement court you've had a chance to work with, what experience specifically would you say you have drawn from any one of them as far as decision-making or temperament?
▶ 1:23:05Ms. Hermandorfer: I think humility is one thing that comes to mind. It is an extraordinary power, the article iii power decide cases and controversies and settle parties rights. The most important cases to the parties and the country.
▶ 1:23:27Ms. Hermandorfer: With that power comes great responsibility and humility to understand the proper role of a judge is to interpret the law and not make the law or band the law to whatever policy preferences the judge might have individually. The justices and judges for whom I have clerked are models of that.
▶ 1:23:44Sen. Schmitt: Thank you.
▶ 1:23:46Sen. Hawley: Senator klobuchar?
▶ 1:23:51Sen. Klobuchar: Thank you very much. Donald trump has said "I have the right to do whatever I want as president." you fired a brief supporting his ability to fire inspector general and in another brief you supported his ability to undermine congress's ability to create independent agencies, writing humphrey's branch busting reasoning was wrong the day it was rendered.
▶ 1:24:19Sen. Klobuchar: What is your view of congresses constitutional authority to enact laws and create checks on executive power?
▶ 1:24:24Ms. Hermandorfer: I was an advocate representing a client in all of those briefs. My current understanding of the supreme court precedent with regards to the president removal power is that when it comes to principal officers -- that would include heads of independent agencies -- if that individual is exercising sing of get executive authority that officer must be removed by the president
▶ 1:24:55Ms. Hermandorfer: No matter the size or role of the agency. In those cases you mentioned the supreme court recently handed down in order staying the district court decision and indicating that with respect to the mspb at the president likely have the constitutional authority to remove those principal officers.
▶ 1:25:15Sen. Klobuchar: And inspector general's, you believe the same principle applies?
▶ 1:25:20Ms. Hermandorfer: There are cases discussing inferior officers. There is a dispute on how you characterize inspectors general. If they are characterized as principal officers then under the reasoning of the supreme court there would be reason to think that the supreme court's role in the law might govern. There are separate lines of authority for certain inferior officers.
▶ 1:25:48Ms. Hermandorfer: I stand by the positions in the brief and would not want to otherwise prejudge the merits of any controversy that could come before me as a judge.
▶ 1:25:56Sen. Klobuchar: Let's go back to your work in the tennessee attorney general's office where you defended the states near total ban on abortion which does not provide any exceptions for rape and insets. The law also contained an error medical necessity exemption -- the law also contained a medical necessity exemption.
▶ 1:26:19Sen. Klobuchar: Is it not clear the record was replete with abortion care being denied in life-threatening situations despite the state conceding -- now I am talking -- that the medical necessity exception live entitle them to pair under tennessee's medical necessity exemption.
▶ 1:26:36Ms. Hermandorfer: The decision of the three-judge panel at the preliminary phase was that the law should be interpreted to require and allow certain abortions provided in serious medical situations. Those included the ones laid out in the order. Things like premature, pre-viable, rupture of the membranes, insufficient cervix.
▶ 1:27:02Ms. Hermandorfer: What the state had argued was the statute tennessee adopted used the same language that was used and approved by the supreme court in the casey planned parenthood decision. It was always the state's decision that the language allowed abortion care in those serious scenarios and that is what the court held as a temporary injunction matter.
▶ 1:27:28Sen. Klobuchar: I met one of the plaintiffs, rebecca milner, she had suffered preterm free ruptured membranes. Her baby was unlikely to survive in continuing the pregnancy put rebecca at risk of life-threatening infection. Because of the law her tennessee doctor denied her the abortion care she needed. As a result she traveled to virginia.
▶ 1:27:52Sen. Klobuchar: She developed an infection or doctors say resulted in the delay in care and required emergency treatment for sepsis. Given your argument the court should uphold that law, what would you say to litigants who question you can be evenhanded in applying the law including two women trying to vindicate their rights?
▶ 1:28:12Ms. Hermandorfer: What I would say is you can read the brief and read the positions that tennessee took in that case and that I represented on behalf of my clients and that was -- there were many serious medical scenarios in which abortion under the text of the law would and should be permitted.
▶ 1:28:32Ms. Hermandorfer: I would say we were carrying out the will of tennessee to have that type of exemption, but at the same time to vindicate a constitutional state amendment that makes clear there is no otherwise nonmedical right to an abortion under state law.
▶ 1:28:50Sen. Klobuchar: One last question. Stephen miller has said publicly the white house is actively looking at suspending the writ of habeas corpus and "a lot of it depends on whether the courts to the right thing or not." conservative law professor jonathan adler said the white house can look at the question all at once but it is ultimately up to congress whether the writ should be suspended. You agree that only congress can suspend the right to habeas corpus?
▶ 1:29:20Ms. Hermandorfer: As you mentioned, that is an issue under active consideration by the political branches and could very well come before me if I were confirmed as a judge. Conference as a judicial nominee it would not be appropriate for me to pass on the validity of any such arguments.
▶ 1:29:38Sen. Hawley: Senator lee?
▶ 1:29:41Sen. Lee: Thank you, Mr. chairman. Thank you, Ms. hermandorfer for being willing to be considered for this position. I want to respond to a couple of assertions that have been made. Some involving the american bar association and some involving the federalist society, an organization I've clung to for the better part of the last 30 years. The federalist society is not an advocacy group.
▶ 1:30:10Sen. Lee: It is regarded by many as a conservative group and that is fair because a lot of its members happen to be conservative. It's events, unlike most american law school classrooms, are open to people of all viewpoints.
▶ 1:30:27Sen. Lee: The panel discussions that it sponsors routinely have multiple views represented, differentiating it from other organizations including aba accredited law schools and aba discussions themselves. The american bar association is about as nonpartisan or evenhanded as the democratic national committee. The fact that the aba had an official role is stunning and alarming.
▶ 1:30:59Sen. Lee: The fact that it no longer plays an official role is appropriate. It was never appropriate in my view, particular once the aba decided to be a leftist organization, to be the lawyers wing of the democratic national committee made this inappropriate. If you want to attack the federalist society, look no further than the fact that the aba is itself an advocacy organization. The federalist society is not. So what?
▶ 1:31:26Sen. Lee: It provides an open forum for discussion among lawyers and law students, an open forum in which multiple viewpoints are welcome. It is not an advocacy organization quite unlike the american bar association. Ms. hermandorfer, you have accumulated an impressive array of clerkships. It seems greedy you have clerked for three members of the current supreme court.
▶ 1:31:53Sen. Lee: During that time you've had the opportunity while clerking for no more than four federal judges/justices to observe the role of the judiciary. How would you summarize your judicial philosophy?
▶ 1:32:05Ms. Hermandorfer: My judicial philosophy is the law is to be interpreted by the judge and not made by the judge. What I mean by that is there is new issues resolved in rulings made but the judge is not supposed to in the words of alexander hamilton "substitute his or her passion or policy preference for the will of the people." it is the will of the people
▶ 1:32:35Ms. Hermandorfer: That gives all of our laws of validity because that is the consent of the governed. There are times the judge needs to issue counter majoritarian rulings and protect rights against the majority. With that comes the responsibility to issue appropriate orders and divide limits on judicial power.
▶ 1:32:58Sen. Lee: In the same issue of the federalist papers hamilton differentiated between will and judgment. In a sentence or two, what is your understanding of the difference between will and judgment and how you tell them apart as a charge?
▶ 1:33:13Ms. Hermandorfer: Judgment as a judges applying the laws neutrally to reach an outcome supported by the law. Will is superimposing the judge's own policy preferences against what the law would require in ruling that way in a case.
▶ 1:33:29Sen. Lee: When interpreting the text of a federal statute, which will often be your role as a judge of the sixth circuit and you have to decide what it means , how best would you describe how to go about it? Subjective intent on the part of congress, subjective intent on the part of the sponsor or the committee staffer who happened to write this or that report? Is it the original public meeting? How do you go about it?
▶ 1:33:56Ms. Hermandorfer: The constitution prescribes the appropriate way to make federal law, that is bicameralism. The will of the internal decision-making process or intention --
▶ 1:34:10Sen. Lee: I am so happy to hear you bring up article one section seven, one of the most overlooked parts of the constitution, one of the most important and often overlooked. What happens when we neglect the twin obligations, the twin prerequisites of federal law making? All federal law making, bicameralism. What does that do?
▶ 1:34:34Ms. Hermandorfer: From a state's perspective, part of the grand compromise was having states with proportional representation in the senate could serve as a veto for any federal legislation moving through. When you bypass that process and issue federal rules that are not reflected democratic branches, bicameralism and presentment, you have a situation where people and states are cut out of the political process and subjected to rules they do not have accountability for.
▶ 1:35:02Sen. Moreno: I will wrap up --
▶ 1:35:05Sen. Lee: I will wrap up now, if I can just finish this thought. I believe most of the problems in the federal government, most of the contention, most of the discord, most of our national debt, all emanates from a deviation from the constitutions twin structural protections, the vertical protection called federalism the horizontal protection called separate humps of powers.
▶ 1:35:31Sen. Lee: Our deviation from this concept of bicameralism and presentment -- we now have 100,000 pages of new log made each year by unelected bureaucrats accountable to no one. Imposing legal obligations that if you do not obey them we will find you, will shut down your business, we can send you to prison, all without the assent of either house of congress, much less both and without presentment to the president.
▶ 1:36:01Sen. Lee: This is wrong and this is why you and others who have litigated some of these issues are right to point out the problem with so-called independent agencies. They lack under the constitution any proper role in the lawmaking process that bypasses article one section seven. Thank you.
▶ 1:36:18Sen. Hawley: Senator coons.
▶ 1:36:22Sen. Coons: Thank you for your service in the tennessee attorney general's office and thank you to you and your family for nomination. I am not a reflexive no vote on nominees of president of the other party. I supported president trump's judicial nominees in his first term when they had the experience for the job and the independence to carry out the role of the judge, particularly the circuit judge with integrity. I am concerned about the striking brevity of your professional record.
▶ 1:36:54Sen. Coons: You graduated from law school just a decade ago and you spent four years with impressive clerkships but often nominees for positions such as the circuit have real experience in court. Have you ever served as the sole or chief counsel in any case?
▶ 1:37:12Ms. Hermandorfer: Not to a jury verdict.
▶ 1:37:15Sen. Coons: Have you served as the chief counsel in any case tied to a final judgment?
▶ 1:37:19Ms. Hermandorfer: I have served as chief counsel in many final judgment cases in trial court. If you mean a bench trial would be no final judgment yes.
▶ 1:37:32Sen. Coons: How may direct examinations have you taken in front of a court?
▶ 1:37:36Ms. Hermandorfer: As an appellate lawyer I do not usually take direct examinations and the answer is europe.
▶ 1:37:42Sen. Coons: How may cross examinations have you taken?
▶ 1:37:45Ms. Hermandorfer: Nine.
▶ 1:37:48Sen. Coons: As an appellate lawyer that is not part of my practice.
▶ 1:37:53Sen. Coons: How many depositions have you defended? How many appellate oracle arguments have you presented?
▶ 1:37:59Ms. Hermandorfer: Federal appellate oral arguments, that would be four.
▶ 1:38:04Sen. Coons: How many supreme court arguments have you presented?
▶ 1:38:07Ms. Hermandorfer: None but I've been second chair and counsel of record in supreme court matters.
▶ 1:38:12Sen. Coons: I've pointed out that the jurist you nominated to replace had 31 years of legal experience under her belt when nominated to this position in the sixth circle -- in the sixth circuit. The aba has long had a standard that without more than a dozen years in federal service they would deem someone unqualified for a position such as when you've been nominated for. Let me move to a different issue.
▶ 1:38:41Sen. Coons: The federal rules of procedure sets out the rules of the roads, including whether a party moving must post a security bond. What factors should an appellate judge consider when ruling on a challenge to a security bond set or non-said by a district court for issuing a tro?
▶ 1:39:02Ms. Hermandorfer: This comes up sometimes when the state is the litigant and often times parties can move to waive the security bond and what a court is looking to as the gravity of harm to the potential appellate should -- the disposition in the district court should be allowed to move forward.
▶ 1:39:25Ms. Hermandorfer: It is similar to equitable considerations of harm and the gravity of that harm and whether it would be reparable or comprehensible on the other end.
▶ 1:39:37Sen. Coons: And what sort of cases is it typical to require a security bond?
▶ 1:39:45Sen. Coons: -- Ms. hermandorfer: cases in which there will be financial exposure on behalf of an appellate could be subject cased where bond by be posted.
▶ 1:39:55Sen. Coons: A contract case or case involving infringement of a patent or something like that. Does your analysis change of the matter is a constitutional case brought by a private plaintiff against allegedly unconstitutional actions of the federal government?
▶ 1:40:11Ms. Hermandorfer: I would have to take each constitutional violation in ruling on its own terms and I would not want to prejudge. The equitable factors would be the ones I would apply in such a situation.
▶ 1:40:25Sen. Coons: How would you set a bond for something as foundational as a violation of the constitutional?
▶ 1:40:32Ms. Hermandorfer: I'm not sure I can answer that in the abstract.
▶ 1:40:36Sen. Coons: What tools does the sixth circuit or any circuit have to enforce its judgments? If you were confirmed and a party disobeys an order of the sixth circuit, perhaps even when he wrote, what would you do -- perhaps even one you wrote, what would you do?
▶ 1:40:54Ms. Hermandorfer: There are mechanisms by which judgments are entered and executed through federal district courts.
▶ 1:41:01Sen. Coons: What are those mechanisms?
▶ 1:41:04Ms. Hermandorfer: The federal district court can issue contempt rulings that are appealable and if you are talking about warrants or orders of those sorts I know the U.S. marshals office has some sort of involvement. I confess, this has not been part of something I have litigated.
▶ 1:41:26Sen. Coons: When would you feel you had met the standard to call in the marshals to execute?
▶ 1:41:31Ms. Hermandorfer: It is difficult to answer that question in the abstract. I could tell you as a party I have followed the appellate process whenever I felt as though a judgment had gone the wrong way against me and I have secured appellate relief in those situations.
▶ 1:41:48Sen. Coons: What would you do if U.S. marshals were to refuse to execute the judgment of the circuit court if they were instructed by the doj to stand down and refuse to implement an order of the court?
▶ 1:42:02Ms. Hermandorfer: That would -- as a junior appellate judge on my court -- that would be something I would look to my colleagues and whatever governing rules and president's would govern that situate -- and precedents would govern that situation but as a hypothetical --
▶ 1:42:22Sen. Coons: I hope this is an abstract and hypothetical matter but it occupies quite a few of us and quite a bit of our discussion on this committee as we come up against the question of whether we have a president willing to disobey orders of federal courts. Thank you for your testimony.
▶ 1:42:38Sen. Hawley: Senator moody. The me ask you before hand to make sure I am clear, my colleague was asking about the number of cases you have tried to a jury and cross examinations before a jury and direct examinations performed before a jury. What court are you being nominated to?
▶ 1:42:57Ms. Hermandorfer: The sixth circuit court of appeals.
▶ 1:43:00Sen. Coons: You have any -- Sen.
▶ 1:43:03Hawley: Do you have any appellate experience?
▶ 1:43:05Ms. Hermandorfer: I have litigated over 100 appellate cases.
▶ 1:43:09Sen. Hawley: How many circuits have you argued or litigated in front of?
▶ 1:43:13Ms. Hermandorfer: I have argued in front of nine circuits and the supreme court.
▶ 1:43:17Sen. Hawley: Litigated nine circuits in the supreme court over 100 appellate cases. That some truck -- that sounds like quite a bit of experience to meet. Senator moody?
▶ 1:43:31Sen. Moody: Thank you for running such an efficient hearing as our chairperson. I appreciate your prior service to your state in your country. Thank you for being here and standing willing to answer tough questions. I will note there has been a lot of attention brought to the apa and whether or not every senator on the judiciary -- every senator with a vote considers or should consider recommendations.
▶ 1:44:02Sen. Moody: If that were important to the apa over the many years people have been pointing out their perceived more and more as a partisan group you would think they would stop doing things like awarding a progressive prosecutor who ultimately said they would not prosecute laws they do not agree with politically and that a governor had to remove from office after they were removed from office, giving them an aba award would seem to be inappropriate.
▶ 1:44:34Sen. Moody: I think that organizations should probably take to heart everything that has been said today because that is the kind of thing they are still doing. If they want to be credible by the united states senate in determining who would make good judges, maybe when a judge is removed for saying they would not enforce or follow laws they do not agree with -- a prosecutor was removed because they were not enforce laws they do not agree with that is something that would undercut the credibility of the aba.
▶ 1:45:11Sen. Moody: You've gotten questions about your lack of experience in the trial court. Some of that may be you are serving over a decade as a lawyer and now you're going onto a very important appellate position. I think you will be a great appellate judge. I am overwhelmed and impressed by your background. I wonder if the president says her and your role had clerked first -- I wonder if you predecessor in your role had clerked for three supreme court judges?
▶ 1:45:41Sen. Moody: I was a young judge. I served over a decade before I became the attorney general and united states senator. To some extent that can bring a quality and tenacity to cases and deliver expediency in a judicial system for the american people that is much needed. In your opinion, how important is efficiency of a docket to being a good judge?
▶ 1:46:07Ms. Hermandorfer: As the party is seeking relief from courts, efficiency of the docket goes to the heart of the fairness and integrity of our judicial system because everyone has heard the same justice delayed is justice denied. That is where my recent years of practice -- there been weeks where I file supreme court -- there was a day I filed a brief and a summary judgment on the same day.
▶ 1:46:37Ms. Hermandorfer: That is how fast our cases move in the volume of that and the pace of that is something that would suit me well to do my best to hit the ground running and contribute to my colleagues to the best of my abilities.
▶ 1:46:48Sen. Moody: Now more than ever at this moment in time we have a president in office that is desperately trying to clean up a lot of mess that was created and I believe I was fighting against , a lot of unlawful policies from the last administration and in doing so is having to make really hard decisions at a fast pace as an executive to deliver safety and security for the american people. That is a fact.
▶ 1:47:19Sen. Moody: What we are seeing every day or nationwide injunctions, and other stay, another order that is stymieing this executive from doing his job. That is causing a lot of concern from the american public who want to feel -- you want to feel safe and have -- the american public who wants to feel safe and have some sort of order. Whoever becomes a judge will have critical matters and issues come before them dealing with the separation of powers.
▶ 1:47:54Sen. Moody: It is so important we have judges that understand that and can on it quickly so that an executive's hands are not tied for four years they cannot do what they are promised to do for the american people when it is in the law to do so. In your experience what have you done to fight for the separation of powers?
▶ 1:48:22Sen. Moody: We are more and more into what feels like a separation of parties which is undermining the stability of the constitutional government instead of a separation of powers and what are the cases you can highlight where as an attorney you fought for the respective separation of powers?
▶ 1:48:37Ms. Hermandorfer: I have litigated dozens of cases involving the attempt by the federal government to through rulemaking impose a rule on two states and on to state citizens that do not ever go through congress. That includes the title ix case. That includes cases like our challenge to the section 1557 rule.
▶ 1:49:06Ms. Hermandorfer: Both of those involved gender identity-based rules being applied to states through the executive branch and not through congress. Other cases, many other such cases our office has litigated and all of those cases reflect the importance of our dual sovereign system and the importance of allowing states to govern themselves through their political processes absent proper lawmaking by the federal branches.
▶ 1:49:33Sen. Moody: Thank you sera -- thank you so much. Chairman hawley, iou a minute.
▶ 1:49:40Sen. Hawley: I would like to enter you -- I would like to enter in a record a letter from 18 appellate attorneys all inducing -- all endorsing Ms. hermandorfer, talking about her record. "Ms. hermandorfer has an outstanding legal mind, a collegial manner, in an extraordinary record of academic and legal achievement. Based on our experience with Ms.
▶ 1:50:11Sen. Hawley: Hermandorfer and her distinguished career we are confident she possesses the character, temperament, and intellect to make her an asset to our nations judiciary." without objection I will enter that into the record. Senator welch?
▶ 1:50:26Sen. Welch: You are hearing a rear divide in the country and between the parties about what is happening in the justice system. I happen to think the aba is an excellent organization. I'm disappointed the president is prohibiting the aba from being involved. There is a different point of view on the so-called weaponization of what has happened in the justice department.
▶ 1:50:53Sen. Welch: One of the elements that is emerging now is an incredible amount of criticism from the executive branch to judges who make decisions that the executive disagrees with. For instance president trump referring to some judge has said "U.S.
▶ 1:51:12Sen. Welch: Hating judges who sever from an ideology that is sick." there was a reference by the president to judges who are "monsters" and want our country to go to hell. I don't think that is helpful. You have had judges rule in your favor. You have had judges rule against you.
▶ 1:51:36Sen. Welch: Is it your view that when judges have ruled against you that it is anything other than the exercise of their responsibility to decide the cases as they see it or is it motivated by political ideology?
▶ 1:51:51Ms. Hermandorfer: Your question touches on foundational aspects of our system. There is obviously -- we are a country that values political dialogue very much. At the same time there are limits on violence, limits on criminal threats, things like that.
▶ 1:52:18Ms. Hermandorfer: I do not want anything I say as a nominee to be seen as passing judgment.
▶ 1:52:25Sen. Welch: You have been a litigant. You have had cases decided for you and against you. In either case do you accuse the judges of having political motivation when the judge decides against you?
▶ 1:52:39Ms. Hermandorfer: When a judge decides against me I file an appeal and litigate the appeal. I have been a public official subject criticism and all I can say is it is part of the job and you do your duties.
▶ 1:52:57Sen. Welch: You think it is proper for litigants to be using that kind of language when they disagree with the decision a court has made?
▶ 1:53:04Ms. Hermandorfer: As a nominee I do not want to give a thumbs-up or thumbs down to any category of statements.
▶ 1:53:11Sen. Welch: You signed a letter in your personal capacity in support of the attorney general. In that letter there was a reference to "a dark chapter of the united states justice department." what specifically were you referring to when you sign the letter that had that phrase in it?
▶ 1:53:37Ms. Hermandorfer: That letter was on behalf of members -- female members of the state attorney general's offices.
▶ 1:53:47Sen. Welch: I know who it was on behalf of. The letter specifically said you are you referring to "a dark chapter of the united states justice department." explain what that dark chapter was specifically and what you had in mind?
▶ 1:54:04Ms. Hermandorfer: I spent the past two years litigating against rules including title ix and others that we did not feel as an office and as my clients reflected the proper meaning of the law and indeed dismissed many well-meaning deeply held concerns on the part of many women and others.
▶ 1:54:30Ms. Hermandorfer: Where I was coming from in signing that letter was in my experience litigating and often prevailing in those issues that we thought involved federal overreach by the department.
▶ 1:54:41Sen. Welch: Here is the issue for me that I think is getting so difficult for the courts. Citizens can have different points of view and they do not have to attribute that difference to some radical anti-woman agenda or referring to the justice department as a dark chapter in the united states justice department. This is a big country and people have different points of view. Everone is free to advocate what it is they want to advocate for.
▶ 1:55:09Sen. Welch: Now it is custom that if the decision goes against you you have a president who starts talking about monsters who want to take our country to hell. I cannot ask you to answer that.
▶ 1:55:25Sen. Welch: Assuming you are confirmed you will be -- you will have a responsibility for helping create a culture within the judicial system that hopefully restores respect and that means respect for people with whom one disagrees. Thank you.
▶ 1:55:45Sen. Hawley: Let me stay with this question about the title ix litigation that senator welch was just asking you about. Tell us about the title ix litigation you carried on on behalf of the state of tennessee?
▶ 1:55:58Ms. Hermandorfer: In april 2024 the department of education issued a final rule interpreting title ix, which of course bars discrimination on the basis of sex in any federal funded educational program, interpreting that language to bar discrimination on the basis of gender identity and other "sex-based characteristics." as part of that rule, which again was a role, it did not go
▶ 1:56:30Ms. Hermandorfer: Through congress, the department of education informed all federally funded educational institutions from pre-k through college that sex separated spaces like locker rooms and bathrooms must instead be assigned by gender identity and not sex, and in similar ways sex separated programs like intramural sports and others fell in ambit of that rule.
▶ 1:56:59Sen. Hawley: What you are saying is the biden administration used in administrative process to interpret a law, a landmark law passed by congress, to interpreted to require your state and indeed every state to allow men -- biological men and women's locker rooms. To allow biological men and women sports. To allow men into any space the biological woman might otherwise claim under the ambit of title ix.
▶ 1:57:30Sen. Hawley: Is that correct?
▶ 1:57:31Ms. Hermandorfer: That is correct.
▶ 1:57:33Sen. Hawley: You litigated on behalf of your state to preserve title ix. Would you say title ix is landmark piece of legislation?
▶ 1:57:41Ms. Hermandorfer: Absolutely.
▶ 1:57:43Sen. Hawley: Would you say title ix took decades to achieve. Would you say title ix is a cornerstone of women sports and the ability for women to have the same opportunities as men at the collegiate level and every level to have sports opportunities, athletic opportunities, leadership opportunities. Is this an important statute?
▶ 1:58:02Ms. Hermandorfer: It is in for a former athlete it hits close to home.
▶ 1:58:07Sen. Hawley: You have lived it. When the biden administration issued a rule, not a law passed by congress, a rule that would've completely change the meeting of title ix, would you say that is a pro-woman agenda?
▶ 1:58:21Ms. Hermandorfer: We argued the consideration of women were not adequately accounted for in the rulemaking process and virtually every court to consider that rule, almost a dozen, agreed with the position tennessee advanced.
▶ 1:58:34Sen. Hawley: Every court virtually to consider the litigation agreed with your position. Is that correct?
▶ 1:58:41Ms. Hermandorfer: Including the supreme court in a stay application.
▶ 1:58:45Sen. Hawley: Including the supreme court of the united states. Would you say it is fair to call the effort to undermine a landmark piece of legislation for women that you yourself benefited from, that fair and equal opportunity, would you say it is fair to call that a dark chapter in the history of this country?
▶ 1:59:03Ms. Hermandorfer: Certainly on behalf of tennesseans we thought that rule was unlawful and inappropriate and we were happy to succeed in the litigation.
▶ 1:59:15Sen. Hawley: I am happy succeeded in the litigation as the father of a four-year-old daughter I am delighted you succeeded. I want to thank you on behalf of her and my whole family. I want to thank you for going to battle for our daughters, for going to battle for the women you played sports with. For standing up for this landmark legislation and for fighting it. I want to say it was indeed a dark chapter.
▶ 1:59:42Sen. Hawley: The last four years have been a hellacious chapter in the department of justice. Those are not your words, those are mine. Whether we are talking about the assault on women's rights in the title ix context, the assault on religious believers. This is the department of justice the recruited informants into catholic parishes in this country. If that is not a dark chapter in this country's history I don't know what is.
▶ 2:00:08Sen. Hawley: This is a justice department that activated the counterterrorism division -- counterterrorism division against parents who went to school board meetings. If that is not a dark chapter I don't know what is. This is a government that collaborated with the biggest corporations in the world to censor speech they don't like and then lied about it. If that is not a dark chapter I don't know what is. I would go on to say it is the worst chapter in the history of the department of justice in the last four years.
▶ 2:00:39Sen. Hawley: Those are my views, not yours. When it comes to the litigation you carried out on behalf of the state of tennessee, I think you did a great service, not just to tennessee but to the nation and I want to thank you for it. Senator cruz?
▶ 2:00:56Sen. Cruz: Thank you, Mr. chairman, Ms. hermandorfer, congratulations. I am thrilled you're are seated here before the committee. You are the first appellate court nominee put forth by president trump in the new administration. It is symbolic that the seat you have been nominated to fill is the same one democrats tried to hand the nomination to a woman named carla campbell and the biden administration.
▶ 2:01:28Sen. Cruz: I am glad republicans on this committee stood firm and stopped Ms. campbell's confirmation. She had a deeply troubling record. She affiliated with an explicitly marxist organization that called for a working class revolution and abolishing both the police and ice.
▶ 2:01:51Sen. Cruz: She financially supported a radical far left candidate that said that republicans were "siding with the devil." she repeatedly misled this committee about her past. That contrast tells the story. The bite administration tried to place a radical marxist ideologue on the sixth circuit. A nomination republicans rightly stopped.
▶ 2:02:19Sen. Cruz: Now under president trump we are restoring judges who respect the constitution and the rule of law to the bench. Ms. hermandorfer, your academic record is impressive. You've clerked for three supreme court justices, judge kavanaugh, justice alito, justice barrett.
▶ 2:02:43Sen. Cruz: I would note the chairman clerked for one supreme court justice. Senator lee clerked for one supreme court justice and I clerked for one supreme court justice. I want to say I am pissed you clerked for three and I may have to filibuster your nomination because of it.
▶ 2:03:01Ms. Hermandorfer: I hope not.
▶ 2:03:04Sen. Cruz: Tell us what you learned clerking for those three jurists.
▶ 2:03:08Ms. Hermandorfer: I've taken so many lessons from those jurists. The role of the judge is to carefully listen to all parties and carefully deliberate with respect to all cases that come before him or her and to treat colleagues and litigants with respect and to understand that you can disagree about the law without being disagreeable.
▶ 2:03:35Ms. Hermandorfer: The most important lesson I learned is that in our system judges are intentionally insulated from political accountability precisely because they are going to issue rulings that some segments of the public may not agree with and that is not always a pleasant task.
▶ 2:03:57Ms. Hermandorfer: It is necessary to preserve our system and so to it is necessary that judges have backbone and courage in carrying out their obligations under article three. Those are attributes I witnessed and I would try to take with me to the best of my abilities were I fortunate enough to be confirmed.
▶ 2:04:20Sen. Cruz: You are also a star basketball player at my alma mater, princeton.
▶ 2:04:28Ms. Hermandorfer: Star might be strong.
▶ 2:04:31Sen. Cruz: You are captain of the team. Tell us what you learned about playing basketball at the collegiate level.
▶ 2:04:38Ms. Hermandorfer: My basketball journey started when I was very young and my parents drove me to every gym in tennessee so I could pursue my dreams of playing college sports. There is nothing like having to wake up early at 5:00 a.m. In the snow and go down to the weight room to instill self-discipline and grit. I have carried those lessons and work ethic with me and I've been knocked down many times on the court and off.
▶ 2:05:07Ms. Hermandorfer: I learned it is about how you care yourself and your attitude and your effort can get you through even when you are facing challenges. Lastly I would say playing basketball, I had the pleasure of getting to know girls from all walks of life, from all over the state and the country. Getting along with folks from different backgrounds who have different perspectives is something I have experience with and would also try to take with me.
▶ 2:05:36Sen. Cruz: Talk to us about the first amendment and the importance of the first amendment. Without sounding trite it is the first amendment for a reason. It protects the five main freedoms. The free exercise of religion, there is the establishment clause, the freedom of the press, freedom to petition the government when you want to change the loft. Freedom to assemble.
▶ 2:06:05Sen. Cruz: I cannot remember if I said four or five. The importance of that is in our system the people have the power to express their deeply held views and to try to make political change and it is not up to the government to stifle any views it deems heterodox or unorthodox. It is to protect the will of the people as they express it in their public.
▶ 2:06:37Sen. Kennedy: Senator schiff?
▶ 2:06:42Sen. Schiff: Welcome. I am sure you are aware that it was recently said by president trump "it was suggested I use the federalist society as a recommending source on judges. I did so but then realized they were under the thumb of a real sleaze bag named leonard leo, a bad person who in his own way probably hates america." you are a member of the federalist society, correct? For how many years?
▶ 2:07:12Ms. Hermandorfer: I believe I joined in law school. I believe I joined in moscow. -- I believe I joined in law school.
▶ 2:07:30Sen. Schiff: The federalist society does recommend judges to the administration.
▶ 2:07:35Ms. Hermandorfer: I have no involvement in that. I have seen reporting to suggest they have some involvement but I have no personal knowledge of that.
▶ 2:07:44Sen. Schiff: You think having been a member of the federalist society for a decade that they are under the thumb of a sleaze bag named leonard leo. Is that your view?
▶ 2:07:53Ms. Hermandorfer: In my perspective the federalist society has been a wonderful place to get together with many lawyers who are members and learned law and discuss issues. Aside from my own experience as a judicial nominee I do not think it is appropriate for me to comment on any public policy debate about the federalist society or the particular quotation you are referencing.
▶ 2:08:14Sen. Schiff: You know leonard leo?
▶ 2:08:17Ms. Hermandorfer: I have met him a few times at federalist society events but I would not say I know him well or that he knows me.
▶ 2:08:25Sen. Schiff: You concur with the president's assessment that he is a sleaze bag?
▶ 2:08:30Ms. Hermandorfer: That type of interpersonal or political dispute I do not think is appropriate for me to comment on as a judicial nominee given neither the president nor Mr. leo could come before me as party to a litigation.
▶ 2:08:53Sen. Schiff: How would you describe judge leon?
▶ 2:08:56Ms. Hermandorfer: When I worked for judge leon I had a wonderful experience. It was a very enjoyable year clerking for him.
▶ 2:09:10Sen. Schiff: Nt took is responsible seriously? And upheld the law and the constitution?
▶ 2:09:16Ms. Hermandorfer: We did our best to do so.
▶ 2:09:19Sen. Schiff: You are aware he ruled against the administration with respect to the presidents executive order?
▶ 2:09:27Ms. Hermandorfer: I am aware.
▶ 2:09:29Sen. Schiff: You agree with the decision that the order was unlawful?
▶ 2:09:37Ms. Hermandorfer: That is pending litigation and it would be inappropriate for me to express a view on litigation or active litigation.
▶ 2:09:45Sen. Schiff: The president has attacked the federalist society because the judges do not always do what the president wants. Is that the role of a judge or any other judge? That be your role to do with the president wants?
▶ 2:10:00Ms. Hermandorfer: That would not be my role. My role would be to carry out my oath which would be to the constitution first and foremost and any other laws that bind the rules of decision.
▶ 2:10:11Sen. Schiff: You are willing to will against the administration, against a donald trump's executive orders if you believe them to be unlawful?
▶ 2:10:19Ms. Hermandorfer: If that is what the law requires.
▶ 2:10:22Sen. Schiff: You are also an attorney at williams and conley. They represent perkins in the executive order case against that law firm, do they not.
▶ 2:10:32Ms. Hermandorfer: I am aware of that fact.
▶ 2:10:35Sen. Schiff: Is it important law firms be able to represent individuals or causes that are unpopular and are at times in disagreement with the administration?
▶ 2:10:44Ms. Hermandorfer: Certainly as a lawyer who represents a client that has views that people do not always agree with I think it is an important role of an attorney to take on matters no matter the political popularity.
▶ 2:10:58Sen. Schiff: You think it is appropriate for law firms to take on cases against the administration?
▶ 2:11:04Ms. Hermandorfer: I would not purport to limit any party in the representation that it would choose and I do not want to be seen as commenting on any of the active litigation involving these issues.
▶ 2:11:16Sen. Schiff: Would you agree it would be inappropriate for a president or administration to try to punish a law firm for taking on a client whose interest was adverse to the ministration?
▶ 2:11:27Ms. Hermandorfer: You are referencing the pending litigation. I have articulated why it is important for clients.
▶ 2:11:38Sen. Schiff: I am not referencing any particular case. I am asking for the president of the united states be able to retaliate against law firm that takes a case for a client whose interests is adverse to the administration?
▶ 2:11:51Ms. Hermandorfer: Embedded in the premise of that question is something referencing active litigation and I do not want to be seen as weighing in either way on whether that has occurred in any of these executive order cases. I stand by my answer it is the role of a lawyer to represent clients consistent with the bounds of the law and ethics and that is what I have tried to do.
▶ 2:12:11Sen. Schiff: Thank you, I yelled back.
▶ 2:12:15Sen. Kennedy: Tell me about the case.
▶ 2:12:21Ms. Hermandorfer: Lobar bright is the case that overruled the chevron doctrine. The chevron doctrine originally required that if there was an agency statute that governs an agency's conduct the agency gets deference, meaning a thumb on the scale when it is interpreting what that statute might mean as it is carrying out its duties.
▶ 2:12:44Ms. Hermandorfer: Lobar bright determined that framework was inconsistent with the ministry to procedures act and instead that moving forward courts should decide all of interpretation cases meeting the agency does not get any special head start.
▶ 2:13:02Sen. Kennedy: How much deference to the federal court have to give to an administrative agency under the chevron doctrine?
▶ 2:13:11Ms. Hermandorfer: The court would originally make a step one determination about whether the statute was ambiguous or not. That is in the eye of the beholder. If the court determine the statute was ambiguous in the relevant sense, meaning it did not resolve the question the agency was facing, it would defer to the agency's view of the meeting so long as the agency's interpretation was well explained and reasonable.
▶ 2:13:39Sen. Kennedy: What is the relationship, if any, between loper bright and west virginia vepa?
▶ 2:13:50Ms. Hermandorfer: That is a fascinating question. West virginia v. Epa applied chevron and said we are less likely to find ambiguity and congress needs to speak clearly if the agency is purporting to resolve the matter of political or social significance.
▶ 2:14:11Ms. Hermandorfer: Following loper bright there is no deference, and some have commented that the best way to think about west virginia versus epa in interpreting statutes is it informs the context of how we understand what the statutory terms mean in the context of an agency delegation. The fact that the agency is purporting to carry out its duties might resolve whether or not the particular question is sufficiently delegated by congress.
▶ 2:14:42Sen. Kennedy: That seems to me like a distinction without a difference. Doesn't loper bright wipe out the need for west virginia v e pa?
▶ 2:14:56Ms. Hermandorfer: True that west virginia verse epa was partially driven by non-delegation doctrine concerns and concerns about deferring to agencies when doing so threatened our separation of powers. After chevron has been overruled, that might be relevant in a smaller number of cases.
▶ 2:15:18Ms. Hermandorfer: I do think the major questions doctrine still has vitality in understanding the best meaning of the statute as loper bright now requires.
▶ 2:15:30Sen. Kennedy: What is the public rights doctrine?
▶ 2:15:33Ms. Hermandorfer: Most recently the public rights doctrine has been applied in the seventh amendment context and the supreme court has a decision where there is a line of precedent saying if they matter involves public rights, so conferring a public benefit, that might be the type of matter that congress can vest adjudication of in an article one tribunal or an administrative agency.
▶ 2:16:04Sen. Kennedy: What is a public right?
▶ 2:16:07Ms. Hermandorfer: That is a very difficult question to answer.
▶ 2:16:10Sen. Kennedy: That is why I am asking.
▶ 2:16:13Ms. Hermandorfer: The best way to think about it is to contrast it with private rights. Private rights are common-law type claims. Contracts, property, torts, the stuff of westminster in the courts terms. If you have a matter like that that is the type of matter that needs to go before a jury to ensure the seventh amendment jury projections are abided.
▶ 2:16:36Ms. Hermandorfer: By contrast if there is an internal administration process, social security benefits, that looks more like a public right that would not have existed but for the government granting it.
▶ 2:16:46Sen. Kennedy: What did the supreme court hold?
▶ 2:16:54Ms. Hermandorfer: The supreme court held that certain matters of the securities and exchanges commission actually looked more like common-law fraud claims and more like property based claims that must be tried --
▶ 2:17:23Sen. Hawley: Against my better judgment, I promised senator schiff, I promised him one more question. This capital will never come to me again if you ask more than one question. I hold you to it.
▶ 2:17:40Sen. Schiff: This is just in honor of mike le's birthday, his wish was I get an extra question. I wanted to follow up on one of your answers to senator durbin. He asked about the necessity of following court orders and very specifically in your answer you said if the supreme court rules, then you have to follow the order as it pertains to the parties in the case. I want to ask you about the lower court ruling.
▶ 2:18:09Sen. Schiff: You would agree that if a district court rules, pending appeal or pending any others stay, that the parties covered by that order need to abide by that order?
▶ 2:18:25Ms. Hermandorfer: The normal course if use -- if you disagree with the court order is to seek appellate review. My understanding is yesterday there was some testimony about particular cases and nuances of that debate that I think are active and obviously the interaction of article three and article two is an actively litigated matter. In the normal course the proper way to vindicate your rights is through the appellate process.
▶ 2:18:56Sen. Hawley: Thank you. Look at this. All order is dissolving. That is it.
▶ 2:19:06Sen. Kennedy: I want to be sure I understand. District court rules on the case. You have plaintiff or defendant -- and defendant. You are representing the plaintiff. Your plaintiff is very unhappy. Are there any circumstances under which you would advise the plaintiff to ignore the federal court order?
▶ 2:19:34Ms. Hermandorfer: As a judicial nominee I would be trying to issue proper orders.
▶ 2:19:39Sen. Kennedy: I don't want to split hairs.
▶ 2:19:42Ms. Hermandorfer: The normal process is to seek appellate review.
▶ 2:19:45Sen. Kennedy: Can you think of any circumstances when he would tell the plaintiff you do not pay attention?
▶ 2:19:52Ms. Hermandorfer: The problem with answering it that categorically is there are potentially some very extraordinary situations you could imagine that could come before me as a judge.
▶ 2:20:04Sen. Kennedy: Like what?
▶ 2:20:07Ms. Hermandorfer: This is a subject of tremendous scholarship.
▶ 2:20:11Sen. Hawley: . I promise you one. That was four. You see what you started, adam. Thank you for your testimony. You are excused. With that I will invite the four district court nominees to come forward to the witness table and we will take just a moment and we would minister the oath and begin the second panel.
▶ 2:21:33Sen. Hawley: It is the custom of this committee to administer the oath to all nominees who come before the committee. If you would raise your right hand and repeat after me, he swear that your testimony is the truth, the whole truth and nothing but the truth, so help you god. It is our normal process if you so desire to introduce any folks with you including your families and give a brief opening statement. We will start with Mr.
▶ 2:22:02Sen. Hawley: Bluestone and proceed down to judge stevens. As to bluestone, the floor is yours?
▶ 2:22:10Mr. Bluestone: I would like to thank by thanking the committee for holding this hearing. I am also grateful to the president for the honor of this nomination. Do you senator hawley and senator schmitt, thank you for the kind words in your introduction. Thank you for your support throughout this process and thank you for the trust you both placed in me as a deputy solicitor while serving as missouri attorney general.
▶ 2:22:40Mr. Bluestone: Over the last few months I've thought a lot about relationships and community. This process has reminded cal blessed I am with the people in my life. They are apsley the reason I am here today. -- they are absolutely the reason I am here today. Serving my community is the reason I want to be a better judge. I can think of no better use of my talents to make a meaningful impact on the lives of those around me.
▶ 2:23:06Mr. Bluestone: I regret not having time to recognize everyone here but I would like to highlight a few including four key mentors. Judge grunge or is a rare combination of brilliance and humility and a model I will strive to emulate if confirmed. I am also lucky to be joined by three lifelong friends, john, todd, and broth.
▶ 2:23:36Mr. Bluestone: I/o might code clerk daniel a huge debt of gratitude for his support. It means the world to me my brother alex and mother-in-law shannon have traveled so far to be here and there is no distance my mother -- that would've kept my mother from coming. It is a culmination of ensuring I had the educational opportunities my parents never did. I also have her to thank for my faith and commitment to family.
▶ 2:24:04Mr. Bluestone: My mom's partner john is here and I would like to honor him for his service to our country as a marine in vietnam and through his career with the fbi. My biggest supporters are behind me, my wife abby and my son exr me, my wife abby and my son exza who has been instructed to cry if I get any tough questions. I met abby when I was clerking and she has been a pillar of my life ever since.
▶ 2:24:30Mr. Bluestone: She has showed so much strength and devotion as a mother and I will never be able to repay her selflessness over the last few months, especially managing travel logistics with the baby despite having her own major oral argument in st. Louis yesterday. I would like to recognize my dad we lost to a battle with leukemia over 20 years ago -- almost 20 years ago. My dad's fearlessness and create in starting a business are something I will always admire, particularly after having helped run the company after his passing.
▶ 2:25:02Mr. Bluestone: My dad often had choice words for his lawyers after getting legal bills, but I know he is looking down today with pride. Thank you for giving me a few minutes to >> I want to thank senator holly and senator schmitt for the support you provided during this process.
▶ 2:25:29Mr. Bluestone: I want to thank president trump for giving me the honor of this nomination. I am joined in spirit and in person by too many to name but I will mention a few. Wonderful parents are here. So is my wife of 15 years. Elizabeth is pregnant with our seventh child. We have been truly blessed. The other six children are here as well. You have not heard from them because the younger two have been asleep the last two hours.
▶ 2:26:01Mr. Bluestone: 15 years as a husband and 13 years as a father has taught me much more than I've ever learned in school. Alice had open heart surgery when she was two months old. Grappling with the many challenges she has faced has taught us the virtues of patience, prayer and perspective. On a professional level, I am grateful to the attorney general of missouri.
▶ 2:26:28Mr. Bluestone: I knew I was being asked to fill big shoes. My predecessor was john sauer who is now the U.S. solicitor general. It has been a privilege to serve the people of missouri these past years. I am reminded of what justice ginsburg told this committee a few decades ago. What has become of me could have been only in america. My grandmother born into poverty overseas never had a day of education in her life. My dad was luckier.
▶ 2:26:58Mr. Bluestone: He missed several years of school. My grandmother pinched enough pennies to bring them here to america and when she was here, she learned english by watching soap operas. She made a living by cleaning homes and she did her best to navigate the anti-italian discrimination at the time. Today barely a generation later I said before this body having been given exploiting opportunities both professional and educational.
▶ 2:27:27Mr. Bluestone: The most extraordinary thing about my family stories is how ordinary it is. No other country provides so much opportunity to so many and that is one reason I have dedicated my career to a life in public service. My dedication to public service was reinforced a year ago when a life-threatening accident put me in the icu and left me unable to walk. For six months I was in a wheelchair. I am still recovering to this day.
▶ 2:27:54Mr. Bluestone: Those are the experiences that humble you and those are the experience that broaden your empathy to those trials and jubilation is that last not just a season but a lifetime. We come from different walks of life. The wall -- the law promises equality. The attorney general of alabama gave a speech rebuking segregationists of that states past.
▶ 2:28:19Mr. Bluestone: While lesser men have promised the constitution, attorney general bill pryor promised the opposite. Equal under law today, tomorrow and forever. If confirmed, that is how I will judge. I look forward to answering questions. >> thank you very much. Ms. lanahan.
▶ 2:28:47Ms. Lanahan: Thank you for your kind introductions and support. I want to start by thanking president trump for nominating me. Thank you to chairman grassley, ranking member durbin and all the members of this committee for the opportunity to address this committee today. I have many other people to thank. Thank you to my husband and best friend.
▶ 2:29:16Ms. Lanahan: Michael is responsible for introducing me to missouri which I have grown to love and have devoted my career to. My oldest son is also here. My other two children, a five-year-old and 1-year-old are not here because I was not sure it would be able to abide by senate decorum.
▶ 2:29:40Ms. Lanahan: I would like to think kevin and kathy lahanah -- lanahan for taking care of them. Thank you to my parents. My sister who is a newly minted american citizen, their children and mother-in-law.
▶ 2:30:06Ms. Lanahan: Thank you to my friend who is here and who is an adoptive and to my children in st. Louis. I would like to extend my thanks to the judge grounder who is here today with his wife and justice zara who was unable to make it today. These two judges have greatly impacted my understanding of what a judge's role should be.
▶ 2:30:28Ms. Lanahan: They are both committed to following the law as written imy following the law as written img legal disputes regardless of a party background characteristics. I also want to extend my thanks to missouri attorney general andrew bailey, former attorney general senator schmitt, first assistant attorney general jay atkins, my boss josh devine who is next to me and that many other colleagues who I have worked with to serve the people of the state of missouri.
▶ 2:31:01Ms. Lanahan: Finally, thank you to everyone else who has helped me and supported me along the way including my mentally -- my many family members, mentors and former colleagues. I am honored to be nominated for this position and if confirmed, I pledge to decide cases fairly and impartially according to the rule of law. Thank you. >> thank you. Judge stevens. George stevens --
▶ 2:31:37Mr. Stevens: I want to thank all of the members of the committee who are here today. Also senator holly, senator schmitt, thank you for your support and your kind words. I'm humbled. I want to thank my family. My wife is my rock. I want to thank her for her support over the years, for her sacrifice, for her grace throughout my career and at this time.
▶ 2:32:08Mr. Stevens: Also my children. Our oldest boy jack is here. Our son hank and our daughter mary rose. Mary rose expressed this morning that she really did not want to come because this is boring. But she is here. So far, so good. I also want to thank my parents who are here today.
▶ 2:32:33Mr. Stevens: I cannot begin to thank them for all they have done for myself and my siblings and all the way through till today. They have been a great example of great americans, great citizens who have raised their children, loved them and supported them. I would like to thank my law clerks. Clayton is here today.
▶ 2:33:02Mr. Stevens: He has agreed to continue with another year of serving me regardless of which court I happen to be on. I am glad he could make it. I want to remember one of the person who is not here today. My maternal grandfather, edmond w albright, who was a self-made lawyer in st. Louis who put himself through law school and took whatever case came in the door. As a young man he taught me to love the law and our profession. I think of him all the time.
▶ 2:33:30Mr. Stevens: Today I am wearing his watch which has kept time for me throughout my career. I have his portrait in my chambers back in st. Louis. I wish he could be here today for this moment. I would like to talk a little bit about my career to this point. I have the privilege of being a judge, a state judge of missouri missouri court of appeals eastern district. I was appointed that position in 2021 pursuant to the nonpartisan missouri court plan.
▶ 2:33:59Mr. Stevens: Before that I had the honor of serving his first assistant attorney general to then attorney general eric schmidt of missouri. It was a great privilege. A lot has gone on since our meeting at pjs. I am glad we met at pjs and not at cracker barrel. I understand that some met with staffers at cracker barrel. I love cracker barrel but pjs is the place.
▶ 2:34:25Mr. Stevens: Before that, I was impressed -- in private practice early in my career and in later years. What that means is I have handled civil cases, criminal cases, I have been in federal court and state court. Particularly with regard to the united states district court for the eastern district of missouri, as you acknowledged earlier, I was an assistant U.S. attorney there for 15 years.
▶ 2:34:52Mr. Stevens: I would get up from my desk on the 20th floor, go down a few floors to see the article three judges or the magistrate judges on at least a weekly basis. I can tell you that if this body deems fit, then my returning to the U.S. district court for the use during district of missouri -- for the eastern district of missouri would be like going home. Thank you for this hearing. I look forward to answering your questions.
▶ 2:35:19Sen. Hawley: We will start questioning. Mr. bluestone, you are currently violent crimes prosecutor in the united states attorney's office in the eastern district. Tell us a little bit about the work that you do, the kinds of cases that you prosecute and what you have learned from that experience.
▶ 2:35:40Mr. Bluestone: Thank you. Being in the usa in the eastern district of missouri has probably been the most fulfilling job committed to me by judge grinder. It was not something that was really on our radar. As both of my centers are aware of, there is a violent crime epidemic in st. Louis and surrounding areas. It has been gratifying to be able to do something about that.
▶ 2:36:10Mr. Bluestone: I prosecuted carjacking offenses, armed robberies, other gun crimes, drug crimes. I have been involved in white-collar investigations as well and is extremely rewarding. I appreciate the importance of his case that has come before the board and if confirmed, having seen probably north of 100 cases myself, it is incredibly significant to the
▶ 2:36:42Mr. Bluestone: Defendant will appear before me, the victims, their families and law enforcement. I take that very seriously now. I would also note that in addition to being a violent crimes prosecutor I served as our district appellate sheet. I handle my own cases but also responsible for overseeing every appeal civil and criminal that comes through our office.
▶ 2:37:04Sen. Hawley: Is it safe to say given your experience as a federal prosecutor the volume of cases you have seen that you know your way around a courtroom?
▶ 2:37:14Mr. Bluestone: I would like to think so.
▶ 2:37:14Sen. Hawley: We would like to think so too.
▶ 2:37:19Mr. Bluestone: I have supervised
▶ 2:37:19More Thanmr. Bluestone: 1000 cases and I've handled more than 100 of my own.
▶ 2:37:22Sen. Hawley: Fantastic. Mr. divine, if you had to ballpark it, how many cases would you say you have litigated just in your role as solicitor general? Were deputy solicitor general but leaving that aside, how many cases.
▶ 2:37:42Mr. Divine: It would be impossible to know. It is in the hundreds of cases I have supervised or litigated myself. As solicitor general I oversee the appeals for 200 attorneys in the office. We are getting a lot of appeals that we supervise on a daily basis. I also have a second job as the director of special litigation. I'm in charge in the unit, the trial unit that is tasked with taking some of the most complicated matters that the state of missouri is dealing with and taking the matters to court.
▶ 2:38:12Sen. Hawley: In these roles you have represented missouri in trial court and appellate courts and in the state supreme court and in the united states supreme court.
▶ 2:38:25Mr. Divine: That's right.
▶ 2:38:27Sen. Hawley: You have handled some of the most complex matters. Give us one example of a piece of complex litigation you have handled and what you have learned from it.
▶ 2:38:37Mr. Divine: I think the student loans cases that the office argued. We have had three of those cases over the previous administration. Those were very quick cases. The administration at the time was trying to cancel hundreds of millions of dollars in student loans. We felt that was unlawful. There was not any statutory basis for that. The court agreed with us in all of those cases. But it was a very quick moving thing and we needed to move quickly to ensure there was not permanent irreparable harm.
▶ 2:39:06Mr. Divine: One thing we did in one of those cases, we assumed before the rule had been published, which was a novel thing to do. We were able to come up with an interesting argument that ultimately prevailed in court. We showed there was irreparable harm. $200 billion was about to go after door -- out the door.
▶ 2:39:29Sen. Hawley: Your success record is hard to argue with. I mentioned what you have won in judgment for missouri which totals hundreds of millions.
▶ 2:39:39Mr. Divine: I think about $700 billion.
▶ 2:39:43Sen. Hawley: That's pretty good. Ms. lanahan, let me ask you to say a word about your career as the principal deputy solicitor known now for missouri. How many cases we can guess that you have handled in trial points will be courts -- trial courts and appellate courts?
▶ 2:40:03Ms. Lanahan: Upwards of 50 and I have been charged in many of the appeals in our office. I have overseen directly at least one fourth of the appeals will I'll review them before they are sent in and I have been doing that the last four years or so. We have a numerous appeals out of many groups. That is employment law.
▶ 2:40:25Ms. Lanahan: When you are doing an appeal, you are not only dealing with the trial court issues and whether or not the trial court got it right, but also the appellate issues which is another layer of separate issues on top.
▶ 2:40:35Sen. Hawley: Very good. I want to ask you a bunch of extremely difficult questions that would have been possible to answer baby leave that to senator schmitt.
▶ 2:40:52Sen. Durbin: Thank you very much. I feel like a kid from east st. Louis. I hope I can stand up for my side of the river at least to some extent. Ask a few questions. Mr. divine, you have referred to yourself as a zealot for the antichoice movement. You previously wrote, because we know that a unique human comes from fertilization, abortion should not be permitted. Let me ask you a couple of questions.
▶ 2:41:22Sen. Durbin: Do you believe that an ivf embryo is a person?
▶ 2:41:26Mr. Divine: Thank you. My answer to that question and any policy question or political question that might be asked of me will be the same exact answer that I know this committee has heard from hundreds of nominees before me. I cannot talk about political dispute. That is obviously a hotly litigated issue and hotly disputed issue right now so I cannot talk about those kinds of political dispute.
▶ 2:41:53Sen. Durbin: That's what I expected. Do you believe in vitro fertilization should not be ethically permitted?
▶ 2:42:01Mr. Divine: Can you tell me where the quote is coming from?
▶ 2:42:06Cap Sen. Durbin: I will try to find that.
▶ 2:42:10Mr. Divine: I don't know the context of what you are quoting right now.
▶ 2:42:17Sen. Durbin: We are looking for the source on that. Let's go to another question that all the members of this panel might address. I am not going to get into the point made by senator blackburn about one of our witnesses yesterday saying she had some equivocation on following court orders.
▶ 2:42:41Sen. Durbin: As been demonstrated by senator hawley this panel has extensive experience. Do you believe the executive branch should be allowed fine a court order -- should be allowed to defy a court order?
▶ 2:42:59Mr. Bluestone: I would have to take caution answering that question. This is a highly litigated issue right now. I would echo what we heard earlier in the hearing today. Generally speaking, that is the rule.
▶ 2:43:13Sen. Durbin: Mr. divine?
▶ 2:43:16Mr. Divine: Thank you. My understanding is that it is almost always require that you and court order. The only exceptions are is there is -- if there is a lack of jurisdiction. You would have to check to see whether something fell within one of those rare exceptions.
▶ 2:43:34Sen. Durbin: But that would lead to an appeal, would it not?
▶ 2:43:39Mr. Divine: Certainly you can appeal and you would do that in a jurisdictional study. There have been cases where a court has ordered somebody to do something that was literally impossible for them to comply with. In response to sanctions, --
▶ 2:43:56Sen. Durbin: Is that the only exception?
▶ 2:43:58Mr. Divine: There is a doctrine of well-recognized exceptions. There are some other situations. For example, if the court has ordered someone to dismiss something and they are claiming privilege sometimes, sometimes we have to defy that order to appeal it. That is the only way to appeal it. That is a recognized exception in those circumstances.
▶ 2:44:23Sen. Durbin: Budget as a legal process that you follow if you will assert that sort of defense, correct?
▶ 2:44:29Mr. Divine: That is correct.
▶ 2:44:33Sen. Durbin: If you do not accept that, if you accept it as a final order, are you bound by that order?
▶ 2:44:39Mr. Divine: In almost all circumstances the answer is yet.
▶ 2:44:43Sen. Durbin: Ms. lanahan?
▶ 2:44:47Ms. Lanahan: I would agree that the typical rule is that parties are bound by that court order. I think there have been a couple of exceptions that have been discussed. As a general matter, that is correct. I would not want to go into specifics because this is a hotly litigated issue as was discussed earlier.
▶ 2:45:11Sen. Durbin: Mr. stevens?
▶ 2:45:16Mr. Stevens: Yes. As a judge I expect parties to follow my orders. There have been references to other neuro exceptions to that rule. Frankly with almost four years on the bench I have not encountered those exceptions.
▶ 2:45:30Sen. Durbin: I want to make this clear. If you have a court order, you have to follow later appeal it. That is my conclusion.
▶ 2:45:41Mr. Stevens: I expect parties will follow my orders.
▶ 2:45:45Sen. Durbin: I'm asking whether it is part of the rule of law in america. I think it is, isn't it?
▶ 2:45:51Mr. Stevens: Yes. There is a process if a litigant does not like a decision, they can ask for a transfer to the supreme court.
▶ 2:46:04Sen. Durbin: Mr. divine, the quote comes from the mirror october, 2010. You called yourself a zealot for the pro-life movement. I will ask again. Should in vitro the relation -- should in vitro fertilization be ethically permitted?
▶ 2:46:27Mr. Divine: When I used the term zealot, I was using the same term that you used earlier this year. When you have a duty -- when you are an advocate for a cause, you have a duty to advocate for those issues energetically.
▶ 2:46:45Sen. Durbin: Where are you on in vitro fertilization?
▶ 2:46:48Mr. Divine: I don't think any of my articles in college have taken any position on that.
▶ 2:46:54Sen. Durbin: Forget your college. I am sure it was an exciting experience. Let's talk about now. I would like to know your position on in vitro fertilization.
▶ 2:47:07Mr. Divine: You said you were not surprised by my previous answer. I cannot talk about this politically contentious issue.
▶ 2:47:13Sen. Durbin: After alabama made that faithful ruling saying that an ivf embryo was a person, there was an effort by most mainstream people in politics from both parties to clarify their position on in vitro fertilization including the current president of the united states. The fact that this panel and Mr.
▶ 2:47:35Sen. Durbin: Divine is struggling with that is a tell as to what we can expect from the issue if the nomination is approved.
▶ 2:47:47Sen. Hawley: Are you running for office?
▶ 2:47:50Mr. Divine: I have never been a political candidate.
▶ 2:47:52Sen. Hawley: Are you seeking the nomination of a party or approval of voters?
▶ 2:47:57Mr. Divine: No.
▶ 2:48:00Sen. Hawley: You have been nominated to be a judge?
▶ 2:48:01Mr. Divine: Yes.
▶ 2:48:02Sen. Hawley: Will you be able to follow the law?
▶ 2:48:05Mr. Divine: Absolutely. When I am advocating interests for the state of missouri, I set aside my own beliefs any time advocating for my clients.
▶ 2:48:14Sen. Hawley: What is the control in supreme court on the life issue?
▶ 2:48:18Mr. Divine: The dobbs decision.
▶ 2:48:19Sen. Hawley: William follow it faithfully?
▶ 2:48:22Mr. Divine: Absolutely.
▶ 2:48:23Sen. Hawley: Senator schmitt.
▶ 2:48:27Sen. Schmitt: . Thank you I mentioned this in the introduction. I am not sure it has ever happened in the history of our republic that within the last seven or eight years you have two former attorney general fr missourio -- from missouri. It is a pretty unique moment.
▶ 2:48:56Sen. Schmitt: Also in a courthouse named after an attorney general for missouri. It is a great day for all of you and your families. We are so glad you could make it and share this special experience. Maybe the most important question for all of you if you could answer separately, how great was it to work for eric schmitt? I am joking. By the way, you can augment that to any question that is asked if you choose.
▶ 2:49:27Sen. Schmitt: I will not make you do that under oath. I guess, just to open it up for each one of you to answer which may be a different question that is often asked. Each one of you has practiced before judges. You have clerked for judges in different capacities. What is one thing that you would take from that experience from before a judge working for a judge that you saw a judge to do that you would like to emulate now as you hopefully become a federal judge?
▶ 2:49:59Mr. Stevens: I will take on that first question with some risk and I will quote from solicitor general john sauer that I love you both equally.
▶ 2:50:11Sen. Schmitt: He had a different answer for the record.
▶ 2:50:14Mr. Stevens: I have another mentor in the room. Just thinking back to seeing him presiding over appeals, he was tremendously gracious with the parties before him. He gave everyone an opportunity to address what he could see weaknesses in their arguments and was honest about that. The way he approached the parties is something I would hope to emulate.
▶ 2:50:40Mr. Divine: Senator schmitt you were my favorite attorney general that I worked for in 2019. One of the things I really appreciate working for chief judge william pryor and justice thomas is the humility that they brought to the bench. It was not unusual for a judge either them or some other judges in the building to have an initial inclination of what the correct answer is going to be and change their mind as they are going through the process.
▶ 2:51:09Mr. Divine: Being open to that sort of thing, being open to having your mind changed is a very valuable asset for a judge.
▶ 2:51:17Ms. Lanahan: Thank you senator schmitt. One of the things I loved the most when I was working for your office was the opportunity to be a part of the way that democracy works in this country. In the state of missouri, people elect their representatives. Then the general assembly makes laws. Our job is almost all of those laws are challenged at one point.
▶ 2:51:43Ms. Lanahan: It is our job in the attorney general's office to give those laws a defense. As important as a role as a public defender in the democratic process to protect and defend those laws that are passed by the people of missouri. I think both of my journeys and I want to talk about judge grunder.
▶ 2:52:11Ms. Lanahan: The way he went through the opinions that he would write and make sure that he was not skipping any steps with something that I thought was extremely valuable. I think the most often when you see judges go off track, it is because they have skipped a step and it is easy when you skip a step in your analysis to insert your own opinion. I think that was one of the things that I took from that clerkship, to never skip steps, show your work and make sure you are not inserting your own opinion.
▶ 2:52:46Mr. Bluestone: Given the team that you put together at the attorney general's office, it was one of the seminal point in my career. Not just because of the great team working for you and working with the great team that we had but also some of the tremendous young lawyers that came up through that office. As I'm sure you and senator hawley both know, the office where justice clarence thomas began his career under than attorney general danforth.
▶ 2:53:15Mr. Bluestone: It is an amazing training ground for lawyers. One of my current clerks will be leaving me to join the attorney general's office. I expect another clerk will be joining that office after we are finished next year. It is a tremendous place to learn to practice law and to practice law long-term as well. I have had the great privilege of clerking for judge pascoe implement the second.
▶ 2:53:46Mr. Bluestone: The first thing I can say he exemplified was collegiality. There was a time on the circuit where there were a lot of reagan appointees including judge bowman. You had senior members from the court such as from the linden by administration -- lyndon b. Johnson administration. One of judge bowman's greatest friends on the court and they agreed on virtually nothing legally. .
▶ 2:54:17Mr. Bluestone: They exemplified what someone said earlier about being able to disagree without being disagreeable. That left an impression and I have had opportunities to give presentations to young lawyers about how to approach trials or appeals. That is one of the things they always mention. In the rough and tumble of trials, you cannot always expect to get along with opposing counsel. You have to represent your client. Before the circuit and the courts of appeals, they expect their bars to be collegial.
▶ 2:54:50Mr. Bluestone: They expect that and it is advantageous to your client to be that way as well. The other thing was instinctual to him was a love for the rule of law and respect for the rule of law. It was apparent to me from the beginning. I have had that experience in other capacities of my career as well. I have talked about it at my investiture ceremony almost four years ago. Some of the mentors I have had during my career.
▶ 2:55:16Mr. Bluestone: One of those was judge grunder changed my life when he was united states attorney in st. Louis. He had the good judgment to hire my wife as his first law clerk. Judge grunder also represents the rule of law. He is the U.S. attorney and now as a judge for about 22 years he has exemplified that. Another example would be tom tate myre who senator schmitt knows is an institution in st.
▶ 2:55:47Mr. Bluestone: Louis. He was the U.S. attorney appointed under president reagan. He joined our team at the attorney general's office and worked for attorney general schmidt. There is no one I know more who exemplifies the rule of law than tom. Even when it was not politically advantageous for him as U.S. attorney. He made some risky decisions to ensure that the law was upheld. Those of the things I have learned.
▶ 2:56:14Sen. Schmidtt: Thank you all. You will all be great judges so congratulations.
▶ 2:56:19Sen. Hawley: I gave senator kennedy an extra couple of questions on the condition that he would be nice to all of these folks. With that, senator kennedy.
▶ 2:56:31Rep. Kennedy: I am always nice. How many of you have worked for senator schmitt? All four of you? Is it true that he was suspended 23 times in junior high school? In february alone? I am not trying to trick you.
▶ 2:56:58Rep. Kennedy: I will not ask you how you cases. I just want to know how you think. Let's start with the counselor on the end. 3:00 in the morning and we see someone driving down the road. Not many other people around. It is a saturday night. Can I stop you?
▶ 2:57:29Mr. Bluestone: Just because you see him driving around?
▶ 2:57:33Sen. Kennedy: Yes.
▶ 2:57:35Mr. Bluestone: They would need to be more of a basis than that.
▶ 2:57:39Sen. Kennedy: So the answer is no?
▶ 2:57:45Mr. Bluestone: No.
▶ 2:57:47Sen. Kennedy: Let's say I'm -- on three previous cases, he has been stopped for dui. Can I stop him?
▶ 2:58:00Mr. Divine: No. You would need more than that.
▶ 2:58:05Sen. Kennedy: Why doesn't that give me reasonable suspicion?
▶ 2:58:10Mr. Bluestone: The fact that he was driving at 3:00 a.m. And driving under the influence would not be enough. If you were swerving for driving properly in some other way and committed a traffic violation or something along those lines, certainly the officer would be well within to stop him.
▶ 2:58:34Sen. Kennedy: We can agree our privacy is precious to us, even in a car.
▶ 2:58:40Mr. Divine: The fourth amendment protects us all from those procedures.
▶ 2:58:44Sen. Kennedy: How come the cop can set up a roadblock to stop everybody when they don't have reasonable suspicion or probable cause just as check and see if they have insurance?
▶ 2:58:59Mr. Bluestone: There are limitations on scenarios like that.
▶ 2:59:05Sen. Kennedy: Can they do it?
▶ 2:59:11Mr. Bluestone: Officers can set up roadblocks if distended relates to something specific to automobiles. They could not stopped every car. -- they could not stop every car.
▶ 2:59:28Sen. Kennedy: They don't have reasonable suspicion. They are stopping everybody. They certainly don't have probable cause. It is inclusive. I could spend 10 minutes in line. What is the basis for that being constitutional?
▶ 2:59:49Mr. Bluestone: In scenarios like that officers would not be acting unreasonably.
▶ 2:59:55Sen. Kennedy: Because the fourth amendment prevents unreasonable searches and seizures. How do you determine whether something is unreasonable or not?
▶ 3:00:04Mr. Bluestone: That would defend on the situation, the facts and the context.
▶ 3:00:08Sen. Kennedy: Don't you balance the cost and benefits?
▶ 3:00:11Mr. Bluestone: In a scenario like that, yes.
▶ 3:00:14Sen. Kennedy: Cool. Judge, what is the role now that the supreme court follows on reinforcing the cases? Congressional redistricting?
▶ 3:00:29Mr. Divine: My understanding is that the supreme court has decided that that is a political issue and under the political issue doctrine that essentially the courts really don't have much of anything to say about political redistricting.
▶ 3:00:44Sen. Kennedy: If there missouri legislature redraws district and there are a majority of democrats in the legislature so they say we will redraw these districts to benefit democrats and we are not going to the reluctant to say so. They say it in front of god and country. Is that ok?
▶ 3:01:08Mr. Stevens: It is legal.
▶ 3:01:10Sen. Kennedy: Ok. I will not get to all of you. Counselor? Do you think the meaning of the constitution is immutable?
▶ 3:01:29Ms. Lanahan: The U.S. supreme court has said --
▶ 3:01:33Sen. Kennedy: I want to know what you think.
▶ 3:01:37Ms. Lanahan: My view in terms of what it is is that my way of looking at the constitution is to say what does the text say and what did it mean at the time. This is something that the U.S. supreme court also says. If that is not clear, there are other things you can look to like history and tradition.
▶ 3:02:00Sen. Kennedy: You look to what it meant at the time it was passed?
▶ 3:02:04Ms. Lanahan: Correct.
▶ 3:02:06Sen. Kennedy: The who?
▶ 3:02:08Ms. Lanahan: To the people passing it.
▶ 3:02:10Sen. Kennedy: The people who wrote it?
▶ 3:02:12Ms. Lanahan: There are various different ways of looking at this. The supreme court has said that you look at the meaning that the words would have to the public at the time to the constitution was ratified.
▶ 3:02:26Sen. Kennedy: That's right. I'm done. Thank you. Congratulations.
▶ 3:02:34Sen. Hawley: Senator budd
▶ 3:02:40Sen. Hawley: Senator bu padilla.
▶ 3:02:42Sen. Padilla: Thank you for allowing me to come back and ask some questions. Mr. divine, in 2011 you wrote a piece for your college newspaper argument against marriage equality.
▶ 3:02:59Sen. Padilla: While you acknowledge that "the gay community cannot be blamed" for the " beginning -- weakening" of marriage, you were worried that there would be a trend of dramatic aggressions.
▶ 3:03:23Sen. Padilla: It is hard to see that this can be interpreted as anything other than you suggesting that lgbtq people enjoy the same rights as straight people is somehow harming your conception of the institution of marriage. Like I said, do not display marriage equality. You also blame easy divorce, cohabitation, increased single parenting rates and recreational sex. These are your words.
▶ 3:03:54Sen. Padilla: Mr. divine, noting for the record that this is pride month and we are sitting in washington, D.C. which is hosting world pride this year, I have to ask you believe in marriage equality?
▶ 3:04:06Mr. Divine: Thank you for that question. As you mentioned this was a college writing in 2011. At the time I expressed the same view that president obama expressed him of that joe biden expressed, that hillary clinton expressed. Under canon five of judicial ethics as I'm sure you're aware and as hundreds of nominees before me have expressed, I can not tell you what my personal views are today. What I can tell you is that that was almost 15 years ago.
▶ 3:04:37Mr. Divine: I am no longer in college. That is a general matter. I have grown up. I have had more experiences. Even some of my religious views have changed in that time. I cannot tell you specifically any specific policy or political issue.
▶ 3:04:51Sen. Padilla: Let's go to today. Can you tell me the legal status of marriage equality to the supreme court?
▶ 3:04:57Mr. Divine: 10 years ago this month the old birkenfeld decision was decided. Maybe three years ago congress passed legislation and obviously oberg could oberg coafel is a binding decision in the supreme court.
▶ 3:05:19Sen. Padilla: You are fortunate enough to be confirmed, you will uphold that?
▶ 3:05:26Mr. Divine: That's correct.
▶ 3:05:28Sen. Padilla: Thank you. Being nominated to serve as a nation's federal judge is the greatest honor we can bestow on a person. It is also one of the greatest possibilities. How many years of litigation experience do you have?
▶ 3:05:47Mr. Divine: How many years, about a decade.
▶ 3:05:52Sen. Padilla: Can you be more precise?
▶ 3:05:55Mr. Divine: I was the chief counsel in the senate. I was not doing litigation all the time during that period. I think it is about nine years.
▶ 3:06:09Sen. Padilla: Does that include clerkship time?
▶ 3:06:12Mr. Divine: Yes.
▶ 3:06:13Sen. Padilla: So without clerkship it would be less?
▶ 3:06:19Mr. Divine: About seven years.
▶ 3:06:28Sen. Padilla: It is important for the committee to consider that. President trump decided to throw out the american bar association's nonpartisan rating system. I know the american bar association does have a threshold for litigation experience for any nominee to receive a qualified rating. You seem to fall short of that. Again, something for the committee to consider I would hope. Lastly, we are five months into president trump second term.
▶ 3:06:58Sen. Padilla: We have already seen numerous attempts by the president and even some of my colleagues in congress to attack and undermine the judicial branch all for the crime of issuing rulings, pausing or striking down the president's illegal and unconstitutional actions.
▶ 3:07:15Sen. Padilla: I was concerned to hear in the first panel of this hearing a willingness -- unwillingness to tell senator kennedy that the executive branch must follow court orders.
▶ 3:07:33Sen. Padilla: If you are lucky enough to be confirmed, do you offer an opinion in which the executive branch of the one of its officers is a party and decide against the executive branch or one of its officers, would you believe they are bound by that decision?
▶ 3:07:49Mr. Divine: I have not been nominated to the sixth circuit. Taking your question with respect to the district courts and missouri, I mentioned to ranking member durbin earlier that there is a well-established doctrine on this. The answer is almost always yes with some exceptions like there is lack of jurisdiction, things of that nature.
▶ 3:08:12Sen. Padilla: My apologies. Hermandorfer was nominated for the sixth circuit, not you. I understand there are some exceptions but there are some people in this claimant that we are living in seem to be really broadening the categories of what qualifies for an exception there were different than what we have seen historically.
▶ 3:08:41Mr. Divine: One of those exceptions, the first of the three that I mentioned to you is if a court lacks jurisdiction. The supreme court has been clear that an order issued without jurisdiction, it is as if it never happened. For there to be a circumstance where a judge was accusing somebody of violating an order and the district court was later determined to lacks jurisdiction at the outset, then you would be in order to violate.
▶ 3:09:10Sen. Padilla: I will be submitting additional questions for the record.
▶ 3:09:14Sen. Hawley: Questions can be submitted until june the 11th at 5:00 p.m. Thank you to the nominees. And with that, the hearing is adjourned.