▶ 0:17:07Chair Grassley: Are being held up on the senate floor. The senate's duty is to provide advice and consent, not manufacture gridlock. When nominee is clear this committee, they deserve a timely vote.
▶ 0:17:28Chair Grassley: Instead, we have seen well-qualified men and women who will put their lives on hold and answer the call of public service left twisting in the wind or months. That weakens our justice system at every level. Vacant judgeships means heavy caseloads and long delays. There it U.S.
▶ 0:17:54Chair Grassley: Attorney offices leave communities without senate confirmed law enforcement leadership. That should concern everybody in this country and particularly in the senate. Ther was a time when nominees who cleared this committee were confirmed routinely. Often, often as simplys by voice vote.
▶ 0:18:20Chair Grassley: Now we see a pattern of delay, and obstruct. The losers are not republicans or democrats, they are the american people waiting for justice. It is time for the senate to act. Second, we have heard time and again from my democratic colleagues that our nominees lack independence from the president. That is a turn of events.
▶ 0:18:51Chair Grassley: Because, at the democrats' own partisan spotlight hearing, the senate minority leader bragged that the democrats had stacked the bench wit"progressive judges." he did not stop there. He celebrated their rulings against president trump and declared our people are the first line of defense.
▶ 0:19:21Chair Grassley: Now, think about those world records -- those words. Our people. That is not the language of an independence -- independent judiciary but political ownership. And yet these are the same democrats that cry foul and actually accuse republican nominees of being trump judges. The double standard is breathtaking.
▶ 0:19:49Chair Grassley: And we are repeatedly hearing from democrats that the nominees must follow all court orders. Let me be clear. Following the rule of law means obeying lawful court orders. But we now have lower court judges who are not following court orders, as justice neil gorsuch put it a few days ago.
▶ 0:20:16Chair Grassley: "lower court judges may sometimes disagree with this court's decision, but they are never free to defy it." he warned that "this is now the third time in a matter of weeks that this court has had to intercede in a case squarely controlled by one of our precedents."
▶ 0:20:47Chair Grassley: He reminded those that "when this court issues a decision, it constitutes a precedent that commands respect in the lower courts." justice brett kavanaugh has made the same point.
▶ 0:21:05Chair Grassley: "members of the judiciary has an important responsibility, to get it right to do our hard work and to understand our role in the constitutional democracy.
▶ 0:21:21Chair Grassley: We are not policymakers." in march, justice alito condemned a federal court for an act of "judicial hubris -- hubris and self aggrandizement." when the highest court of the land uses the phrase is, hubris d self-aggrandizement to describe what is happening in
▶ 0:21:52Chair Grassley: The judiciary, it tells you something has gone terribly wrong. All of us should agree that lawful federal court order should be respected. That is not a republican important, or a democratic point, that is the bedrock of the rule of law.
▶ 0:22:13Chair Grassley: Is stunning to hear democrats accuse republican nominees of being trump judges, when their own leaders boast that their nominees are his people. Judges are not supposed to be anybody's people.
▶ 0:22:35Chair Grassley: Th belong to a separate branch of government, insulated from partisanship with only one duty, to follow the law whether they like the outcome or not. So, that brings us to today's nominees. Highly qualified men and women who understand the importance of judicial independence and constitutional design.
▶ 0:22:59Chair Grassley: We will hear more about professor mascott's tremendous resume in a moment. But let me just say that she is well-known and well respected by this known and well respected by this committee.well respected by this committee has called on the professor repeatedly to testify about some of the toughest constitutional and statutory questions. She also filed amicus briefs on behalf of members of this committee and very important cases.
▶ 0:23:31Chair Grassley: We es. We trusted her judgment then, and we can trust I cnow. The professor's nomination -- qualification speak for herself. She clerked for two sitting supreme court justice says. The supreme court has cited her scholarship eight times and mentioned her by name and oral arguments. At george washington university law school, she earned a record 4.22 gpa.
▶ 0:24:01Chair Grassley: And her professors, even came to this committee to this committee to say that they thought her exam answers were better than their own answer keys.
▶ 0:24:16Chair Grassley: The kind of intellect that that represents, paired with her steady judgment, makes professor mascott an outstanding nominee for the third circuit. The district court nominees are also well-qualified and we look forward to hearing from them today. As a final point I will mention that we will have a long hearing today.
▶ 0:24:46Chair Grassley: Six nominees and two panels with multiple introducers. I ask everyone to keep the remarks limited to the five minutes allotted to keep the hearing on schedule. Setor durbin.
▶ 0:24:55Sen. Durbin: Thank you and welcome back to washington. I hope the corn crop in iow is as good as illinois.
▶ 0:25:05Chair Grassley: A national record.
▶ 0:25:07Sen. Durbin: And I am su your pharma lead the way. I want to address the issue that you have raised because I think it is time that we discuss it openly and find a solution. I share your interest in ending the impasse we face on the floor of the senate. For decades, the senate confirmed U.S. attorneys by voice vote or unanimous consent. All 85 of president trump's U.S.
▶ 0:25:36Sen. Durbin: Nominees in the first administration were approved by voice vote. All of them.al early in the biden administration things change. Senate republicans began a campaign of obstruction and in april 2021, senator cotton of arkansas announced that he would block nominees from any state represented by a democrat on this committee. Senator cotton finally lifted his hold in december of 2021 but in february 2022 he again blocks nominees for months.
▶ 0:26:08Sen. Durbin: Talk about twisting in the wind. There is another case which I recall osupreme twisting in the wind. Remember when and tosca lee had died on a hunting trip? How long did that they can see sit open and unfilled? At least 10 months. The whole last year of the obama administration he was unable to fill a vacancy on the highest court in the land. In june 2020 three, things changed again.
▶ 0:26:37Sen. Durbin: Then senator jd vance of ohio announced he would place a blanket hold on "all department of justice nominees under biden" including U.S. attorneys to and these are his words and I attribute him -- attrib to him on the floor to "grind the justice department to a halt." on eight separate occasions I 2023 and 2024 I went to the
▶ 0:27:08Sen. Durbin: Senate floor to request and really to beg for a change from senator vance. Give us consent to confirm these nominees according to the senate tradition. Each time I efforts were blocked by senator vance or other republican senators his behalf. Due to republican obstruction president biden was only able to fill 68 of the 93 U.S. attorney positions with senate confirmed nominees. I appreciate Mr.
▶ 0:27:36Sen. Durbin: Chairman that you do not agree with senator vance's actions back then and I believe that you do not do it now. But we cannot have one set of rules for republican presidents and another for democratic. We face the trump administration making a run around senate advice and consent duties. Senator coons is here from the state of delaware and I am sure he will address that in a minute.
▶ 0:28:02Sen. Durbin: Several blue states the trump administration has taken an illegal and unprecedented approach to filling vacancies with extreme candidates while making no attempt to consult with democratic senators. I learned during the first trump administration to sit down and work with the trump white house. We disagreed on almost everything. When it came to filling judicial vacancies, we failed every single vacancy that I was a party to do. We reached an agreement and we both had to compromise and we did.
▶ 0:28:33Sen. Durbin: I think that is the way it still should work. The path forward cannot result in republican senators having their preferred U.S. attorney nominees confirmed while democratic senators have outrageous picks installed in legally dubious ways. I look forward to working with you Mr. chairman and I mean that personally, to a fair and bipartisan solion to a problem created by both parties. Let us do something about it in a simple and fair way. And I think we can achieve that.
▶ 0:29:06Sen. Durbin: I will not go into detail on the delaware nominee, but I want to thank you for your long-standing bipartisan tradition of requiring loose lips from senator supporting district nominees. I can give you specific examples where during the first trump administration democratic senators did not approve any blue slips to fill any judicial vacancies in their state. They waited until there was a democratic president.
▶ 0:29:33Sen. Durbin: I can give you another obvious example and I will not name names of one state not represented on the committee where the republican senators filled no judicial vacancies during the biden administration and waited until they had the opportunity for a republican president. It has been done by both parties and we will stand by the blue slip. And I yield.
▶ 0:30:07Chair Grassley: Senator hyde-smith, senator tuberville, and senator coons. Senator mcconnell, please proceed.
▶ 0:30:23Sen. Mcconnell: Good morning, it is my honor to introduce my friend general -- jennifer mascott. President trump made an excellent selection as she is nominated for the third circuit court of appeals. I have had the pleasure of getting to know her through the years through our work -- through her work as a professor. I can tell you that she has a brilliant legal mind, evidenced in her academic credentials and distinguished public service.
▶ 0:30:55Sen. Mcconnell: This nomination provides the senate with a prime opportunity to elevate a well studied constitutional scholar, who understands the role of a judge. Before beginning her law career, he graduated from the university of maryland with degrees in math and government. I am proud to say that early in the career she worked in a kentucky delegation as a press assistant.
▶ 0:31:24Sen. Mcconnell: I am fond of her kentucky connection and grateful for her service to the commonwealth. As you might expect, this is one of many roles where she has excelled in serving others. After her work in congress, she graduated from the george washington university law school with the highest gpa in her class and she broke a record of the law school' highest
▶ 0:31:55Sen. Mcconnell: Graduating gpa ever. It is no surprise she is regarded as wicked smart among her peers. In the legal community. Jim -- jen built her skills through impressive courtships with brett kavanaugh and then supreme court justice clarence. Her legal foundation makes her exceptionally well suited for a spot on the federal bench.
▶ 0:32:29Sen. Mcconnell: Perhaps the most impactful aspects is her devotion to teaching the next generation of attorneys. The scalia law school at george mason university and catholic university's columbus school of law. She earned a reputation for accessibility to students and broad support for their legal journeys.
▶ 0:32:58Sen. Mcconnell: The faculty of her alma mater represents a variety of political backgrounds and praised her demeanor, her outlook on jurisprudence, and her stellar qualifications. Her fair mindedness and broad knowledge of the lawmaker the perfect candidate for a federal judge. Needless to say, having a highly qualified legal professional reached the bench has been one of the favorite parts of my job.
▶ 0:33:28Sen. Mcconnell: I have gotten to do it an awful lot. Though, I can speak with a bit of experience when I say that she is exceptionally qualified for the role that we are discussing. She will interpret the law as it is written and a shirt the best of her ability that our founders' principal of the rule of law wilprevail.
▶ 0:33:53Sen. Mcconnell: I would like to close by cognizing her four children, avery, everett, eli, and augustine, who a thrilled that their mom sits on as part of the committee today as consideration to be a federajudge. You and your family were incredibly strong through the loss of your husband in 2023.yor loss of your husband in 2023.yon inspiration to all of us.
▶ 0:34:22Sen. Mcconnell: There is no doubt that his looking down today with so much pride in his family. So Mr. chairman, thank you for allowing me today to give my insight on this stellar nominee. I am confident that she will serve our country well and I look forward to her consideration and her confirmations.
▶ 0:34:45Chair Grassley: Thank you. Now senator wicker.
▶ 0:34:49Sen. Wicker: Oh -- several -- thank you for several of my colleagues on thisguistinguished committee. Senator hyde-smith and I have a great honor of presenting two very outstanding members of our state supreme court for the position -- for the two vacancies of district judge in the northerthn district of mississippi.
▶ 0:35:16Sen. Wicker: Senator hyde-smith has served in the state senate with both of these distinguish terrorists -- jurists before they went on to the bench and I have said he has known both of them as judges and one of them as a colleague since when she was herself a member of the state senate.
▶ 0:35:41Sen. Wicker: And, I will take the leadn introducingustice bobby chamberlain and senator hyde-smith take the lead on introducing justice jimmy maxwell. These know that we support them both.
▶ 0:35:59Sen. Wicker: From yearsrs of observing the personal character of justice bobby chamberlain, I can assure this committee that he has a rock solid choice and ready to assume this office. I have known him for many years, and had an opportunity to observe him in many capacities. He is a graduate of the university of mississippi school of law.
▶ 0:36:28Sen. Wicker: And immediately upon graduation, he went back and began work in the private sector and was a partner in one of the outstanding firms in desoto county, mississippi. He has excelled in the practice of private law. He has been a municipal court judge.
▶ 0:36:49Sen. Wicker: He has been a city prosecutor and appointed a special master in chancery court. He has worked for years as an attorney for the desotcounty board of supervisors. The governing legislator board of county government in the state of mississippi.
▶ 0:37:13Sen. Wicker: As I said earlier, he served as state senator for desoto county for some five years where he did serve with senator hyde-smith as a colleague. In 2005, governor haley barbour thought enough of senator chamberlain to appoint him as a circuit judge in mississippi's 17th circuit which he held for
▶ 0:37:43Sen. Wicker: Over a decade until 2016 when he decided to run for the position of supreme court justice. In some states that his appointive but in our state it is elected and I think it is a testimony to justice chamberlain's fairness and evenhandedness that in the runoff election for that
▶ 0:38:14Sen. Wicker: Position supreme court justice in his home county of desoto county, the fastest growing county in the state of mississippi, he received 93% of the vote. And I think tt underscores what I have known for a long time, that the people who know him best have confidence in him and they have seen him in all of these capacities over the years, and they thought enough of him to give him 93% of the vote of
▶ 0:38:49Sen. Wicker: The hometown folks. He is a family man. He and his wife, kim, who is herself a dedicated public servant raised tir son william in desoto county, hernando and the united methodist church of hernando. Bobby is clearly ready for this role. Again, I endorse jimmy and bobby and I know them by name and personally.
▶ 0:39:17Sen. Wicker: They will both make very fine judges for the northern district of mississippi. And I urge my colleagues to approve their nominations.
▶ 0:39:27Chair Grassley: Thank you. Senator hyde-smith.
▶ 0:39:31Sen. Hyde-Smith: Thank you chan -- chair grassley, ranking member durbin and other members of the committee, thank you for the chance to be here on behalf of my very special friends and I am grateful for president trump for nominating james maxwell and robert chamberlain to serve as united states district judges for the northern district of mississippi. Both are highly qualified individuals and bring honor, integrity and experiee to the federal bench.
▶ 0:40:02Sen. Hyde-Smith: I offer my full support for their confirmations. As senator wicker mentioned, I got to know bobby chamberlain as we went into the state senate together and his wonderful wife and their son and realized how outstanding they all are. Today it is my privilege to introduce and speak in support of james maxwell.
▶ 0:40:27Sen. Hyde-Smith: He has long served the people of mississippi with the distinction of a man of outstanding character, and deep legal experience. Justice maxwell resides in oxford, mississippi where he earned both his undergraduate and law degrees. His legal career reflects a steady rise through increasingly demanding roles, always defined by professionalism and dedication to the rule of law.
▶ 0:40:59Sen. Hyde-Smith: From 2002 until 2009, he served as assistant united states attorney in the criminal division, prosecuting a wide array of serious cases from corruption and white collar crimes to major corruption, game act -- gang activity, and violent offenses. His work underscored his commitment to justice.
▶ 0:41:25Sen. Hyde-Smith: In 2009, he was appointed to the mississippi court of appeals where he served until 2015. He worked on a wide variety of civil and criminal appeals and built a strong reputation for being fair, thorough, and a sharp legal mind. Since 2016, he has served in the mississippi supreme court.
▶ 0:41:49Sen. Hyde-Smith: In that esteemed role, he has reviewed thousands of cases and all third more than 500 majority opinions. This extraordinary body of work demonstrates his intellect and dedicati to careful and principled jurisprudence.
▶ 0:42:07Sen. Hyde-Smith: Altogether, his 16 years on the state's two highest courts combined with his prosecutorial experience make him exceptionally well prepared to serve on the federal bench. Beyond the court room, justice maxwell has been an engaged leader in the mississippi bar association and the state prosecutor's association.
▶ 0:42:33Sen. Hyde-Smith: While his professional accomplishments are significant, those who know him best speak of his humility, integrity and faithfulness to both law and his community. I would also like to recognize his wife, who is here today in support. Her presence is a reminder of the family and community that stands behind jimmy and the values that shape his service.
▶ 0:42:57Sen. Hyde-Smith: In closing, I have full confidence in justice maxwell's qualifications, character and commitment to justice. He will be a tremendous asset to the northern district of mississippi and to our federal judiciary more broly. I look forward to working with this committee and with leader thune to ensure a swift and successful confirmation of james maxwell and robert chamberlain to serve in the northern district of mississippi. Thank you.
▶ 0:43:27Chair Grassley: Thank you. Now senator tuberville.
▶ 0:43:31Sen. Tuberville: I want to begin by thanking president trump for selecting these exceptional candidates. I really enjoyed working on this important task. We need our justice system to focus on upholding the constitution and not pushing an agenda and I am confident that these three gentlemen will respect the rule of law and be impartial and all of their interactions on the bench.
▶ 0:43:59Sen. Tuberville: It is my honor and privilege to introduce these three individuals who have been nominated to serve as federal district court just -- judges and the great state of alabama. Number one, edmund lacour from the northern district. He is currently the solicitor general of the state of alabama. Before assuming the role he served as deputy solicitor general. Prior to that, he worked in private practice in washington, D.C..
▶ 0:44:31Sen. Tuberville: He was previously nominated to be the U.S. district judge by president trump at the end of the first administration. This neighbor -- this nomination was later withdrawn by president biden. A native of alabama, he attended birmingham southern college for an undergraduate degree and yale for his jd.
▶ 0:44:52Sen. Tuberville: Our second nominee, harold motty who is -- mooty who is a ptner in huntsville, alabama, specializing in business and commercial litigation. He has served as the president of has served as the president of the served as the president of the alabama's the president of the alabama's defensesident of the alabama's defense ident of the alabama's defense lawyers young lawyers section a served on the executive committee for the alabama state bar.
▶ 0:45:20Sen. Tuberville: Hal is originally from montgomery, and he went to both undergraduate and law school at the university of alabama. The third nominee is Mr. bill lewis for the middle district. He is a justice on the alabama supreme court and prior to being nominated he served as a judge on the alabama court of appeals and earlier, he was the presiding circuit judge on the 19th judicial circuit.
▶ 0:45:52Sen. Tuberville: Before his service began, he was in private practice. He has a lifelong resident, having grown up in what tonka --wutunka. Welcome to all of these nominees and their families, which is quite a few. So, thank you to the committee for this opportunity and I urge swift confirmation of these outstanding nomins. Thank you.
▶ 0:46:22Chair Grassley: Thank you senator tuberville. Now senator britt.
▶ 0:46:27Sen. Britt: Thank you for the opportunity to out -- to introduce y to out -- to introduce these ut -- to introduce these outstanding nominees. This is not only a great day for the state of alabama but for our nation to see these fine men in front of us. I would like to thank president trump in this exception -- of his exceptional leadership and I want to thank senator tuberville to be able to work and collaborate and move these to the front of this committee.
▶ 0:46:54Sen. Britt: I want to welcome justice bill lewis, hal mooty, and admin lacour. And their families. We are so proud to have you. Before us are three nominees for federal judgeships who have superb qualifications and a devotion to the constition and the rule of law. Ihe rule of law. I e rule of law. I am ule of law. I am thrilledaw. I am thrilled w. I am thrilled that president trump has nominated them to serve in the judiciary and looking forward to their swift confirmation.
▶ 0:47:22Sen. Britt: While each of them will have an opportunity to introduce themselves I would like to highlight some of their accolades. Justice bill lewis has served as a judge in the judicial system since 2016 and is an associate justice of the alabama supreme court. Prior to that, he served as a circuit judge for the 19th judicial circuit and a judge on the court of civil appeals.
▶ 0:47:48Sen. Britt: He has worked as a prosecutor and defense attorney and was in private practice for approximately 10 years before becoming a judge. He has served our state in other ways including as a member of the university of south alabama board of trustees. As a graduate of the university of south alabama and the cumberland school of law, he has received numerous awards and honors a served with distinction throughout his career.
▶ 0:48:16Sen. Britt: Born and raised in the river region, this is place that my children call home an I have an opportunity to reside and I can say that justice lewis has thanks -- unquestionable character. His story and inspire all who know him, and I cant wait for him to be sitting on the bench. Second is hal mooty. He has a partner at one of the preeminent law firms.
▶ 0:48:46Sen. Britt: He has an outstanding record of representing his clients in commercial litigation across our great nation and he has been named as one of the best lawyers for commercial litigation. He has been an active member of the huntsville community, having served as a board member and president of the crisis center of north alabama, the development council and the committee for the future for the children's hospital of alabama, and as part of the madison county volunteer lawyers program.
▶ 0:49:17Sen. Britt: Every person and part of our state is overseen by hal and he has a relentless pursuit to make sure they are fought for. As a graduate for both undergrad and law school, hal has consistently demonstrated the qualities that are essential to serving as a member of the federal judiary. Having known him for 22 years myself, I can tell him -- I can tell you that there is no one else who has the focus that is unmatched.
▶ 0:49:46Sen. Britt: He has a relentless pursuit of excellence and a deep sense of justice. Finally, edmund lacour serves as solicitor general, a position he has held since 2019. A graduate of birmingham southern college and yale, his legal credentials are unquestioned.
▶ 0:50:07Sen. Britt: He has represented the state and a whole host of litigation in federal court and has submitted to practice before every circuit court of appeals before the united states as well as the supreme court. As lawyer he has filed more than 100 briefs before the supreme court and h argued three cases before the court. Prior to becoming solicitor general he was at private practice and he has also served as a clerk on the 11th circuit.
▶ 0:50:36Sen. Britt: As a fellow native, the entire region is proud to see you serve. I believe that all three of these nominees will apply our laws fairly, uphold the constitution and served with distinction on the federal courts. I am proud to support their nominations and thank them for their willingness to serve and look forward to their swift confirmations. Thank you.
▶ 0:50:59Chair Grassley: Thank you senator. If you folks, we are not going to ask you any questions. So if you want to go, please leave. [laughter] senator coons, you wanted three minutes for some remarks? And maybe I will take a couple of minutes after you get done for a rebuttal. [laughter]
▶ 0:51:25Sen. Coons: Thank you for allowing me to speak to the nomination of Ms. mascott. If I might, congratulations to you and to your family. I mentioned in our meeting yesterday that I have had several personal friends reach out to me to sing your praises as a wife, mother, neighbor, friend and colleague. I want to offer my condolences on the passing of your husband.
▶ 0:51:54Sen. Coons: I personally know how devastating pancreatic cancer is and I want to thank you for your service and the department of justice and your willingness to continue to serve. My question as I post yesterday is why that service should be in the delaware seat on the third circuit. You were nominated by president trump to serve as general counsel for the department of education, a position that fits well with your background. That nomination was just withdrawn yesterday.
▶ 0:52:24Sen. Coons: Why not serve there? You could serve on the deseed circuit which handles a lot of lots -- a lot of the administrative cases. Why not serve there? You have been nominated to sit in the delaware seat long held by the delaware seat long held by judge laware seat long held by judge kemp e seat long held by judge kemp jordan.long held you are not a member of the delaware bar and you have not appeared to practice in delaware. As best as I could tell you're only connection to delaware is a vacation home in bethany beach.
▶ 0:52:53Sen. Coons: That is in sharp contract to the jurist that you have been nominated to replace. He clerked and judged in delaware and served in delaware. You are not even admitted to practice in the third circuit until may, four days after the white house mentioned you were potentially under consideration. This is not your fault. This is an issue between me and the white house if they were ever actually working in good faith with senator blunt rochester and me.
▶ 0:53:26Sen. Coons: We interviewed several conservative delaware unions and members of our bench and bar and I guess they were not conservative enough. Apparently there is not a single member of the delaware bench or bar at the white house thought that was good enough because they nominated a law professor from washington. I appreciated our conversation when we met for the first time, but your lack of practical legal experice and extreme views on presidential power conrned me greatly.
▶ 0:53:55Sen. Coons: You are an academic, and advocate but you have not practiced tort, bankruptcy, corporate law and yet you will grade the work of district and bankruptcy judges. In a moment when there is profound tension in our political and legal system about the boundaries between articles one through three of our constitution, just a few months ago you said that the supreme court's decision in humphrey's executor should be struck down.
▶ 0:54:26Sen. Coons: It has been settled law for 90 years and as a foundation of the boundaries between executive power and the work of this body. Now you will testify I expect that I can count on you to apply fairly what is left of that landmark precedent. I will close and I say I hope you come to understand the unique and important and welcoming and supportive role of the legal community in my state, a place you do not know but now have raised your hand to serve.
▶ 0:54:54Sen. Coons: I welcome the chance to question you again -- today but I say I will pose your nomination.
▶ 0:55:01Chair Grassley: I'm gonna put most of my statement in the record, but I want to read some names that are precedent for what you talked about. We have katzman, new york second circuit. Neil gorsuch, obviously when he was on the 10th circuit.
▶ 0:55:26Chair Grassley: T.judge beebe, got both senator reed and senator anson to return the blue slip for them. Allison risching is another example.
▶ 0:55:47Chair Grassley: Judge julie who lost the seat on the third circuit and never practiced in massachusetts, but senator warren and senator markey back to her anyway and the senate confirmed her. So, those are some examples that I will put in the record. There is a famous speech by senator tillis, begging the committee democrats to respect his objection to circuit domine ryan parked -- ryan parked.
▶ 0:56:23Chair Grassley: This is what senator tillis said. "I am wondering what thom tillis needs to show up in the tru administration, the thom tillis that was here the last time and try to work with you all on some judges, or the thom tillis that reflectively votes no?
▶ 0:56:41Chair Grassley: I will tell you the same thing next year when the roles are reversed, you are either going to make my job harder by doing the right thing and respecting your colleagues today, or you are going to make my job easier because I am going to just go right down the line with the administration, so tt is the end of that. And now we are ready.
▶ 0:57:12Chair Grassley: Would you, professor, please come to the table. Do not sit down right away, because I would like to swear. Do you swear that the testimony that you are about to give before this committee will be the truth, the whole truth and nothing but the truth, so help you god? Thank you. Now, you can make your opening statements and introduce anybody that you want to introduce who is here or not here in support of you.
▶ 0:57:43Chair Grassley: Please, push the red button.
▶ 0:57:45Ms. Mascott: Yes. Thank you Mr. chairman and to the committee for having me here today. I want to thank president trump for the honor of his nomination to the seat on the U.S. court of appeals are the third circuit and for the opportunity of a lifetime to serve as a lawyer again, now in the second trump administration. I also want to thank the many mentors and elected judges that I clerked, justice thomas and cavanaugh.
▶ 0:58:14Ms. Mascott: Thank you to senator mcconnell for his warm introduction and I'm grateful earlier in my career to serve as a staffer as the senate and house sides of the hill and during part of that time frame member of the kentucky delegate -- kentucky delegation. I want to thank members of my family and longtime friends and colleagues who are here and introduce my family. I want to reflect on several key figures not here. My parents, who had children later in life.
▶ 0:58:44Ms. Mascott: They were wonderful people and made me so mu of who I am today. My dad was a minister and help raise funds for a number of international nonprofit religious organizations in africa and indiand introduced us to people around the world. My mom had been a high school english teacher. And before they had children of their own they helped raise foster children. They taught the value of hard work, excellence, determination and a love of learning.
▶ 0:59:13Ms. Mascott: And they esteemed public, helping develop and ask -- an extreme respect for the freedoms of this country. And then my husband, jeff. He passed away from pancreatic cancer two years ago. He was clever and devoted to his family and his god. He became a young leader in our church and was a great man and father and his affection taught me and our children a bit of what it means to be adored and deeply known.
▶ 0:59:42Ms. Mascott: We were young and after I finished high school at 16 we were met in college and married soon after we finish school. We sold one of our cars to pay the security deposit for our first apartment on the hill and then with ingenuity he brought us to where we are today. Here with me are our four children, courageous, kind, compassionate, strong and so much fun.
▶ 1:00:08Ms. Mascott: And my parents-in-law, career long educators in the montgomery and howard county public school systems who have become father and mother to me. My brother-in-law, an elementary school principal plans to be shortly after he finishes meeting with the school superintendent tort the school year and my sister-in-law, a blue hen graduate of the university of delare and a public school educator generously took the time off to attend today.
▶ 1:00:38Ms. Mascott: It would be an unbelievable honor to enter judicial service and a gift of the kind of opportunity that in many ways can only happen in the system we have in america, that provides immense opportunity for education and service and the selection of one's own profession. Mine was not a family of lawyers, but one grandmother was a first daughter and her family to finish high school as I understand it.
▶ 1:01:03Ms. Mascott: One grandfather stayed in school through the eighth grade and the other was orphaned in his teens and join the army and eventually became a short-lived professional boxer and baptist minister. Enough -- a number of cousins has served in a local law enforcement and I would value the opportunity to continue the tradition of public and community service if this body were to vote to confirm me. Thank you and I look forward to your questions.
▶ 1:01:28Chair Grassley: I thought you were going to introduce people that were here or did you?
▶ 1:01:33Ms. Mascott: My in-laws and my children, thank you, chairman.
▶ 1:01:38Chair Grassley: Thank you. Professor, you had a rare opportunity to clerk for not one but two justices on the supreme court. Justice thomas and then judge gorsuch on the 10th circuit. What did you take away from the is about the proper role of a judge?
▶ 1:01:59Ms. Mascott: I am deeply honored to have been able to serve both alongside, for and later teach with justice thomas and cavanaugh when he was on the D.C. circuit judge and they both brought a lot of humility to the service on the federal bench. And an understanding of the limited role in our system of a federal judge, to decide concrete cases and controversies.
▶ 1:02:29Ms. Mascott: And look deeply at the public understanding. And look at the constitution and statutes and fairness and humility without favor to any particular party.
▶ 1:02:41Chair Grassley: You directed litigation clinics where students work upon appellate briefs before the supreme court. What did you learn from mentoring students and how did that shape your approach. And how that affect your approach to complex appellate cases.
▶ 1:03:11Ms. Mascott: It was great to teach students and I was so happy to come in and see several former students working here as staffers present working for you all. In continuing a great tradition of service. With the work particularly in founding the student litigation clinics focused on issues of separation of power, those were great opportunities to help students get practical experience in looking at important constitutional issues.
▶ 1:03:42Ms. Mascott: The clinics have the honor we believe in your opening remarks and even filing amicus briefs on behalf of members of this committee and sometimes even for as many as 100 members of ngress dealing with important cases such as student loan payments and the reverse chevron doctrine and other issues cutting across all three branches.
▶ 1:04:08Ms. Mascott: The important role of freedom and limited government which is a tradition and I know this committee is working to uphold as well. Chair l.
▶ 1:04:14Chair Grassley: You have been before congress many times as -- onfore congress many times as -- on ore congress many times as -- on topics gress many times as -- on topics ranging ny times as -- on topics ranging from mes as -- on topics ranging from executive privilege to thee role of federl courts, and administrative law. How has that experience shape your perspective on the judiciary's role in our system of separated powers?
▶ 1:04:35Ms. Mascott: I was grateful for the opportunity in this committee and also on the house judiciary committee to testify in number of times in the confirmation hearings for two supreme court justices on the issues of regulatory law and executive privilege and with the often exacting questions it was an opportunity to see how this body unpacks legal questions and is dedicated to its role in our
▶ 1:05:07Ms. Mascott: System, which in article one is really preeminent with policymaking and establishing rule of law, preserving freedom and I'm grateful that the committee brought me into a back issues not with only help the three branches interact but how the federal government's limited role preserves freedom of the states to be able to govern people and preserves freedom of families and religious institutions. And folks in lower communities.
▶ 1:05:36Chair Grassley: I talked to my opening statement about how your scholarship has en cited by the supreme court in more than one opinion, and you have even be referenced by name during oral arguments. How■ has your experience as a professor and scholar influence the way you would approach precedent has a judge?
▶ 1:05:58Ms. Mascott: The opportunity to study, to teach, and right on the constitution is foundational. It has really increased even more my love and respect for the document, our freedoms, and prided a of opportunity to dig deep in the history of understanding the meaning of the text and phrases.
▶ 1:06:22Ms. Mascott: And how the founders in drafting and then ratifying among the state ratification conventions were focused on preserving liberty and freedom and wrestling with accountability for governmental actors, and focusing on the preeminence of elections.
▶ 1:06:38Chair Grassley: Senator durbin.
▶ 1:06:39Sen. Durbin: Thank you. Welcome back. I am glad you are here today. And congratulations on your nomination. You clerked for justice thomas on the supreme court and also ndtestified before this committe against the supreme court ethics reform legislation at a hearing in june of 2023.
▶ 1:07:04Sen. Durbin: That followed investigative reporting that showed that clarence thomas received and failed to disclose gifts worth millions of dollars with some estimates placing the value over $4 million. This was confirmed by exhaustive committee investigation and subpoenas and my staff and I conducted this lie was chairman of the committee. I have several questions I would like to ask you first.
▶ 1:07:30Sen. Durbin: If you are concerned -- confirmed, would you commit to abiding by all of the rules and regulations of judicial ethics including the code of conduct.
▶ 1:07:41Ms. Mascott: Absolutely, I would be committed to all ethics requirements.
▶ 1:07:45Sen. Durbin: I am going to assume and less you said otherwise you had no personal knowledge.
▶ 1:07:51Ms. Mascott: Senator, that is correct. I was his law clerk. Yes.
▶ 1:07:58Sen. Durbin: You came before this committee to testify on an effort we are making to try to establish a code of ethics for the highest court in the land. We know there is a code of ethics that applies to federal judges other than the supreme court and how it is and isn't -- it is in forest and we are trying to write something that would apply to the supreme court justice thomas or any others who have millions of dollars of undisclosed gifts.
▶ 1:08:26Sen. Durbin: You came and testified against our legislion and I will ask you a general question. How do you believe the supreme court should be governed when it comes to ethics?
▶ 1:08:33Ms. Mascott: I was grateful to have the opportunity to come back at that time during a challenging time. Just on your earlier questions, I just need to say again how honored I was to serve as a law clerk for justice thomas and I have the deepest respect for him, his character a integrity. I appreciate your question about the proposed legislation.
▶ 1:09:00Ms. Mascott: In my recollection of my testimony on that act and I might have been the only republican witness in the committee testifying that day and I could be wrong. We were talking about the various constitutional or not aspects of the bill.
▶ 1:09:19Ms. Mascott: My testimony focused not on policy questions of ethics, but, some of the particulars in the act like the lower court panels sitting to evaluate recusal decisions of supreme court justice is and I was pointing out that in our system that has the preme court vested with judicial authority at the top of article three that there were real constitutional questions out allowing inferior judges as referred to in the
▶ 1:09:50Ms. Mascott: Constitution to sit in judgment of any decisions of the supreme court and there were also a lot of open questions in our system about the way that ethics decision shoulde adjudicated. I do not recall commenting on the policy of the justices' decision to flow recusal's.
▶ 1:10:11Ms. Mascott: My idea is that even though it is not covered statutorily in the same way by its own statements and commitments, upholds the statutory recusal requirements in the same way and same rigor that lower courts do.
▶ 1:10:24Sen. Durbin: When it comes to constitutional compliance, do you believe that receiving millions of dollars in gifts and not disclosing them is in the vested interest of the constitution?
▶ 1:10:36Ms. Mascott: I do not mean to comment first on the premise, my recollection is that all reporting requirements were dealt with and addressed. The constitutional question and I think the provisions in the bill that iecall that where the focus of my testimony were about how these types of requirements are to be enforced.
▶ 1:11:01Ms. Mascott: The supreme court and I think a statement by chief justice roberts emphasized how devoted the supreme court and every justice is to complying with the compliance requirements. The main questionsere which actors in our system are responsible for making sure that those agreements are followed and questions about how two coequal branches are supposed to over -- to interact and lower urt judges interact with
▶ 1:11:31Ms. Mascott: The superior court judges.
▶ 1:11:32Sen. Durbin: Ihink the hereputation is important enough to consider new ideas of enforcement. Current rules do not work. There are too many gifts that go undisclosed to the justices service on the highest court of the land. The supreme court of the united states should not have the lowest standard of ethics. And when you testified and as you mentioned you were the only one who testified against the bill for reform it left a lasting impression for me.
▶ 1:12:03Sen. Durbin: I respect your education and what you have achieved, it is remarkable. This is one question that remains unanswered as far as I'm concerned. >> missive -- Mr. chairman, point of order, could you ask your team to either turn up the air conditioning or build a fire?
▶ 1:12:24Chair Grassley: Somebody has heard the request. Senator lee.
▶ 1:12:29Sen. Lee: Thank you very much. A pleasure to have you here and we are grateful to havyou here. On this last point I think it is important to remember the separation of powers matters. We are talking about a coordinate branch of government.
▶ 1:12:47Sen. Lee: The supreme court of the united states unlike the lower courts is not a creation of the congress and we determine its size, but we cannot relegate that into nonexistence as we theoretically could do with any of the inferior courts. When we are talking about the apex of a coordinate branch of government, the question is not whether to have those standards in place but who sets them. And who does not.
▶ 1:13:18Sen. Lee: And that is not a question of whether is not a question of whether you not a question of whether you want question of whether you want rules ion of whether you want rules to of whether you want rules to apply. They have rules, but it is rules that they themselves have adopted consistent with existing federal law. You have been nominated for the third circuit court of appeals which is near and dear to my heart since I served back during the will m howard taft administration and I enjoyed that immensely.
▶ 1:13:43Sen. Lee: As you approac this role, how would you go about interpreting text, statutory or constitutional bull as that is the single most distinguishing feature of the judicial role.
▶ 1:13:55Ms. Mascott: So, in looking at statutory and constitutional texts, I would be looking for the plain meaning or public understanding of the text before the court in that particular case. And this body knows thatt always include starting with the text itself.
▶ 1:14:16Ms. Mascott: Not just the text of the word in isolation but understanding whher the phrase is a legal art and looking to the surrounding provisions and looking how the word is used in other legislation and another important point is the timing of the meaning of the phrase would be relevant based on the time the document became law. So for a statute at the time it was enacted and the constitution at the time it was ratified by state conventions.
▶ 1:14:44Ms. Mascott: And, if there are still questions to get backgrounds, other times people will use the evidence of outside sources to understand what the common understanding of the text would have been. In my work, the stanford law article is the most emblematic of a deep look of a constitutional phrase.
▶ 1:15:04Ms. Mascott: I looked at dictionaries at the time of ratification and used a technique that was coming into use at t time called corpus linguistics put forward at brigham young university to look at thousands of uses in ordinary or illegal language of how a word is used to further understand the meaning and the importance is toexactly what ded meaning has given legal impact by the folks voted on the text at the time, which is why one
▶ 1:15:36Ms. Mascott: Wants to understand not only how the decision-makers themselves but the public more broadly understood it. It is not about the end of agile mind of the legislature but the objective meaning of the text in the document.
▶ 1:15:45Sen. Lee: I can't wait to tell my brother about corporate linguistics, especially at a byu. That is important we talk about that approach looking at the original public meaning at the time a passage or ratification of the constitution or subsequent amendment thereto is important and that does matter. That is exactly what matters.
▶ 1:16:12Sen. Lee: Insofar as the meaning of the text is plain and clear on its face, it igoing to be an easier test where lawyers are in their fee and judges to their best and hardest work.
▶ 1:16:26Sen. Lee: Of those things where it is not plain, what are some of the things you would look to to resolve ambiguities in particular to what extent is it hel■ful to gain insight into statements perhaps reflecting particular subjective viewpoint of a particular lawmaker on something? By that, iean statements made.
▶ 1:16:50Ms. Mascott: As an attorney the office of legal because of the department of juice, this was the kind of question we often received. In my experience, it should take a lot to reach the conclusion the text is truly a vigorous. A lot of hard work should be looking at that phrase in advance and is a mission before dictionaries and other sources. You ionaries and other sources. You mention and other sources. You mention the other sources. You mention the particularrces. Statements of law makers, what was sometimes called legislative history. It.
▶ 1:17:19Ms. Mascott: It is a collection of statements of what piece of evidence, perhaps ok, but there would never be an instance where the intent of one individual person would have legal impact on many of the text because the constitution article made this whole body responsible for enacting text institutionally and not just one by one.
▶ 1:17:40Sen. Lee: I other words, even if you could take one of those statements and even so far as one of the statements evidenced subjective intent on the part of at lawmaker, that isn't releva regardless of whether they subjectively relieve that unless that was somehow consistent with the original public understanding of it that really has no bearing.
▶ 1:18:07Ms. Mascott: Correct.
▶ 1:18:10Sen. Lee: Thank you.
▶ 1:18:12Chair Grassley: Professor, are you a member of the delaware bar?
▶ 1:18:16Ms. Mascott: I am a member of the virginia and maryland bars is a long public servant.
▶ 1:18:23Chair Grassley: Have you ever practiced law in delaware?
▶ 1:18:27Ms. Mascott: I am admitted to the third circuit.
▶ 1:18:32Chair Grassley: Have you ever practiced law in delaware? Ms. mascotti have not. I have just in this area.
▶ 1:18:38Chair Grassley: If you made any in the federal or state court? >> >treaty says yes and no questions, professor. Have you ever filed a brief and at a lower court?
▶ 1:18:53Ms. Mascott: I did in the third circuit. As your questions point out, as the president's nominee to the third circuit, I have been nominated to see my custom that is within delaware and would look forward if this body were to confirming in joining the legal community specifically in delaware. I would plan have chambers -- right now my practice has been as an academic here in washington, D.C. as a public servant.
▶ 1:19:18Ms. Mascott: >> a record of scholarship and public commentary, advocacy is quite lengthy but I'm concerned your actual practice is quite short. How many depositions have you taken or defended?
▶ 1:19:32Ms. Mascott: As an appellate lawyer --.
▶ 1:19:37Sen. Coons: How many have you argued?
▶ 1:19:40Ms. Mascott: Mostly at the appellate level so I have filed dozens of appellate briefs. I did argue to verdict as the record shows a district court case defending the title ix department of education and so have argued both district and appellate courts on behalf of the feral government.
▶ 1:20:03Sen. Coons: My point is that third circuit's docket is substantially made up of criminal cases, bankruptcy cases, patent cases. Very little in terms of constitutional administration of law which is your specialty.
▶ 1:20:17Sen. Coons: You have been nominated to essentially rule on appeals from the district courts in particular the district courts of delaware in this long, long tradition of states getting to choose a member of their bench and there bar to go to a circuit is so the values and the tradition and legal concerns of that state are most respected. That removes your substantive work. -- let's move your substantive work. My concern is our framers drafted a constitution in order to get constrained powers.
▶ 1:20:49Sen. Coons: Separation of powers, which you taught. They put congress as the articlei branch come at the present because they we principally concerned about constraining an overreaching executive we had in a brief you filed, challenging present biden's effort to cancel student debt, wrote the power of the purse is congress most potent checks in the executive branch.
▶ 1:21:13Sen. Coons: I asked you yesterday if you had ever advised the white house on impoundment issues, whether president trump could refuse to spend money congress has appropriated. You said you had. Did you advise the white house president trump can refuse to spend money legally appropriated by this body?
▶ 1:21:30Ms. Mascott: Senator, I appreciate your question reference to article I and appropriation. We talked about that a bit yesterday. And also having clerked for judge kavanaugh, he is a former executive branch lawyer also pointed out the president's role in having to sign off or veto legislation.
▶ 1:21:53Ms. Mascott: The particular question you talked about -- I believe -- I recall in our discussion that I had mentioned that I had not been working on that issue recently, that I was asked a discrete question actually prior to the start of the administration on the constitutional question were related to that topic. But beyond that, sitting here today, as a judicial nominee with some of these issues playing out in the court as we speak, I cannot comment further on the question.
▶ 1:22:24Sen. Coons: You publicly stated march of this year that the supreme court's 90-year-old humphreys executive case was wrongly decided. You stand by that statement?
▶ 1:22:32Ms. Mascott: As an academic and I've taught other forms, I strongly stand by my past work. Sitting here as a judicial nominee, I also mentioned sterday a number of times is my commitment as a lower court judge to fully and completely online supreme court precedents and also the case you mentioned humphrey's executor ithe supreme court's own writings has referred to in the past decade 10 or 15 years as a narrow exception to the broader principle the president investor with the executive power needs
▶ 1:23:03Ms. Mascott: To supervise the executive branch. I would apply all those principles fully.
▶ 1:23:08Sen. Coons: You are just in exchange with senator lee where you talked about the importance of healing toward the text. I think the federal trade commission act of 1914 could not have been clear. In fact, the hundreds executor decision was a unanimous decision by the supreme court and it has been respected not as a narrow exception but, frankly, the foundation of the boundary between the president and dozens of critical regulatory agencies.
▶ 1:23:37Sen. Coons: It prevents a president from whimsically removing based on partisan political or policy differences, something fdr was trying to do a member of the ftc . Yesterday, the D.C. circuit judge reaffirmed the holdg of humphreys executor. Why should we have confidence that we can count on you to uphold this 90 year precedent that just months ago you argued was wrongly decided?
▶ 1:24:02Sen. Coons: Will you recuse yourself from cases applying that precedent given your advocacy for its reversal?
▶ 1:24:08Ms. Mascott: If I were to have the honor of this body to confirm me, I would follow all statutory recusal requirements and I understand one of those requirements to be terry crews -- recuse from particular matters on which I would have worked and also cases where I might have a financial interest at stake and of course I would fully comply with al statutory recusal requirements.
▶ 1:24:31Sen. Coons: Do you think congress can constitutionally restrict the removal of any official in the executive branch on any basis, whether it is for inefficiency or neglect of duty or malfeasance? As is currently being hotly contested, there are critical boldaries between article I and ii powers and you have been a relentless activist on behalf of expanding the scope of executive power. Is there any way congress can restrict removal of any execive branch official?
▶ 1:25:01Ms. Mascott: The contours of the constitutional power of congress to constrain the president supervisory power or to fashion character six on the controversy of the institution of offices is currently being contested in courts. So I'm not able to speak to the absolute merits on that question. We did discuss congress's role in fashioning and creatg offices.
▶ 1:25:29Ms. Mascott: We discussed the president's party supervise the executive branch. As I mentioned, if I would have the honor to be confirmed, fully and faithfully apply the text and structure of the constitution and decisions by the supreme court of which will be fully bound.
▶ 1:25:43Sen. Coons: You come from a great family. You have been a fierce, determined, cap double professor. -- capable professor. I appreciate your answers. >> senator kennedy.
▶ 1:25:58Sen. Kennedy: Professor, congratulations. I believe you testified that you think the constitution should be interpreted according to its original public meaning.
▶ 1:26:15Ms. Mascott: Yes, senator.
▶ 1:26:19Sen. Kennedy: What does that mean?
▶ 1:26:20Ms. Mascott: The original part of that phrase refers to the fact when we look at interpreting the text, wwant to interpret it --.
▶ 1:26:31Sen. Kennedy: Just answer my question. What does original public meaning mean?
▶ 1:26:38Ms. Mascott: It means that meaning the text as it was understood by the public at the time it became law.
▶ 1:26:46Sen. Kennedy: Ok. So you think brown v. Board of education was incorrectly decided?
▶ 1:26:55Ms. Mascott: Senator, I think brown v. Board of education was correctly decided. Scholars who have looked at the origin meaning of races at that time and the reasoning in that case --.
▶ 1:27:07Sen. Kennedy: How many people can the united states of america at the time the constitution was drafted do you think supported racial integration of schools? Do you think that was a majority?
▶ 1:27:21Ms. Mascott: Well, senator, at the time --.
▶ 1:27:27Sen. Kennedy: First, do you think that was a majority view? Do you think most americans at the time the constitution was drafted supported integration of public schls? Ms. mascott: I don't know as a sociological matter what rcentage of people thought what at that time. I should point out when we got to brown v. Board of education, of course there have been several --.
▶ 1:27:51Sen. Kennedy: Isn't that inconsistent with your statement that you have to interpreted according to original public meaning?
▶ 1:27:56Ms. Mascott: What about the 14th, 13, 15 amendment? That would mean we would terpret those protections with the understanding of the text and structure at the time those amendments were ratified which is different in the 19th century.
▶ 1:28:11Sen. Kennedy: Let's go back to brown beaver -- brown v. Board. I think it was quickly decided and I think you do too. But if you say interpret the constitution according to the way people at that time understood it, do you really think that people at that time in america supported racially integrating schools? Do you really believe that?
▶ 1:28:39Ms. Scott: I think at the time of the ratification, 13th, 14th, 15th minute --
▶ 1:28:47Sen. Kennedy: Do you think people at that time supported inbred schools?
▶ 1:28:49Ms. Mascott: I don't know it as a policy matter if they were thinking about that particular issue. I think they certainly understood the 14th amendment for which a massive part of this country essentially lost lives in the civil war certainly understood it to require --.
▶ 1:29:07Sen. Kennedy: You not answering my question. I'm trying to understand how you think. It is very easy to say we interpret the constitution according to its original public meaning, which I appreciate your testimony, it means the way people who read the constitution at that time interpreted. Is that right?
▶ 1:29:28Ms. Mascott: Yes, senator.
▶ 1:29:33Sen. Kennedy: Do you think most people at that time looked at the unit states constitution and said, well, here it is, the biggest dallas, racially integrated schools are required. Do you really believe that?
▶ 1:29:47Ms. Mascott: I don't know --.
▶ 1:29:51Sen. Kennedy: I don't think you do because historically that wasn't the case. So how do you square that with the whole brown the?
▶ 1:29:59Ms. Mascott: I think there were several steps that have not come up yet in our conversation which is that you look at the text and structure which the 13th, 14th, 15th amendments clearly is requiring racial inequality and then over time, that has to be -- racial equality, and then over time it has to be applied to context.
▶ 1:30:21Ms. Mascott: The requirement is all races be treated equally unr the law and the evidence shows seegated schools is not doing that, then the requirement could be applied to integrate schools.
▶ 1:30:31Sen. Kennedy: Would you interpret the statute, you talked about interpreting according to its lane meeting. What the statute is ambiguous?
▶ 1:30:41Ms. Mascott: 50 statute --. If it is ambiguous on the question coming before the court, I start with that phrase but I also look at the context of surrounding provisions.
▶ 1:30:54Sen. Kennedy: No, how -- I understand you define ambiguity as the s the language plus surrounding which. I get that. How ambiguous does it hav dto be? 51% ambiguous or just a little bit ambiguous?
▶ 1:31:10Ms. Mascott: So I have to say I would use the same approach essentially in all cases regardless of the ambiguity. Because I would always start with the text, move to this running prisions with the aim of pulling understanding what congress -- fully, said the president had enacted.
▶ 1:31:29Sen. Kennedy: I'm going to run out of time. With respect come answer my question. You're given the professor talk. How ambiguous it doesn't have to be?
▶ 1:31:38Ms. Mascott: I think under the supreme court's recent precedent, underscore at the court can never just rest and say it is ambiguous. The court has to come up with an answer.
▶ 1:31:51Sen. Kennedy: So why don't you just look at legislative history?
▶ 1:31:55Ms. Mascott: You can't look at legislative history statemes one by one.
▶ 1:31:59Sen. Kennedy: Why not? Mascot with respect, because this body has a role in our system as an institution not when I one.
▶ 1:32:09Sen. Kennedy: This will be my last question, sorry. Coons went way over. So you are telling me it doesn't help you at all to go through and look at the congressional record, committee reports, or any of that? You don't think that is helpful in determining whether statute means?
▶ 1:32:26Ms. Mascott: It depends on the way it is being read. It gives statutory history, if it helps to refer to other portions of context, sure. But not to give it legally binding impact in and of itself. I would always be looking at a broad range of sources and use each of these statements as just one piece of evidence about what people understood the statute to be in at the time. No, I would never take a piece of lislative history in isolation and give it legal impact.
▶ 1:32:55Sen. Kennedy: Thank you, madam chair. >> senator blumenthal.
▶ 1:32:59Sen. Blumenthal: Thank you. Congratulations on your nomination. I would say prior to the dobbs decision you were pretty zealous advocate of overruling roe. Is that correct?
▶ 1:33:17Ms. Mascott: I don't recall ever advocating for the overruling of roe.
▶ 1:33:25Sen. Blumenthal: I think in december 2021, said "most constitutionally correct decision -- the most constitutionally correct outcome in dobbs would be for the court to conclude the 14th amendment due process clause I guarantee of process protections contains no substantive right." is that your position?
▶ 1:33:50Ms. Mascott: Yes, my scholarly and academic work would have been consistent with the outcome of the dobbs decision. An understanding they are not to be a substantive due process clause in the 14th amendment.
▶ 1:34:05Sen. Blumenthal: You call the draft of dobbs when it was leaked in may 2022, "a marvel of a draft." do you think it is a marvel of a draft? It became this court's decision and its opinion in the case, correct?
▶ 1:34:29Ms. Mascott: It did. I have spoken highly of the dupp decision as I spoke briefly to the senators that I would faithfully and fulfilling apply the corporate -- I think some of the stements by the first happened again in a hearing by this committee because as I recall, there was a subcommittee hearing on senator whitehouse's ethics reform bill the morning after the opinion
▶ 1:35:01Ms. Mascott: Was leaked. This committee was asking for --.
▶ 1:35:06Sen. Blumenthal: You called it a marvel of a draft.
▶ 1:35:09Ms. Mascott: I also wrote in a book with the wall street journal."
▶ 1:35:12Sen. Blumenthal: About roe, he said it was networkable and "really sad, for out of the mainstream of constitutional reasoning of the court over the past few decades." you said roe was out of the mainstream after it was well-established and will accept the law for decades?
▶ 1:35:37Ms. Mascott: Well, senator, yes, consistent with the supreme court so majority holdings in dobbs which pointed out that even using traditional stare decisis factors, the roe v. Wade decision was not one that merited the court stare decisis effect.
▶ 1:35:51Ms. Mascott: Because of the development of the law over time, the fact the supreme court itself had distance itself even follow decisions about abortion from roe reasoning and pointed out the courts additional approach led to additional -- leaving the policy decision to the states
▶ 1:36:08Ratesen. Blumenthal: Apology to interrupt. I have limited amount of time. You were asked also about dobbs and you in effect dismissed concerns that dobbs would affect other substantive due process cases and you id, "loving versus virginia contraception, those are so far away from the
▶ 1:36:38Ratesen. Blumenthal: Court's decision in dobbs that they almost should not even be I think discussed in realistic sense at this point in time based on this particular decision." so you do not view dobbs as impacting in any way loving versus virginia or contraception cases?
▶ 1:36:58Ms. Mascott: No, I read the court in dobbs to be very specifically grappling with the issues before it and lookg case-by-case at the relevant history of its own reasoning in that line of cases. And I think the court of the majority opinion made that clear and also concurring opinions that underscored it, senator.
▶ 1:37:19Sen. Blumenthal: You see dobbs not requiring or implicating the potential reversal of those other decisions.
▶ 1:37:26Ms. Mascott: That is correct. As you know, the only reason a case even gets to the supreme court is if the people have litigated it. I think the point I was making, the comments you referenced, dobbs was very specifically oriented toward one line of cases being litigated at that time. Thank you.
▶ 1:37:45Sen. Blumenthal: Let me ask you one other area. I think you have been an active member of the federalist society?
▶ 1:37:58Ms. Mascott: Yes, senator.
▶ 1:38:00Sen. Blumenthal: You received the joseph story award demonstrated excellence in legal scholarship and made significant public impact in a manner that advances the rule of law in a free society?
▶ 1:38:14Ms. Mascott: I was honored to get that. Yes, senator.
▶ 1:38:19Sen. Blumenthal: I'm sure you are aware that president trump has attacked the federalist society claiming it gave him bad advice on his judicial nominees and has called his founder leonard leo a sleaze bag. Do you agree with president trump' criticisms of the federalist society?
▶ 1:38:37Ms. Mascott: Senator, I believe your statement is touching on judicial nominations and president trump alone is responsible for nominations and other than that -- I'm happy to answer questions about my nomination but I have, as you pointed out, significant background with the federalist society and was honored to receive and was honored to receive the was honored to receive the award.nored to >> senator blackburn.
▶ 1:39:06Sen. Blackburn: Thank you. Before I ask my questions, I do want to make a comment. Chairman grassley touched on this at the beginning of the hearing.
▶ 1:39:21Sen. Blackburn: It is so disheartening and actually it is almost laughable to hear our colleagues on the other side of the dais complained about lack of concentration with the white house -- consultation with the white house.
▶ 1:39:38Sen. Blackburn: Under president biden, there were numerous members and senator grassley talked about, mentioned senator tillis also this morning and me and senator hagerty that were not consulted at all.
▶ 1:39:54Sen. Blackburn: And there were not one, not two but three judicial nominees that the biden white house moved forward on without working with senator herty and me. My colleagues across the dais had the opportunity tsay something about those actions at that time and they chose not to.
▶ 1:40:23Sen. Blackburn: They all wt along with what they felt like was the position of the white house. So I find it, as iaid, concerning, disheartening, and really curious as to why they would take the position they have.
▶ 1:40:48Sen. Blackburn: Professor mascott, I want to give you a chance to respond to some of the claims that I have heard from my colleagues across the dais that you're not qualified for the role. And I found it very interesting hear them talk about this because they rubberstamped people that were brought forward by the biden administration who were blatantly unqualified.
▶ 1:41:21Sen. Blackburn: And they were inexperienced judicial nominees. And I think that your credentials speak for themselves. I noted that you achieved the highest gpa at george washington law school, the highest in history. Which is significant.
▶ 1:41:46Sen. Blackburn: And of course, your clerkships which have been discussed this morning. And you have he senior positions at the doj. You have spent years as a professor in constitutional and administration of law. And your list goes on and on the so speak for a moment about why you are ready, why this has prepared you.
▶ 1:42:18Sen. Blackburn: -- prepared you to be a fair and unbiased judge.
▶ 1:42:20Ms. Mascott: Thank you so much, senator. I am honored by president trump's nomination to a seat on the third circuit and this committee's considerats n. As has been mentioned by some other senators and senator mcconnell, I've had the honor of being a public servant and working on all three branches of government, multiple positions.
▶ 1:42:43Ms. Mascott: Have been really grateful to serve for many years as a law professor teaching students, some of whom are even working here today as committee staff. During that time, being able to file dozens of amicus briefs sometimes on behalf of senders in this room -- senators in this room and working as an attorney in the department of justice and now the white houson issues, separations of powers, testifying in this committee.
▶ 1:43:09Ms. Mascott: And if I were to have the deep honored to be confirmed by this body, I would in every case bring exacting rigor and care and acknowledge the role of the judge as a very limited one in our system to resolve just -- cases on questions that are brought before us for this jurisdiction.
▶ 1:43:29Sen. Blackburn: I wanted to talk with you a little bit, your written several pieces on the presidential constitutional authority to remove executive officers. I noted your law review article in 2018 who are officers of the U.S.
▶ 1:43:54Sen. Blackburn: And I know that there is discussion around the president's ability to remove these officers from administrative agencies. I know you can't talk about specifics, but top generally about the state of the law when it comes to the president's constitutional removal power.
▶ 1:44:19Ms. Mascott: Thank you. I want to be careful sitting as a judicial nominee now and not in academic in addressing issues that are in a very real way before many courts in many cases across the country. But as you referenced, those pieces of the stanford and others, that the constitution vests executive power in the president and it is design because the president and electoral college is selected by the american people.
▶ 1:44:49Ms. Mascott: And that the president duty to carry out the power of the idea that that includes within it the supervisory power. And we would never want in our system of government anyone really to be exercising policymaki power who is not accountable back to the people. That just raises questions about if there are full tenure position -- protections whether individuals might be at some point to insulate from the political system in presidential supervision for it to be consistent with the constitutional structure.
▶ 1:45:18Sen. Blackburn: Thank you. >> professor mascot, welcome. Is it fair to say you have further little actual litigation experience outside of serving as amicus counsel? Ms.
▶ 1:45:36Sen. Blackburn: Mascott: well, senator, as I believe the questionnaire points out, and also -- that was quite extensive experience with dozens of amicus briefs sometimes her senators here. >> that actually trying cases. Have you ever tried a case, been lead counsel in a case that was tried to verdict?
▶ 1:46:02Ms. Mascott: I believe that letter submitted yesterday talking about the district of massachusetts matter that I argued. It was the summary judgment, collapsed into one hearing and argued that to verdict on the title ix department of also had the honor to argue appeals during my time at the department of justice. And have served in all three branches of government. >> with respect to your connections to delaware, have you ever voted in delaware?
▶ 1:46:32Ms. Mascott: As I was discussing with senator coons, we have had a long time --. >> I prefer if I did not get filibustered. Have you ever voted in delaware?
▶ 1:46:46Ms. Mascott: As a public service and professor here, no. I have been voting in maryland. >> [inaudible]
▶ 1:46:53Ms. Mascott: Sf public servant and academic, I am registered to vote here. >> any other record of licensing from the state of delaware?
▶ 1:47:02Ms. Mascott: I do not yet have a delaware drivers lense. I do have a car that is insured in delaware. >> give a summer time house?
▶ 1:47:14Ms. Mascott: Yes. >> you are not admitted until may into the third circuit?
▶ 1:47:20Ms. Scott: I became admitted in may, yes.
▶ 1:47:25Chair Grassley: No blue slip from either of the senators from -- Sen. durbin: no blue slip from either of the senators?
▶ 1:47:33Ms. Mascott: I am honored to be the president's nominee. I did not believe there were blue slips at the circuit court level. For any circuit court nominees.
▶ 1:47:45Sen. Durbin: That was undone by our friends on the other side of the aisle and now that is the new tradition. I'm clarifying that you have none, correct?
▶ 1:47:56Ms. Mascott: Senator, I don't because it is not the new for circuit nominees.
▶ 1:48:01Sen. Durbin: As general counsel withdrawn when, today?
▶ 1:48:05Ms. Mascott: I believe it was referenced it wasesterday.
▶ 1:48:10Sen. Durbin: Ok. You are on the board of the new civil liberties alliance I believe at the time when jeffrey clark was hired. Do you recall that? Stucco senator, I don't know what you mean by recall the hearing.
▶ 1:48:27Sen. Durbin: I was on the board of the new civil liberties alliance and up through about july 2021 and as I recall what happened around that time is that -- and I talked with the director about it, I stopped being a board member. They were bringing litigation that involved an opinion that I had written at the oice of legal counsel and executive branch and I strongly disagreed with their stance in that litigation.
▶ 1:48:56Sen. Durbin: It was actually bringing the opposite view. I expressed --. >> t hiring of jeffr clark.
▶ 1:49:02Ms. Mascott: I guess my point is is a member of the advisory board, first of all of the group, I would not have had anything to do with it. >> you are unaware of it.
▶ 1:49:11Ms. Mascott: I read newspaper accounts of his hiring. As a board member -- . >> youeren't consulted by him? You did not interview him?
▶ 1:49:24Ms. Mascott: It was like a 24 member advisory board, a couple dozen people. No. >> got it. You constantly use the pejorative term administrative state. You have called for the repeal or the overturning of humphrey's executor. You have called to undo chevron deference.
▶ 1:49:53Ms. Mascott: You have supported the so-called major questions doctrine. All of these signals are exemely important to the fossil fuel industry which has a cades long battle against agencies that regulate its pollution and which is the dominant tone of interest to the republican party which heavily
▶ 1:50:24Ms. Mascott: Funded the half billion dollar enterprise to capture the supreme court. How on earth can you expect anybody representing an interest opposed to the fossil fuel industry to get a fair hearing from you?
▶ 1:50:40Ms. Mascott: Senator, if I were to have the honor to be confirmed to the third circuit, as mentioned, would be upholding the role of a judge which is to resolve fully and impartially cases and controversies not rule on policy matters. If one looks at a record even of amicus briefs, these are cases at are deemed brought on legal principles and at times for parties that are holding different policy views.
▶ 1:51:11Ms. Mascott: I would continue to have the same tradition of imp■iality. >> Sen. schmitt: these were fishermen that through the administrative they were being forced to pay for the inspectors on the votes.
▶ 1:51:42Ms. Mascott: Boats. The leviathan of government that was aimed against them, including their pleas for help were ignored. I appreciate your position on as it relates to the administrative state more broadly but also your positions I thi as the importance of separation of powers. You are a national expert on that. I am very excited about your nomination. Congratulations.
▶ 1:52:04Ms. Mascott: Last year the supreme court overturned chevron deference doctrine and your gracious enough to participate in the ppst chevron working group. I have the report here which provides and outlines I think a way forward now that that deference is no longer with us, thankfully. In your view, what is the importance of that decision?
▶ 1:52:25Ms. Mascott: I think it was quite a significant way in which the supreme court looked rated that case, the text of the administrative procedure act which is this body knows governance procedural practices across administrative agencies.
▶ 1:52:42Ms. Mascott: And simply underscored and reaffirmed the idea that when statutory text the word court -- the court is supposed to look at the text as it was enacted by this body and signed by the president and not give a thumb on the scale in favor of the administrative agencies interpretation of the statute. Because during the administration -- administration agent own revelatory proceedings. But take a full and fair look at what the law text means.
▶ 1:53:09Se Schmitt: Is any law deference remain?
▶ 1:53:12Ms. Mascott: Not on questions of law. Sen. smitt and you will faithfully apply that decision is a third circuit judge?
▶ 1:53:21Ms. Mascott: Yes.
▶ 1:53:22Sen. Schmitt: Catholic university called the school of law, ran a separation of powers institute? Sen. why do you think -- justice scalia once pointed out dictatorial and communist regimes have a parchment paper extolling the importance of individual rights but it is the separation of powers that ultimately allows that to be
▶ 1:53:53Sen. Schmitt: Meaningful in this country. Why do you think it is so important?
▶ 1:53:55Ms. Mascott: The structure. I think the framers understood the decision needs to be divided among multiple people to keep those of us who went to serve and have power and accountable to ourselves so the federal level there are three different branches. But there's also the separation of powers vertically between the federal government and the states. And the policymakers are all a combo for elections back to the people and its corridor freedoms and liberty in our prosperity.
▶ 1:54:22Sen. Schmitt: Through that vertical and horizontal protection, it is meant ultimately protect individual liberty? A couple of final questions, in recent months, chief justice -- the chief justice have emphasized the need for lower court ized the need for lower court judges e need for lower court judges toneed for lower court judges to eed for lower court judges to givefor lower court judges to give or lower court judges to give someower court judges to give some wer court judges to give some level of presidential weight to supreme court emergency docket decisions.
▶ 1:54:56Sen. Schmitt: Interestingly, many democrat appointed judges are refusing to do that. I heard a lot during the initial confirmation process for my democrat colleues about how there were so concerned that president trump wasn't going to obey court orders. It turns out district court judges appointed by democrats with overtly partisan leanings refusing to obey orders from the supreme court. On questions that are four corners, no distinguishing. They just don't want to do it because I don't like president trump.
▶ 1:55:26Sen. Schmitt: As a third circuit judge, will you respect supreme court precedent an emergency docket decisions?
▶ 1:55:33Ms. Mascott: I will.
▶ 1:55:37Sen. Schmitt: You have any issues of overturning the lower court judge you on your read did not follow supreme court precedent?
▶ 1:55:44Ms. Mascott: Senator, I hesitate to say anything and although it suggests I'm giving an onion on a particular case but as a general matter, I would consider myself an appeals court responsible for following supreme court precedents myself and if I saw it not following a decision under my review to reach holding that is consistent stwith the supreme cou precedent and reversed the lower court.
▶ 1:56:08Sen. Schiff: If the lower court judge were ignoring the supreme court like my friends on the other side have wanted to juice of the public that president trump would do, which he is ever done, would have the courage in that moment to say to that lower court judge, you need to follow actual supreme court precedent ruling?
▶ 1:56:30Ms. Mascott: If I thought a lower court decision was incorrect, yes, I absolutely would reverse it. If I had jurisdiction. Make it with supreme court precedent.
▶ 1:56:42Sen. Schmitt: I think will be great. Thank you. >> senator klobuchar.
▶ 1:56:46Sen. Klobuchar: Thank you very much. Issues have been raised about delaware and like a lot of respect to everyone in this room for senator coons and his views of who should -- the ability th weigh in, who sh uld be a judge in the state. But I'm going to put that aside. I know that has been raised and I'm very concerned about that.
▶ 1:57:11Sen. Klobuchar: I went to lead with when senator schmitt was asking about and that is justice scalia's comment that our constitution separates powers to prevent the centralization of power in one person or one party because when power centralized in one person, the game is over. That is his words.
▶ 1:57:34Sen. Klobuchar: So president has claimed " I have an article ii why the right to do whatever I want as president." he said that as recently as august 26 he said, "on the right to do anything I want to do. I am the president of united states." do you believe the president is able to do "anything he wants to do"?
▶ 1:57:56Ms. Mascott: Senator klobuchar, of course -- it is not for me to comment on individual statements really by anyone else. The matter of presidential discretion as this body knows within article ii in the executive power, there are nuer of responsibilities executive has within which --.
▶ 1:58:21Sen. Klobuchar: Ok, ok, I'm asking if you thngk under our constitution, the president has a right to do anything, as he says, he wants to do? Ms.
▶ 1:58:29Mascott: I suppose -- I suppose depends on the context of remarks. With respect to my point if we're talking about a pardon decision, nomination decisions. There are many, many ways in which the president has full discretion.
▶ 1:58:46Sen. Klobuchar: But you will not say he doesn't have the power to do whatever he wants to do under the constitution. He said anything he wants to do. He said the right to do anything I want to do. That's what he said.
▶ 1:58:56Ms. Mascott: I guess I am saying that residential discretion depends on the context of the situation. You mentioned before separation powers. Of course let me talk about congress has a lot of power --. Civil kolbuchar you want to say it so I guess the answer is clear. Last october he said you believe "presidents are too weak." that was at yale.
▶ 1:59:25Ms. Mascott: The esent has unilaterally present appropriated funds, shuttered -- refused to put democratic commissioners on independent commissions, and post costly tariffs come to take individuals out to process come and gone after universities, law firms, journalist. Do you still believe "presidents are actually too weak" after these unprecedented power grabs?
▶ 1:59:55Ms. Mascott: Senator, without commenting on a lot of various actions and current issues that might be before the court or currently are, my recollection of the context of the statement that you quote was that it was a conversation about presidential supervision of the executive branch.
▶ 2:00:18Ms. Mascott: At that te, I understand the constitution remains to be that the president is vested with the executive power and therefore is in charge of the executive branch and I believe I was making comments on the historically -- supreme court itself has pointed out in different opinions, presidents have not always been free to fully supervise their branch.
▶ 2:00:46Ms. Mascott: I was putting forward a hope the constitutional principles as they are historically understood would continue to be respected.
▶ 2:00:55Sen. Klobuchar: We have had a number of horrific shootings in minnesota this year. You have praised justice thomas views on the second amendment which are often in disse even on a very conservative supreme court. What is your understanding of the second amendment and whether congress is permitted to pass laws to regulate the sale of guns?
▶ 2:01:20Sen. Klobuchar: I ask that because scalia actually said, the rit secured by the second amendment is not limited, the right to keep and carry any weapon whatsoever was not a right to keep or carry any weapon whatsoever. And thomas was the only one who ruck down law to stop domestic abusers from possessing a gun. Legislation I worked on.
▶ 2:01:44Sen. Klobuchar: It was one of two justices who would obstruct on regulations of ghost guns and in june 2025 he would taken the case challenging maryland -- marilyn assault weapons been. What is your view on your understanding of the second amendment whether congress is permitted to pass laws to regulate the sale of guns in any way?
▶ 2:02:04Ms. Mascott: Senator, I want to be careful. Not commenting on something that could come before me as a judge. I agree or would follow supreme court precedent that there is an individual right to bear arms. In looking on a case-by-case basis, important to look at the history and tradition of what the regulation of guns was. Was at that time. If a case came before me raising a question, I would be fully apply the supreme court precedent.
▶ 2:02:34Ms. Mascott: >> I would like to enter a letter into the record from 53 legal scholars. They write, "we are united in ou view professor mascott would be an outstanding addition to the federal judiciary. T professor mascot's impressive career includes service in all three branches of the federal government. Private practice and in the legal academy.
▶ 2:02:58Ms. Mascott: Her work has been cited not just by many scholars, but by judges at every level of the federal judiciary, including the supreme court. Some of us agree with her analysis. Others do not. We agree on the whole's academic work demonstrates sort of rigor and depth that will serve her well during her career as a judge. Senator wch.
▶ 2:03:26Sen. Welch: Thank you. Fetzer mascott, congress has -- professor mascott, is it your view congress has the authority to establish inspector general's that reviewed the appropriations and expenditures the congress
▶ 2:03:57Sen. Welch: Authorizes?
▶ 2:03:57Ms. Mascott: As with all the questions, answering and sick with general principles in case there would ever be a case before me raising questions related to inspector general. I don't understand there have been a general constitutional question raised about inspector general we had -- general.
▶ 2:04:20Ms. Mascott: I think with respect to the questi about their role in the system, as ientioned in prr discussions of executive power, it would of course be important the office to structured so that position is ultimately under the supervision of the executive branch and ultimately the president -- I reaze that races constitutional tension with the role of the inspector general to look at records. Hooks congress clearly has the right to appropriate funds.
▶ 2:04:47Ms. Mascott: It is a constitutional power. >> the power to funds, you can test the obligation that congress has to make certa there's oversight with the expenditure of those funds?
▶ 2:05:02Ms. Mascott: As the supreme court indicated precedent in the la couple of years, part of congress's legislative power, gas chemicals the ability to get records and to find out what is happening in the agencies --.
▶ 2:05:17Sen. Welch: You have some question as to whether congress in pursuance of that obligation to oversee the wise use of taxpayer money according to preparations congress made. Congress can't have inspector general that is doing that work for us on a daily basis on behalf of the american people? Us? I think converse can create an office that is responsible for accounting and keeping records and can ask for records.
▶ 2:05:43Sen. Welch: Executive fire the inspector general's, correct?
▶ 2:05:49Ms. Mascott: As a factual matter, I don't recall how many firings there had been. My question -- now we are getting into the specifics of things that could come before me if I were a judge.
▶ 2:06:26Sen. Welch: We have a responsibility in congress to appropriate funds treated correct. We have a responsibility to make certain that the funds that are appropriated and taxed paid for by the american people are wisely spent. You have a dispute with that? Ms. mascott clinic when we are talking about inspector general --.
▶ 2:06:49Sen. Welch: We are not getting an answer. I am acknowledging there is a tension but it goes back to what senator kolbuchar said. There is a tension because in the constitutional system, it was designed to have a tension so there would not be the concentration of power in one branch read the executive, legislative, judiciary. Let me ask another question.
▶ 2:07:14Sen. Welch: If congress has the authority to impose tariffs, and that is a constitutional responsibility and right we have, correc
▶ 2:07:23Ms. Mascott: Yes. Congress legislative responsibility --.
▶ 2:07:32Sen. Welch: Does the executive had the legal authority to impose a tariff because executive doesn't like what the judicial process is doing in a cointry like brazil?
▶ 2:07:41Ms. Mascott: The question of tariffs is --.
▶ 2:07:47Sen. Welch: I'm not asking just about the tariffs. Is there constitutional authority for an executive? Do decide to use the tool of the tariff because he disrespects and dislikes judicial policy in another country?
▶ 2:08:08Ms. Mascott: An act with broad discretionary language and tariffs within those statutes would of course be lawful.
▶ 2:08:18Sen. Welch: Who won the 2020 election?
▶ 2:08:20Ms. Mascott: President biden was certified the winner. President biden was certified the winner of the 2020 election.
▶ 2:08:31Sen. Welch: Did he win it or exit only get certified?
▶ 2:08:34Ms. Mascott: He was certified the winner of the election.
▶ 2:08:40Sen. Welch: I yield back. >> center shift.
▶ 2:08:45Sen. Schiff: You have appear before the commiee many times. The last time you were committee was for hearing entitled "when the president does it that means it is not illegal." at the time you described the decision as modest. I want to ask about the modest impact of that decision. When john sauer was here for his confirmation hearing, I asked about the argument he made in that case before the court of appeals.
▶ 2:09:16Sen. Schiff: When she was asked specifically by the court of appeals judge, one of them, if the present word order seal team six to assassinate a political opponent, would he be immune? His answer, apparently was, yes, unless the president's party was willing to impeach him first. Is that your view as well? Woul he be immune from prosecution for using the military to assassinate a political opponent?
▶ 2:09:45Ms. Mascott: Senator, as lower court judge, it would be fully bound by supreme court precedent, I mean, on that particul question -- and this one reason why I dressed the opinion as modest, the opinion addresses only portions of presidential immunity. It specifically is addressing criminal immunity.
▶ 2:10:07Sen. Schiff: Whether president be immune from prosecution if you ordered seal team six to assassinate a political opponent?
▶ 2:10:16Ms. Mascott: Senator, under the supreme court precedent on that question come the supreme court --.
▶ 2:10:26Sen. Schiff: Is that a difficult question? Is that an open question?
▶ 2:10:28Ms. Mascott: Under the contours of the truck versus united states which deals with criminal immunity, I'm not sure it fully answers all of the political mechanisms that would be in place to address keep such a horrific situation forever occurring.
▶ 2:10:45Sen. Schiff: You are unclear as to whether the president could be prosecuted for that? You don't know the answer?
▶ 2:10:52Ms. Mascott: I think what I'm saying is within the particular contours of criminal immunity discussed in that opinion, it addresses actually what is an official act. I think the first threshold question would be whether one could conceive of something as an official act.
▶ 2:11:07Sen. Schiff: I don't to filibuster my question. It is simple. If the president tomorrow ordered seal team six to assassinate a political opponent in your view is he immune from criminal prosecution absent an impeachment first?
▶ 2:11:20Ms. Mascott: If it is not an official act, a phrase not yetse fully defined --.
▶ 2:11:27Sen. Schiff: If he is using the military to do it which the court says he has immunity when using the military community immune or not?
▶ 2:11:35Ms. Mascott: I don't read the court's decision to say any use outside of -- as this body knows, because of various --.
▶ 2:11:44Sen. Schiff: What is the answer, professor, yes or no? You are used to answering questions and asking her students questions. I'm asking yes or no come as a immune abuses seal team six to kill a political opponent?
▶ 2:11:56Ms. Mascott: With respect --.
▶ 2:11:59Sen. Schiff: You're not willing to answer. Recently reported the president and his family made around $6 billion from the sale of crypto assets. Some of that money, much of it comes from the gulf. If the president were to sell foreign policy decision to a golf nation in exchange for a crypto donation, is he immune from prosecution for that?
▶ 2:12:26Ms. Mascott: Senator, I don't know anything about the situation that you are describing.
▶ 2:12:36Sen. Schiff: You know something about iunity. You said it was modest. I'm trying to determine how modest you think it is. Can the president sell U.S. foreign policy to the highest crypto donor and have a get out of jail free card? Or is he liable for prosecution?
▶ 2:12:51Ms. Mascott: The constitution as many constraints for all of us.
▶ 2:12:56Sen. Schiff: Let me ask a different question. If the present were to use the military in direct violation of court order deliberately knowingly blatantly use the military in violation of court order, is he? ? Immune from any liability Ms.
▶ 2:13:14Mascott: As I said when I testified last september about the decision, the clinton administration had --.
▶ 2:13:25Sen. Schiff: I'm not asking about the clinton administration.
▶ 2:13:29Ms. Mascott: The position of the clinton administration --.
▶ 2:13:35Sen. Schiff: I am asking your view of the immunity decision. I am trying to determine how modest you think it is. President cannot kill an opponent and be liable. The president cannot sell for a policy of united states for cryptocurrency. You are not willing to say he cannot do that and still be immune. Can he use the military and be immune, yes or no?
▶ 2:14:00Ms. Mascott: You are asking very specific questions. >> I would like to enter to the record, I have letters from 48 department of justice officials familiar with Mr. maxwell's work. They exclaimed, "her academic scholarship has been cited in supreme court opinions.
▶ 2:14:25Ms. Mascott: She has argued high-stakes federal cases and she has scores of briefs in courts across the country." she has been a world-class mentor to hundreds of aspiring lawyers. She was a standout attorney at the department of justice and her judgment is beyond reproach. She will make an excellent judge. Without objection, the letter is entered into the record. Senator booker.
▶ 2:14:52Sen. Booker: . Thank you very much. I just want to say for the record, I am watching the continuing deterioration of the advice and consent rule of the U.S. senate. I know senator coons very well, one of the few friends I had before I became a senator who works in a bipartisan way to model for the united states senate.
▶ 2:15:19Sen. Booker: He made it clear to the white house he was going to work with them to find a candidate acceptable to them that can be a consensus and unifying candidate. Unfortunately they are strongly objecting to your nomination. I have heard from members of this committee how much they reacted when a similar situation happened and where a nominee was put forward that did not go forward to a vote.
▶ 2:15:51Sen. Booker: My experience with the vacant third court seat in new jersey which was filled by neil beauvais. We have two sections that do not have a home court. Your objections are principled because of your lack of ties to the circuit.
▶ 2:16:13Sen. Booker: You are viewing the decisions of the district courts in delaware, new jersey and you have been in this circuit and you have very few ties. There is a reason why eight framers put these very important pillars into our constitution. I am confident that these are things they would not accept, would find problematic.
▶ 2:16:42Sen. Booker: And to do it in a district where senators are willing to support republican nominees that are done in a process that brings us together and does not divide us but ultimately continues to deteriorate theole we have, I find highly objectionable. You are before us and I want to jump right in. In your questionnaire you described -- I'm sorry.
▶ 2:17:10Sen. Booker: When the president tried to fire ftc commissioners illegallyo, rebecca slaughter and others, I lead my colleagues before the court and we defended the statutory protections congress gave to the commissioners to prevent a president from fing an ftc commission without cause.
▶ 2:17:35Sen. Booker: These were held in the supreme court in a 100-year-old precedent, humphrey's executive decision, these exists because we need the ftc and other independent agencies to remain independent. The ftc breaks up monopolies, protects children's prophecy online, protects consumers by encouraging competition that keeps prices low at the grocery store, the pharmacy and gas.
▶ 2:18:01Sen. Booker: But you argue that humphrey's executor was not correctly d. You are denying that independent agencies and the ftc were never meant to be independent and shall serve at the pleasure of the president. Can you explain how an agency taxed with protecting american consumers can remain independent if the president can fire members at will for any reason?
▶ 2:18:28Ms. Mascott: Thank you for the question. You referenced myfe academic rights to not stray into definitive statements that would be a problem for a judicial nominee structurally with constitutional principles, my scholarship and those comments were referencing the principle that the president has the executive power and needs to be fully in charge of the executive branch and that within the system we have checks for everyone.
▶ 2:18:54Ms. Mascott: If they we a fully independent commission, who would be responsible for checking thr actions if it is not the presidential supervisor? Congress through appropriations power over the contours of the power that it gives to the office from imposing constraints would certainly have a role. That is the way that separation of powers would operate effectively.
▶ 2:19:14Sen. Booker: I will have more questions for the record but I want to say clearly we have a president who has authoritarian ambitions. I believe we have a president right now who's openly violating court orders, openly violating clear principles of our constition. A president that is threatening judges that disagree with him and the independence of the judiciary.
▶ 2:19:41Sen. Booker: We have a president that is assuming responsibilities like spending powers clearly laid out in the article one branch. I'm doing a lot of reading recently about the deterioration of democracies around the globe. It is amazing how this president is doing things that speak to a very chilling and very sobering reality of a pson who does not have respect for our constitution and is doing things to me that could undermine our democracy, the strength, the trust in our institutions or worse.
▶ 2:20:14Sen. Booker: I have a suspicion that he is putting forward charges that are more loyal to him than they are to constitutional principles. I believe we are in a dangerous me and I'm going to have questions for you for the record but tions for you for the record but I ons for you for the record but I will or you for the record but I will say ou for the record but I will say to for the record but I will say to you the record but I will say to you yhe record but I will say to you y e record but I will say to you y that ord but I will say to you y that yor job is not to be president trump's lawyer on the court's but it is a separate obligation.
▶ 2:20:42Sen. Booker: And when independent agencies, the checks and balances of our constitution are under attack as they are right now, it really is chilling to me that we have a judge nominee before us that cannot state unequivocally that they will protect not just the constitution, not -- but the important and urgent in dependencies of agencies. And the urgency we have to deepen our commitment to constitutional principles.
▶ 2:21:12Sen. Booker: I look forward to getting your answers on the record and I think you very much for the indulgence to the chair. >> thank you. Professor mascott you have had a lot coming at you. Congratulations on your nomination. I want to give you the opportunity to think if they are any questions that you would like more time to answer. I would love to hear those responses.
▶ 2:21:36Sen. Booker: I know how these back and forths can be and we would love to give you the opportunity to do that. When I am looking at your background, graduating from law school wit chool wit theol wit the l wit the highest gpa ever recorded at george washiton university law school, clerked for two justices and author 29 published scholarly papers with a combined title of over 5000 700 downloads.
▶ 2:22:06Sen. Booker: You and your work has been specifically cited by justices at the supreme court both in written opinions and in oral arguments. We have heard some today about your time in academia. What I think people need to understand is that you have not retreated to the iv tower of academia -- the ivory tower of academia.
▶ 2:22:29Sen. Booker: You clearly kept one foot in appellate practice and the other filing amicus ■briefs in consequential appeals before the supreme court and federal courts of appeals and also being in the classrm. Supreme court justices have even mentioned you by name in oral arguments, spotlighting the commission that you advanced in an amicus brief.
▶ 2:22:54Sen. Booker: You authored scholarship that supreme court's have cited eight times, underscoring your contributions to these courts anscholarly understanding of all that is in front of us. That blend of pctice, appellate advocacy and scholarship all while juggling the demands of being a professor are rare and exceptional.
▶ 2:23:17Sen. Booker: We would love for you to take a few minutes and talk about how you believe that has shaped your judicial philosophy and would like to hear anything that you feel like you have not had an opportunity to answer.
▶ 2:23:30Ms. Mascott: Thank you senator. I have been honored to serve in all of those venues. If this body were to do the honor of confirming, I would carry out that duty with seriousness and rigor, upholding the rule of law to the best of my ability impartially according to the tech and structure of the constitution and the opportunity to serve in all three branches
▶ 2:24:00Ms. Mascott: Of government is a good experience and we all understand the limits and roles of a judge. As far as more comments, I am grateful for everyone's time this morning. I am just really so thrilled and moved to think about the possibility of continuing to be able to serve this country if I were confirmed to the judiciary. >> thank you for your willingness to serve. This concludes panel one. We appreciate your testimony Ms. mascott and you are excused.
▶ 2:24:32Ms. Mascott: Will the witnesses for panel two, the nominees please come forward and stand at the witness table?
▶ 2:25:14Ms. Mascott: I will now adminisr the oath. Would you all raise your right hand please and answer this question. Do you swear that the testimony you are about to give wil be the truth, t whole truth and nothing but the truth, so help you god? Thank you very much. You may be seated. Welcome.
▶ 2:25:47Ms. Mascott: As customary, if you desire to introduce the people with you including your family, you may be able to do that and give your opening statement. We will start with justice chamberlain and we will go down the line. Justice chamberlain, the floor is yours.
▶ 2:26:02Mr. Chamberlin: I would like to thank chairman grassley, chair britt and ranking member durbin. I appreciate you for holding this hearing. I would like to thank president trump. It is a tremendous honor to receive his nomination and to be here today. I would like to thank senator wicker and senator hyde-smith for their kind remarks earlier this morning. I have known them for many years and I appreciate the kind words.
▶ 2:26:32Mr. Chamberlin: I have with me today my wife kim . We just celebrated 33 years of marriage is not very long ago. She herself has been a public servant for decades and she has to by me during any endeavor I have undertaken and I have tried several during my career. I would like to mention a few people that are not here today but arguing from home -- but they are viewing from home. My mother.
▶ 2:27:04Mr. Chamberlin: She is back home. She would not miss this for anything in the world other than her irrational fear of flying which I believe is the same reason my mother in law is watching from home. I would like to recognize my brother and my sister-in-law who are both doing the same as well as my bther-in-law don and my sister-in-law sidney.
▶ 2:27:28Mr. Chamberlin: Finally I would like to recognize my son william and daughter-in-law sarah, back home in jonesboro, arkansas where they work for arkansas state univsity. He's in the athletic department and she is in communications and they are getting ready for the first ever match up against the university of arkansas in football. As you know in the south, football is king. I will briefly mention a couple of mentors, if I may. I mention bill austin who gave me my first job back in my hometown.
▶ 2:27:58Mr. Chamberlin: He and billie meyer, debby brandon, each taught me many things in their own way about the law and I am greatly appreciative to bill austin for taking me under his wing. I would like to mention my aunt jeanette martin. She was the political member of the family. She taught me that it does not cost anything to be nice to people.
▶ 2:28:22Mr. Chamberlin: I would like to give a short dedication at this hearing to my oldest and dearest friend who passed away unexpectedly one month ago. If you knew louis sth, you would love him. I would like to dedicate this hearing to him. I thank you for this honor and look forward to answering your questions. >> he mentioned an extraordinary wife. I just don't know who that is. There she is.
▶ 2:28:53Chair Britt: Congratulations on your incredible news.
▶ 2:28:57Sen. Booker: I don't know about the judge and his qualifications, but I want to know how you keep a woman much better than you and stay married.
▶ 2:29:05Chair Britt: He just got engaged this weekend.
▶ 2:29:08Mr. Chamberlin: Congratulations.
▶ 2:29:10Sen. Booker: Thank you very much. As a former football player, I know what that means.
▶ 2:29:17Chair Britt: Congratulations senator booker. >> thank you chairman grassley, ranking member durbin, senator britt. I'm honored to be here. I would like to thank almighty god to whom I owe all the things. I like to think president trump -- I wouldike to thank president trump for giving this nomination.
▶ 2:29:45Chair Britt: My wife was taking my boys out touring the senate. She should be back. A thank you to the deer friends who are keeping her two younger, noisier children while we are here in washington, D.C.. We love you very much. Thank you to the many family and friends who are here and present and I am also watching from afar, especially my parents who always instilled in me and taught the value in developing my talents to serve others and who made so much of that possible for me.
▶ 2:30:15Chair Britt: Finally I would like to thank many former colleague and current colleagues of mine who helped shape me as a lawyer. Past colleagues at baker botts, bancroft and kirkland and my current colleagues at the attorney general's office who set the bar so high as lawyers and help me to reach it. Thank you to the judge I clicked for. Sh has been a phenomenal mentor, example as a man and jurist.
▶ 2:30:45Chair Britt: To attorney general steve marshall who gave me the opportunity to serve our home state. Has supported me in so many other ways since then.
▶ 2:30:52Chair Britt: Your we and boys have entered the building. Justice lewis.
▶ 2:31:03Mr. Lewis: Thank you madam chair. I cannot tell you what an honor its to be before this committee. As a political science major I am very happy right now. Also ranking member durbin, senator grassley, thank you for allowing me to be here. I would like to thank president trump for the nomination. I would also like to thank governor ivey for supportinme in my role as a state judge.
▶ 2:31:29Mr. Lewis: I would like to thank the people of alabama who have supported me throughout my political career. We have a lot of brothers and sisters in my family so in the interest of time, I will not introduce all of my family specifically. But all of these folks in the church on the front row are my family. I am honored to have them here as well as my many friends and colleagues and even employees. Thank you.
▶ 2:31:55Chair Britt: Tha you very much. Justice maxwell.
▶ 2:32:00Mr. Maxwell: Am I on?
▶ 2:32:03Chair Britt: You are.
▶ 2:32:05Mr. Lewis: Senator britt, ranking member durbin, members of the committee. I want to thank you for holding this hearing. I want to get a special thanks to senator hyde-smith and senator wicker for their kind words and their support throughout this process. I will want to thank president trump for the nomination, for that honor. It has been a dream of mine to serve on the federal bench in mississippi.
▶ 2:32:34Mr. Lewis: They told us to keep our remarks were brief and I will try to do so. But I do have a few family members to recognize and some special gifts. The first one that I want to start with is my wife mindy maxwell who actually met in the federal courthouse for the northern district of mississippi while I was in law school. We have been married now for 23 years. I want to say this to senator booker.
▶ 2:33:02Mr. Lewis: I can tell you beyond a shadow of any doubt that when the good lord put mindy maxwell on this planet, he did not create another woman like her. She has been a very speci wife. Wonderful to me. A terrific mother to our children. She is also a consummate professional.
▶ 2:33:25Mr. Lewis: She is also my best friend and I congratulate you on your wedding and I he youad that same experience that I have with my wife mindy. I wish my kids were here today for you to meet them. They are both in college, hopefully in class right now. My daughter may is a sophomore at justice lewis's alma mater in tennessee. My son trip is playing football. He is a redshirt sophomore.
▶ 2:33:57Mr. Lewis: Your old stomping grounds. He is out in california playing a los altos at the community college. I don't know if he has hit the portal today which is definitely a possibility. Moving on from that, my mother was not able to attend today. She would have loved to have been here.
▶ 2:34:21Mr. Lewis: I know she isatching on tv from dharma, mississippi, population 900, probably on her knees praying for me like she has done for most of my life. My sister amanda is watching from houston texas. I have some special gifts. My law clerk beth archer is here, my judicial assessment -- assistant ellen ford is here and one of my friends blake neely.
▶ 2:34:52Mr. Lewis: Before I conclude, I want to say a few words about someone who is no longer with us but who has been a mentor throughout my life and that is my father jim maxwell. He was a trial lawyer's trial lawyer. My rides to school were different from most others. I did not get to control the radio. He did. He played tapes into the graves. Mo levine and later gerry spence.
▶ 2:35:22Mr. Lewis: I hated it at the time but right now I'm glad he did not change that dial. Senators, in closing, I want to thank you for this opportunity. I look forward to answering your questions.
▶ 2:35:36Chair Britt: Thank you. Mr. mooty.
▶ 2:35:43Mr. Mooty: Thank you for this opportunity to appear here before you today. I would like to begin by thanking president donald trump for the honor of nominating me to the united states district court is in my home state of alabama. Two senator tuberville, thank you for those kind words during the introduction. To senator britt, god is good. More than anyone else it has been your tireless service to our country that inspired me to d answer the call. Thank you.
▶ 2:36:15Mr. Mooty: For 17 years of private practice I could spend all morning taking up too much time thanking everyone. I just want to start with my family. My mother and father are both here from montgomery along with my brother. My father taught me what it means to be a lawyer and how to treat other people with respect. I know my brother has learned similar lessons from practicing law with my father. My immediate family from huntsville is here.
▶ 2:36:40Mr. Mooty: My lovely wife, beautiful and also a practicing attorney and our middle school aged children are here. So many others made the trip to support my nomination. I would like to thank them for making the trip. Also to those who are watching remotely for also supporting me through this process. Senator britt thank you again and I looforward to answering questions.
▶ 2:37:04Chair Britt: Thank you. I will reserve my time for later in the hearing will be senator durbin, I will kick it to you.
▶ 2:37:11Sen. Durbin: I appreciate it. Thank you all for being here. I apologize for stepping away but senator grassley and I were on the senate floor conducting business. We were not taking lunch breaks. We were busy during that period of time. You were the solicitor general for the state of alabama, is that true? >> yes.
▶ 2:37:35Sen. Durbin: There came a time were you involved in 2023 in the drawing of maps for the legislative or congressional districts? >> senator, that case is still an active meditation -- in active litigation.
▶ 2:37:54Sen. Durbin: I don't want to tread on any privilege but there was some evidence that came out in litigation that state borders were advising state officials on issues of state law, something that the attorney general's office and alabama and many states does do with heavy legislation.
▶ 2:38:10Sen. Durbin: For these legislative district or congressional districts?
▶ 2:38:15Mr. Lacour: These were congressional.
▶ 2:38:17Sen. Durbin: And the state cases are still pending?
▶ 2:38:22Mr. Lacour: Yes.
▶ 2:38:24Sen. Durbin: You played a significant role to create maps that continue to disregard federal court orders and suppress the influence of black voters. Would you like to comment on that?
▶ 2:38:36Mr. Lacour: We have arguments that we advanced in the case as to why that map is consistent with section two of the voting rights act and with equal protection that states not use race to sort voters into different districts. When it comes toefiance of court orders, I don't think any court order has been defied in th case.
▶ 2:39:01Mr. Lacour: There w a court order in 2022 in january, a preliminary injunction issued against our earlier plan. That order was complied with to the point where we got a stay from the united states supreme court.
▶ 2:39:13Sen. Durbin: I hate to interrupt you but I have to ask this specific question. State lawmakers said you helped draw the new map and solicitor general in a room across from state legislatures and pushed for the inclusion of legislative findings and outright talking points for them. Are you aware of that assertion?
▶ 2:39:32Mr. Lacour: I am aware of those allegations. I'm going to say is what the evidence shows in the case because there are privilege issues that I do not want to overstep.
▶ 2:39:44Sen. Durbin: In the case of allen versus milligan that went before the U.S. supreme court in 2022 you argued that section two of the voting rights act required evidence of discriminatory intent to prove a violation. Do you understand now that that is different than what the law says?
▶ 2:40:04Mr. Lacour: We presented several arguments in that case. The supreme court has it. -- the supreme court has agreed that it is not relevant in section two of the voting rights act. In that case we presented an argument that was similar want to -- similar to one that had been adopted for the seventh circuit that if you are trying to determine whether a map is dilutive, it is helpful to have a benchmark. Dilutive compared to what?
▶ 2:40:30Mr. Lacour: We argued that if a plan that is beingin attacked under section o of the voting rights act looks like a map you might expect from a race-neutral process, en it is not as commenting on account of race. Ultimately the supreme court by a 5-4 vote did not adopt that particular argument. Litigation continues.
▶ 2:40:50Sen. Durbin: George lewis you have been on the bench since 2016. The alabama judicial cannon states that it is a judge endeavor not to be involved in the internal workings of a polical organization.
▶ 2:41:07Sen. Durbin: You served as a member of the executive committee in elmore county, a political organization including chairman since 2018 and the executive committee since 2008. Why did you not follow the recommendaon of the alabama judicial cannon?
▶ 2:41:28Mr. Lewis: That is a recommendation but I also checked with our regulatory agency and they permitted me to do that.
▶ 2:41:37Sen. Durbin: Who permitted you?
▶ 2:41:39Mr. Lewis: The judicial inquiry commission. It is our regulatory body. We run partisan elections in alabama. I'm an elected official so that was a segue into my political career.
▶ 2:41:53Sen. Durbin: Thank you. Senator britt I would like to have an additional 60 seconds. Justice maxwell, in nash versus state, you upheld a 12 year sentence for a defendant convicted of a misdemeanor, 12 years, convicted of a misdemeanor for possessing a cell phone in jail. You phone in jail. You wrote, in jail. You wrote, "n jail. You wrote, "while .
▶ 2:42:19Sen. Durbin: You wrote, "while obviously harsh, it is not grossly disproportionate." 12 years in prison for a misdemeanor possession of a cell phone. Please explain.
▶ 2:42:30Mr. Maxwell: I would like to clarify that I was not the trial judge in that particular case and this was not a misdemeanor charge. It was a felony offense that was charged by the district attorney and our role as the mississippi supreme court was to decide whether that was a lawful sentence within the parameters set by the legislature and it fell within the parameters that were set by the legislature and it was a 9-0 decision by the supreme court on that question,
▶ 2:43:01Mr. Maxwell: Whether it was a lawful sentence.
▶ 2:43:02Sen. Durbin: The defendant had a wife and three children that depended on him and have been staying out of trouble with the law for nearly a dade since his prior conviction. The crime was victimless and accidental and likely caused by a failure in booking procedures and yet you thought 12 years for a misdemeanor was warranted?
▶ 2:43:25Mr. Maxwell: I did not impose my personal thoughts about that particular sentence. What I did was follow the letter of the law.
▶ 2:43:33Sen. Durbin: What was the range of sentencing?
▶ 2:43:39Mr. Maxwell: The rangers up to 16 years.
▶ 2:43:44Sen. Durbin: From what low number? 12 years for possession of a cell phone. Thank you madam chair.
▶ 2:43:55Chair Britt: Thank you senator durbin. Senator kennedy.
▶ 2:44:00Rep. Kennedy: Thank you madam chair. Congratulations. I will start down here and move this way if that's ok. Judge, what is the rational basis test?
▶ 2:44:15Rep. Kennedy: >> the rational basis test is going to be one of your least stringent tests in whether a law has a rational basis for the outcome intended for the governmental interest you are trying to obtain.
▶ 2:44:32Sen. Kennedy: One if the legislature or congress does not list the reasons and just passed the statute? >> that probably happens many times and it is the role of the court when determining such matters as a definition.
▶ 2:44:58Sen. Kennedy: It is the role of the court to determine whether the usage of that statute using its wording whether the usage is going to reach the governmental interest that you hope is obvious but sometimes you have to determine.
▶ 2:45:15Sen. Kennedy: So you just create thec# basis, the reason for the statute?
▶ 2:45:20Mr. Chamberlin: I don't think that you create it, senator. But I don't think that most statutes, I don't think that they tell you what they are trying to accomplish so much as they s this is the law. For example, possession of a narcotic. It is going to say it is illegal to possess this.
▶ 2:45:48Sen. Kennedy: Do you lookk at te statute or do you look behind the statute?
▶ 2:45:54Mr. Chamberlin: You always look at the statute. You always look at any other precedent. However you look to the language of the statute to determine what
▶ 2:46:06Does And Sen. Kennedy: What effect that might have. --Sen. kennedy: counselor, let's suppose that a legislature passes a statute that says if you have a college degree or more advanced degree, you don't have to take a driver's license test.
▶ 2:46:35Does And Sen. Kennedy: And let's suppose that the federal court has a jurisdiction over a challenge to the constitutionality of that statute. What test are you going to authorize counsel? >> that will be a classification that does not turn on any characteristic. It would be a rational basis test that would apply in that instance.
▶ 2:47:01Sen. Kennedy: You don't see any suspect classification?
▶ 2:47:04Mr. Mooty: No, senator.
▶ 2:47:06Sen. Kennedy: You don't see any fundamental right?
▶ 2:47:11Mr. Mooty: No, senator.
▶ 2:47:13Sen. Ooty: No, senator.
▶ 2:47:13Sen. Kennedy: , senator.
▶ 2:47:15Sen. Kennedy: Senator.
▶ 2:47:15Sen. Kennedy: Whatator.
▶ 2:47:15Sen. Kennedy: What tor.
▶ 2:47:15Sen. Kennedy: What if .
▶ 2:47:15Sen. Kennedy: What if the legislature did not provide -- so you would use the rational basis test?
▶ 2:47:18Mr. Mooty: I would, senator.
▶ 2:47:20Sen. Kennedy: And you would uphold that statute?
▶ 2:47:22Mr. Mooty: There could be some rational basis that a court could conceive to justify that statute and rational basis --
▶ 2:47:33Sen. Kennedy: So you would invent the rational basis, the reason for the statute?
▶ 2:47:38Mr. Mooty: That is generally how the test has been applied by the supreme court and by lower court. As district court jud I would be bound by that supreme court precedent. Ok. Judge, tell me the difference between notice pleading and fact pleading.
▶ 2:48:01Mr. Lewis: Note pleading goes to your due process issues of the 14th amendment.
▶ 2:48:07Sen. Kennedy: What is the difference between notice pleading and fact pleading? We used two syste in america, as you know.
▶ 2:48:16Mr. Lewis: Notice pleading is based on your personal jurisdiction and the fact pleading goes into your subject matter jurisdiction.
▶ 2:48:29Sen. Kennedy: What systems does the federal judiciary use? Notice or fact?
▶ 2:48:40Mr. Lewis: Fact.
▶ 2:48:44Sen. Kennedy: Ok. I am about out of time. Can I have 30 more seconds, madam chair? You heard me talk to the nominee for the third circuit about how she would interpret the constitution.
▶ 2:49:12Sen. Kennedy: She said the constitution should be interpreted according to the meeting as understood by the people in america at the time the constitution was passed. Do you agree with that? >> I do, senator.
▶ 2:49:24Sen. Kennedy: Let me ask you what I asked her. How do you square that with brown v board of education?
▶ 2:49:32Mr. Maxwell: I would adopt a lot of what she said. I believe the 14th amendment --
▶ 2:49:41Sen. Kennedy: The 14th amendment was later.
▶ 2:49:45Chair Britt: Can you turn your microphone on, please? Thank you.
▶ 2:49:52Sen. Kennedy: I am a textualist as well. One of my friends said we have to interpret the constitution in accordance with the way the average american viewed the constitution at the time. I said ok, that seems fair to me. Do you think that the average american at that time looked at the constitution and supported and believed that it provided for racially integrated schools?
▶ 2:50:22Sen. Kennedy: Do you think that was the majority view at the time?
▶ 2:50:24Mr. Maxwell: Senator, all I know is brown versus board of education is a good law and correctly decided.
▶ 2:50:32Sen. Kennedy: Why do you think it was correctly decided? I agree with you but why? If you interpr the constitution by looking at its public meaning at the time.
▶ 2:50:49Mr. Maxwell: Separate was not, it was inherently unequal. I just do not believe there is any appetite in this country for any type of segregaon.
▶ 2:51:00Sen. Kennedy: At the time the constitution was passed?
▶ 2:51:05Mr. Maxwell: I'm talking about
▶ 2:51:07Right Xwell: I'm talking about
▶ 2:51:07Right Now.L: I'm talking about
▶ 2:51:07Sen. Now.L: I'm talking about
▶ 2:51:08Sen. Kennedy: I'm talking about
▶ 2:51:09Sen. Kennedy: 'm talking about
▶ 2:51:09Sen. Kennedy: Ok.talking about I'm going way over. I'm sorry I did not get to you. >> no problem, senator.
▶ 2:51:20Chair Britt: Senator blumenthal.
▶ 2:51:23Sen. Blumenthal: Thank you madam chair. Let me follow that line of questioning by asking all of you do you think brown versus board of education was correctly decided? Go right down.
▶ 2:51:41Mr. Chamberlin: I believe as a general rule it would be improper of us to give a thumbs up or a thumbs down to most opinions. It has been traditional among the nominees before this committee regarding brown versus board of education. I will follow that and state my opinion and say I believe it was correctly decided. Sen. blumentha you do believe it was correctly decided?
▶ 2:52:02Mr. Chamberlin: Yes. >> are agree with what justice chamberlin just said.
▶ 2:52:10Mr. Lewis: I am very thankful for brown versus board of education. I think it was rightly decided.
▶ 2:52:16Mr. Maxwell: Same answer.
▶ 2:52:17Mr. Mooty: Same, senator.
▶ 2:52:22Sen. Blumenthal: Thank you. Let me ask each of you do you believe that loving versus virginia was correctly decided?
▶ 2:52:31Mr. Chamberlin: I would preface with the same comments. I think for the same reason a moment ago that there are two cases, brown versus board of education and loving versus virginia that have been commented on regularly and I will maintain that tradition and state I do agree with that opinion and believe it was rightly decided.
▶ 2:52:55Mr. Mooty: As a beneficiary of interracial marriage, I also agree that loving virginia is correctly decided.
▶ 2:53:05Mr. Lewis: Again, there has bee precedent with those two specific cases, we are able to comment on and I believe it is rightly decided.
▶ 2:53:15Mr. Maxwell: I believe it was correctly decided. >> the same, senator. I believe loving versus virginia was correctly decided.
▶ 2:53:25Sen. Blumenthal: Let's go to another case. Bloomberg referral versus -- or broker fell versus hodges.
▶ 2:53:40Mr. Chamberlin: To comment on whether or not these decision was otherwise in my opinion, it would be improper for us to comment on that. I did make exceptions for two cases because that has been traditional before this committee but I will be unable to respond to the question.
▶ 2:54:02Sen. Blumenthal: On what basis do you distinguish brown versus board of education and loving vers virginia from obergefell vs hodges? We think they were correctly decided but unwilling comment on obergefell vs hodges?
▶ 2:54:21Mr. Chamberlin: It has been traditional among nominees to respond versus -- regarding brown versus board of education and loving versus virginia.
▶ 2:54:31Sen. Blumenthal: If I may interrupt, I would not say it is traditional. I have just been asking this question for the last couple of years and that happens to be the way nominees respond. They are willing to comment on loving and brown but not obergefell. There is no tradition here.
▶ 2:54:56Sen. Blumenthal: I am asking you as a nominee for the court, do you think obergefell wasorrectly decided?
▶ 2:55:02Mr. Chamberlin: It is the better practice not to comment on the wisdom or correctness of these decisions. As you gestated, these cases have been asked about for a period of time and I am following the line of tradition and answering cases reverting -- regarding brown and loving.
▶ 2:55:22Sen. Blumenthal: I don't mean to say this with any disrespect to any of you. You are just doing what has worked for the previous nominees.
▶ 2:55:31Mr. Chamberlin: No, I am just following what they have done as I felt those are that have been accepted.
▶ 2:55:38Sen. Blumenthal: I will give you the opportunity to comment. >> I would apply it faithfully if I am so fortunate to become a district court judge.
▶ 2:55:52Sen. Blumenthal: Do you think it was rightly deced?
▶ 2:55:55Mr. Lacour: Like other nominees, I would not want to be seen as giving a preview as to how I might decide any related case. If I were to give a thumbs-up up or thumbs down or otherwise grade the papers of the united states supreme court --
▶ 2:56:10Sen. Blumenthal: I am not going to argue with any of the nominees but there is nothing pending right now that would involve your commenting on something that is potentially before a court where you would serve. Let me go on to the rest of you and give you an opportunity to respond.
▶ 2:56:29Mr. Lewis: As a senator, my response will echo the other two colleagues. I will say as a district court what does matter is supreme court precedent. As long as the supreme court precedent, looking at it from a legal perspective, it is right. As long as that is the precedent , then yes.
▶ 2:57:00Mr. Lewis: We will follow it.
▶ 2:57:00Sen. Blumenthal: Thank you.
▶ 2:57:01Mr. Maxwell: Senator, it is a binding precedent and I would follow it.
▶ 2:57:09Mr. Mooty: I agree with my colleagues. I will follow all binding supreme court precedent including obergefell.
▶ 2:57:16Sen. Blumenthal: Thank you all for your responses to my questions and thank you madam chair.
▶ 2:57:21Chair Britt: Senator moody.
▶ 2:57:25Rep. Moody: Thank you madam chair. That is fun to say. I am sorry for my colleague. Herobably gave you nightmares that hearkened back to law school. He takes very seriously this committee's role in making sure we have the highest caliber of those that are confirmed for these lifetime posts.
▶ 2:57:52Rep. Moody: We thank the president for nominating such well-qualified and hard-working individuals whose accomplishment's are great but from what I can tell your commitment to the constitution and the rule of law may be even greater. I am very proud to be here today and participate on this committee. As you can see I am the newest member of this committee.
▶ 2:58:18Rep. Moody: But yet I have served in the judiciary as a judge and in the other branches of government. I was a state attorney general, the federal prosecutor at one point. I appreciate the breadth of expgrience that this panel represents. Thank you very much. I amot letting you off the hook moody.I think it is only right sin I am senator moody to question attorney mooty.
▶ 2:58:50Rep. Moody: One of the biggest threats to our republic is a delicate "balance lic is a delicate "balance of is a delicate "balance of power" elicate "balance of power" that te "balance of power" that we have in our three separate branches. Having served in every branch, I think for the continue to strength and prosperity of this nation and the freedom of our people we have to always go back to a very strict respect of the scope of power of each of the branches. From thomas jefferson to abraham lincoln there has always been a concernf judicial tyranny.
▶ 2:59:20Rep. Moody: And that if you have a judge or a body that is consistently given the task of checking the power of the legislative branch, checking the power of the executive branch, in turn that power may evolve into judicial tyranny or oligarchy.
▶ 2:59:44Rep. Moody: What concerns me is the increasing perception by the public of the judicial branch. Because I believe the failure of many historical nationstates started when people stopped trusting the judial branch. Started inferring that the judicial branch cared more about policy preferences or political influence than they did about reason and analysis.
▶ 3:00:16Rep. Moody: I think right now the biggest challenge we face as a nation is the public's perception of this third branch and the danger that this presents to what was envisioned for this country by our founders and we celebrate 250 years next year. What are future looks like as a nation. You will be given a lifetime appointment.
▶ 3:00:44Rep. Moody: Many have gone on to experience that horrible sickness called robitis. The danger isr where that overtakes the commitment to come back to what your duty is first and foremost as a judge, an independent judge with the job of using the constitutio independently without any bias. We will start with you Mr.
▶ 3:01:13Rep. Moody: Mooty and as far as I can get down the line. How do you believe your judicial philosophy or your nomination and ultimate confirmation will allow us to restore and ensure public trust in the judiciary.
▶ 3:01:27Mr. Mooty: Thank you, senator. I am fully committed to this body, to faithfully apply the law of the land, the constitution and all federal law faithfullynd impartially and treat all persons who appear before me with dignity and respect and to give each case and controversy as article three specifies, the attention that it is due.
▶ 3:01:51Mr. Mooty: I will add, this body conducted a hearing on the judicial branch being the least dangerous branch as specified by alexander hamilton in the federalist papers 78.
▶ 3:02:05Mr. Mooty: It is only the least dangerous branch senator, if judges fortunate enough to be confirmed, remember our role as one of three separate but equal branches of government and not attempting to legislate from the bench and I'm committed not to do that if fortunate enough to be confirmed.
▶ 3:02:22Sen. Moody: I'm out of time but I thought it was fitting that I started there. Everybody else starts with you, you poor thing.
▶ 3:02:29Chair Britt: Thank you. I will start with him asell that way we can double up. Each of you have outstanding and unique qualifications to serve as federal judges whethert be judges or advocates, each of you bring the necessary and important experience to the federal judiciary. Mr. mooty, we will start with you. Can you speak to what experiences you have had that make you feel most qualified to serve in the position in which you have been nominated?
▶ 3:03:00Chair Britt: Then we will go down to justice chamberlin.
▶ 3:03:01Mr. Mooty: Thank you. I grew up in the courtroom. I was born on my dad's first day of his last semester in law school. I remember him trying cases at a young age, working at a runner at his law firm and decided I wanted to be not just a lawyer but a litigator in the courtroom at a very young age.
▶ 3:03:21Mr. Mooty: After 17 years in private practice and trying cases in federal and state courts, appearing in federal and state courts across the country, I feel like I was born to do this, senator, and serve the public and my country in a manner that I feel like god is setting me on a path to be back in the courtroom but for a lifetime appointment serving the public in a country that has given me so much.
▶ 3:03:46Chair Britt: Thank you.
▶ 3:03:48Mr. Maxwell: To echo Mr. mooty's comments, I was also raised by a lawyer. He told me at an early age the important aspects of justice. Riding to schools those mornings, we were listening to trial lectures. I have taken that with me. I am blessed to have my own legal career bed on his shoulders.
▶ 3:04:16Mr. Maxwell: For the past 16 years I served as a judge on our state's highest courts and I have had the ability to decide basically every aspect of criminal and civil case. I have been around some excellent mentors on both the state supreme court and the court of appeals.
▶ 3:04:32Mr. Maxwell: To truly get down to answer your question what separates me and uniquely qualifies me to serve in this role is the fact that I've been a federal prosecutor in the northern district of mississippi. It is where I cut my teeth as a lawyer. I learned a lot of lessons from the judges there. Some tremendous judges. Neil biggers.
▶ 3:05:04Mr. Maxwell: I learned lessons and took a lot of loss. We learned about policy, the constitution. But when it gets down to is when you walk in that courtroom can you not only call balls and strikes like we heard the analogy from chief justice roberts, but can you have a consistent strike so for all the parties? What is a strike for one party cannot be a ball for another.
▶ 3:05:35Mr. Maxwell: I nnot be a ball for another. I cant be a ball for another. I can be a ball for another. I can submit all for another. I can submit tol for another. I can submit to for another. I can submit to this another. I can submit to this committee that is confirmed to this position, it would be like coming home to that federal family in the northern district of mississippi.
▶ 3:05:44Chair Britt: Thank you. Justice lewis.
▶ 3:05:47Mr. Lewis: I come from a background where I was the first person in my family to graduate from college. We come from a meager background. When I go to court especially in the early years of my legal profession, I saw myself in a lot of the clients that came through there. Not necessarily the criminals but just in general. That has shaped my legal career.
▶ 3:06:17Mr. Lewis: In my judicial philosophy, I believe everybody who comes into that court deserves to have their voice heard regardless of where they are on the issues, regardless of where they come from, what they look like, who they are. I have pretty much spent just about every minute of my inlegal career as an attorney in the courtroom. I practiced in civil litigation, criminal litigation, I practed as a prosecutor, defense attorney. I handled rights cases, civil cases.
▶ 3:06:49Mr. Lewis: I have practiced in three states. I have a broad background that I bring with me to this potential judgeship. Also that experience as a lawyer factors into the way I handle myself and carry myself as a judge. As a circuit judge my circuit was one of the busiest in alabama. I handle more cases in my circuit as any circuit judge in the state based on our caseload.
▶ 3:07:20Mr. Lewis: What that taughte was to manage dockets efficiently and to make sure that everybody had their voice heard. When I went to the appellate level, it was much different because then I was in a position where I was able to be analytical. I was able to research cases. It also gave me the opportunity to see how other judges in the state did things, what worked, what didn't and how they treated people as well. When I became a supreme court justice, the focus shift.
▶ 3:07:51Mr. Lewis: I was working on trying to get a consensus. As a child support -- is a trial court judge, but I say goes. As an appellate judge, you have to get a consensus. You have to get other folks to gravitate to your issues. At least you have to try to. That helped me hone my skills and being analytical with legal arguments and things of that nature.
▶ 3:08:16Mr. Lewis: As a supreme court justice, we are doing more with state and to an extent federal policy. I have a broad background on every level of the legal profession. I believe that it will be very beneficial if I am to be confirmed.
▶ 3:08:30Chair Britt: Thank you. Mr. lacour. ♪
▶ 3:08:35Mr. Lacour: Thank you. I have been fortunate to get to cover a broad array of legal issues from california to the district of new york all the way up to the supreme court litigating the bill of rights and many other issues as well. That has givene a good experience in terms of being able to get a new issue, get up to speed quickly, try to get the right awer and move on.
▶ 3:09:06Mr. Lacour: That is a really important skill for a judge to have, to be able to master the law quickly to provide justice both by getting to the answer to the answer the law demands but also getting an answer to the parties before you quickly so they can either appeal or move on with their live that is something I hope to be able to bring and a lot of hard work to the bench if I'm fortunate enough to be confirmed.
▶ 3:09:29Chair Britt: Thank you. Justice chamberlin.
▶ 3:09:32Mr. Chamberlin: I hope I am not out of line for the terrible omission from earlier today. I did not mention my father who passed away in december. His 91st birthday would have been on labor day. He would have been so prd today. To answer your question, I did not grow up the child of a lawyer. My father was a truck driver. My mother worked at the assembly line. My earliest legal influences were. Mason and ben matlock.
▶ 3:09:58Chair Britt: I like it.
▶ 3:10:00Mr. Chamberlin: My father and mother instilled the necessity of education in us and I am happy for the law degree. My experience that most prepares me for this job is I served 12 years as a circuit court judge, the trial judge level for the state courts in the state of mississippi. I have run a court room. I have run a docket. I know the appropriate judicial temperament.
▶ 3:10:27Mr. Chamberlin: I know the appropriate judicial demeanor and I hope to be able to bring those to the job if I am fortunate enough to be confirmed.
▶ 3:10:32Chair Britt: Thank you very much. I am out of time. The beauty of being the chair is you get to take more time. I will come back across quickly if you don't mind answering what qualities do you have that you find important for a federal judge to aspire to and that you hope to emulate on the federal bench and many of you who may have referenced this in your previous answer. We will start with you justice chamberlin.
▶ 3:11:00Mr. Chamberlin: As a U.S. district court judge nominee for a U.S. core position, first integrity. Integrity is important as it gets. The dedication to the law and appropriate judicial demeanor and appropriate judicial temperament.
▶ 3:11:21Chair Britt: Excellent. Mr. lacour.
▶ 3:11:24Mr. Lacour: I would like to think that I learned from my former judge chief judge pryor, the value of hard work. He was commemorated for serving 20 years and several of his colleagues commented that there are few judges as hard-working as him. He is well-known as a sharp legal analyst. I hope I can be the same.
▶ 3:11:50Mr. Lacour: In terms of giving opinions out the door, giving justice to the parties, something I have admired and hope to emulate.
▶ 3:11:57Chair Britt: Thank you.
▶ 3:11:59Mr. Lewis: Work ethic and integrity is the primary characteristic of a judge. I believe that my long legal career has taught me that most people, regardless of where they are on the issue, when they leave the courtroom it imy job as a judge to make sure that they know that the system has worked, maybe not in their favor but in the fact that they have
▶ 3:12:31Mr. Lewis: Had their day in court, have had their y and they feel like the system is working for them. I think senator moody touched on it. The position of the judiciary is in a state that concerns me.
▶ 3:12:49Mr. Lewis: As a district judge it I on th federal level that has the most access to the public to instill that confidence in everyone that the system works for everyone, whether it be a traffic ticket for a capital murder litigation which I have been involved in on numerous occasions as well. At the end of the day, that person needs to feel like the system is there to hear them and make them feel like they are a part of this country.
▶ 3:13:17Chair Britt: Justice maxwell.
▶ 3:13:20Mr. Maxwell: I believe that integrity is paramount. Respt for the litigants before you is important. Another quality that has not been mentioned yet is courage. Judges have to make difficult decisions. You cannot just put your finger in the air and check the pulse of what is going out there with your constituents. We only really have one constituent and that is to the law.
▶ 3:13:49Mr. Maxwell: Maybe to the constitution of the united states. Judges cannot push the law or we all get to the wrong place . We have to follow the law. If we do that, everyone in this room is going to end up in the right place.
▶ 3:14:06Chair Britt: T last word of the day, Mr. mooty.
▶ 3:14:10Mr. Mooty: My colleagues have given excellent answers to this question. I don't want to repeat their attributes while adopting all of fthe years. Preparedness, senator. I have practiced for long enough to know that a lawyer and their client can tell when a judge is not prepared for a hearing, for a trial or an appearance.
▶ 3:14:32Mr. Mooty: I have learned from a lot of great mentors, know what you can control and I teach my young litigation associates tt you can control your level of preparedness when you walk into a courtroom. That is something that I try to do every single time I set foot in the courtroom is make sure I am the most prepared. I would take that to the bench and instill a level of confidence not just with the lawyers but with the parties themselves.
▶ 3:14:59Mr. Mooty: This judge is prepared and preparedness shows respect and integrity.
▶ 3:15:04Chair Britt: Thank you so much. Thank you all for your time today. Congratulations on your nomination. Congratulations to your families. We are thrilled to have each one of you here with us. Thank you to the nominees for your testimony today. Written questions for the record may be submitted up until september0 at 5:00 p.m.
▶ 3:15:30Chair Britt: The quicker you get back your answers, the faster we get to have an opportunity to put that before the full committee. And with that, thank you again. This hearing is adjourned. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap.org]