▶ 0:01:52>> they believed it could actually be dangerous for her to stay with her mother but I'm happy to say she has a wonderful auntie, an older female elephant and there was an immediate connection.
▶ 0:33:28>> good morning, everybody. I welcome everybody who is here and people who may come into today's hearing. Our first panel features justice smith nominated to the U.S. court of appeals for the eighth circuit. On panel two we will hear from three nominees to the U.S. district court.
▶ 0:33:58Jeffrey kuhlman, anthony mattivi , and anthony powell. In a moment I will turn to our visitors to introduce these nominations after senator durbin gets done speaking but first I would like to say two words. This past year the now acting attorney general todd blanche launched a civil rights fraud initiative.
▶ 0:34:27The effort uses the false claims act to discover federal funds to recover these federal funds from recipients that knowingly violate federal law by engaging in practices that racially discriminate.
▶ 0:34:46Thanks to the justice department initiative, a federal contractor recently agreed to pay $17 million to settle claims brought under the false claims act related to its so-called d.e.I. Practices.
▶ 0:35:09As attorney blanche rightly quoted, racial discrimination is illegal and government contractors cannot evade the law by repackaging it as d.e.I.. We have a basic commitment to adhere to civil rights laws.
▶ 0:35:36I am pleased that the false claims act is recovering taxpayer funds and combating illegal discrimination. Relevant to today's hearing I would also like to bring up the issue that has been repeatedly featured at our nomination hearings.
▶ 0:36:04Some of my democrat colleagues have relentlessly attacked nominees for their responses about election results. I think a civics lesson is in order to respond to their questioning. Under article two and the 12th amendment of our constitution the electoral college dictates who wins presidential elections.
▶ 0:36:30Those electors cast ballots and the vice president certifies the count in a joint session of congress. So I am not asking you to take my word for it.
▶ 0:36:46Just let me read to you what the 12th amendment states, "the people have the greatest -- the person having the greatest number of votes for president shall be president if such number be a majority of the whole number of electors." when recent judicial nominees have been asked who won the 2020 election they have correctly stated that president biden was
▶ 0:37:16Certified as the winner and served four years. When asked about the 2024 elections, they have correctly acknowledged that president trump was certified as the winner and is currently in office. These answers are correct both factually and legally. For some reason my democratic colleagues consider these correct legal answers to be evasive.
▶ 0:37:51One of them called todit a loyalty test. Under our constitutional system whoever's certified receiving the majority votes from the electoral college is the winner of the election. There is no other way to win an election for president.
▶ 0:38:10Not accepting this basic principle of our constitution, not accepting it, some of my democratic colleagues have followed with political theater asking who won the popular vote in these elections. Of course none of the nominees lack any firsthand knowledge of vote counts and why should they?
▶ 0:38:38The popular vote does not determine the president under our constitution. The electoral college does. Still some of my democrat colleagues have insulted the nominees for giving legally accurate actors -- answers by describing them as "monkey." the nominee answers demonstrates
▶ 0:39:08That they are constitutionalists and that is exactly what we should want, judges who uphold the constitution and not bend it for political attacks or insults. Today we have four judicial nominees who are cut from the same cloth. They have defended the constitution throughout their careers. I look forward to hearing from them today. Senator durbin.
▶ 0:39:38Sen. Durbin: Thank you. Congratulations to the nominees. We will hear from four nominees including justin smith who has been nominated to the U.S. court of appeals. He is the second personal attorney of president trump nominated to the circuit court following the nomination last year. He has proven his loyalty to the president. Mr. smith is to be rewarded with a lifetime appointment to the federal bench. In fact Mr.
▶ 0:40:07Sen. Durbin: Smith is so loyal to the president he continues to represent him in two pending cases before the courts. Mr. smith represents president trump in two lawsuits filed by jayne carroll. This is not a case where the legal system has been weaponized against president trump as he and his allies have repeatedly claimed.
▶ 0:40:32Sen. Durbin: Rather miss carroll is one of dozens of women who bravely come forward to credibly accuse the president of sexual assault. Mr. trump infamously bragged about his assault of women. You have heard it many times. Miss carroll's lawsuit the jury found president trump liable for sexual abuse and defamation awarding her nearly $90 million in damages. While all litigants deserve a zealous advocate, Mr.
▶ 0:40:59Sen. Durbin: Smith has gone further than most in a court filing when he baselessly dismissed miss carroll's allegations of facially implausible and politically motivated. He even submitted information to the U.S. supreme court claiming her allegations are a story that precisely matches the plot line from an episode of one of her admittedly favorite tv shows law and order.
▶ 0:41:29Sen. Durbin: There is a supreme court rule requiring attorneys to present accurate information. I would like to address the issue which the chairman has raised as to whether or not the nominees for lifetime appointments to the federal bench should be asked an unfair question like who won the 2020 election. His that an unfair question? I think it is an obvious question. What would be the answer for the 2024 election? What we are seeing is evasion. They tried to explain how the electoral college works.
▶ 0:42:00Sen. Durbin: The popular vote was won not by donald trump by joe biden in that election in 2020. That's a fact we certified that fact on the floor of the united states ended the day that there was an insurrection and demonstrators. We knew they were there but we knew our duty and the vice president let us have that effort as he should have. Mr. smith it is also an election denier. In 2020 he signed an amicus brief seeking to overturn the results of the election.
▶ 0:42:33Sen. Durbin: President trump continues to deny that he lost the 2020 election and he has bragged about interfering in this year's midterm elections. A key component of his plan is to install loyalists at the justice department and on the bench. Mr. smith's extensive right wing affiliation has ties to dark money. He served as a conservative super pac.
▶ 0:43:02Sen. Durbin: What a coincidence it is that the organization spent thousands of dollars in consulting from them to entity that Mr. smith owned. This self-dealing raises serious ethical questions, not the first in this administration. I yield.
▶ 0:43:19Chair Grassley: Thank you, senator durbin. Now we will have our colleagues introduce the nominees. I will do it in this order. Senator moran, senator marshall , former senator roberts, senator hawley and senator schmitt. Proceed, senator moran.
▶ 0:43:44Sen. Moran: Thank you for the opportunity to appear before you today. Thank you for the first time in my life to be able to appear as a predecessor before senator roberts speaks. I am grateful for that opportunity. I take my responsibilities seriously when seeking nominees to serve on the federal bench.
▶ 0:44:08Sen. Moran: One of the most significant privileges we all have is to support, to hold, to bring forth individuals of principal and professional expertise and experience and temperament to administer equal justice under the law.
▶ 0:44:24Sen. Moran: Upon confirmation of these three nominations working with both senator roberts and senator marshall, if these three nominations are confirmed, kansas six federal district judges. There are three in office and three vacancies. The six will now be filled with these three nominees.
▶ 0:44:47Sen. Moran: I have been involved in the confrontation -- confirmation and nomination during my time as U.S. senator of all six including now some additionally who serve as senior status. Senator marshall and I have been involved with two members of the 10th circuit. Our state circuit court. I'm here to introduce three fellow kansans that I know well.
▶ 0:45:17Sen. Moran: Anthony mattivi, anthony powell and jeffrey kuhlman have been nominated. I offer my strong support for each of them. Mr. mattivi for more than 20 years served as a credible prosecutor in convex cases involving drug trafficking and terrorism. Mr.
▶ 0:45:40Sen. Moran: Mattivi was confirmed as the director of the kansas bureau of investigation where he has provided strong leadership on public safety and law enforcement priorities. I have had the opportunity to work with Mr. mattivi extensively and I appreciate his dedication to serving kansans and improving our justice system. His experience in the courtroom and in law enforcement leadership positions bode well for his service on the federal bench.
▶ 0:46:10Sen. Moran: I am to want to recognize that Mr. mattivi is joined today by his wife and two of their children, a graduate of the university and matthew is currently serving our country. We are grateful for their support and the sacrifices their family make in service. Anthony powell, judge powell is joined today by his wife. He is a graduate of george washington university and washington university school of law.
▶ 0:46:40Sen. Moran: During law school he was associate editor of the washington law journal and participated in the court board demonstrating early an academic distinction. Early in his career judge powell gave experience in public service and the legislative process through roles in washington, D.C. including entrance ramp -- an internship and legislator for william brookfield.
▶ 0:47:08Sen. Moran: He entered private practice at the wichita private law firm and build a strong foundation in the law. Judge powell, from 1990 five was elected to the kansas house of representatives where he served for eight years including time as the majority whip and served on key and important legislative committees.
▶ 0:47:30Sen. Moran: After that legislative service judge powell served as a judge on the 18th judicial district in sedgwick county, kansas from 2002 until his appointment to the kansas court of appeals in 2013. After retiring in 2022 he was named kansas solicitor general continuing service to the state and in a senior legal role.
▶ 0:47:55Sen. Moran: Judge powell's korea reflects decades of public service across all three branches of government. His commitment to the rule of law have prepared him well for response abilities on the federal bench. Jeffrey kuhlman. He is a native of western kansas having grown up in ness city. Mr.
▶ 0:48:19Sen. Moran: Chairman and ranking member durbin, you know about rural parts of our state. In our efforts to find qualified judicial candidates I had a specific goal of trying to make certain that we found candidates for nomination that come from small places across our state. I am pleased that we have a candidate who not only comes from small places but who has the capability of serving as a federal judge.
▶ 0:48:51Sen. Moran: Perhaps that is nostalgia as a small town kansas kid myself along with senator roberts and senator marshall. But it also is important as our state like yours looks for young men and women to serve in rural places across our state. I want everyone in law school and the potential lawyers to know that they can work in their home towns. They can serve people in rural kansas and rural america and have a bright future in the law.
▶ 0:49:21Sen. Moran: Jeffrey kuhlman earned his bachelors degree in history from kansas state university before going on to receive his law degree from the entrance to leah -- and in school he a law school in 2013. He returned kansas and was selected to serve a clerkship for united states district judge .
▶ 0:49:48Sen. Moran: In that role he gained valuable ends on across all phases of federal litigation. Jeffrey entered private practice as a litigator under the hinkle law firm and today Mr. kuhlman is a partner at a six person law firm in kansas. Where his practice focuses on civil litigation including municipal law, constitutional matters, commercial disputes and personal injury cases.
▶ 0:50:19Sen. Moran: He was brought to my attention by his colleague, my longtime friend, who spoke to me of his character, professionalism and work ethic. Mr. kuhlman and his wife are raising their five young children in great bend. Mr. chairman and ranking member, great bend is the hometown of senator marshall, the town where I was born. Again, small town kansas. Mr.
▶ 0:50:48Sen. Moran: Kuhlman has demonstrated strong commitment to the rule of law and respect for the constitution and respect for the constitution and dedication to serving the people kansas. His experience inside and outside of the courtroom has prepared him well for responsibilities at the federal bench. I am in his federal -- professional competence.
▶ 0:51:11Sen. Moran: I am pleased to support these nominees who bring experience to private practice, federal clerkships and reflect the strength of the kansas legal community. I look forward, I appreciate the treatment in which this committee, republicans and democrats, have treated the nominees that I brought forward to your attention in the past and I look forward to the committee's consideration and hope each receives a fair review and timely confirmation.
▶ 0:51:37Chair Grassley: Thank you. Senator marshall.
▶ 0:51:42Sen. Marshall: I want to start by thanking my senior senator and his team in advancing these nominations. We have never worked harder and more efficiently on any project we have done. I want to compliment the state staff as well. It was a challenge to narrow this down to just three people. I also acknowledge senator pat roberts.
▶ 0:52:07Sen. Marshall: Senator roberts was either my congressman one of my senators for my entire adult life and I'm proud to hold the seat that he once held and appreciate his tireless fight for the people kansas. I want to thank president trump for nominating three outstanding kansans. It is an honor to join you today in introducing them to this committee.
▶ 0:52:29Sen. Marshall: I want to recognize judge eric milgram and daniel crabtree and julie robinson for their dedicated service to our state as they transition to senior status. I want to give a special shout out to my friend and mentor judge milgram who is a powerful example for these nominees. I want to add that nominee jeffrey kuhlman had the privilege of clerking for judge milgram after law school.
▶ 0:53:01Sen. Marshall: The judiciary is one of the pillars of our constitutional system. As we continue the great experiment of this republic the system of checks and balances between the branches of government depends on getting this right. The senate's role in providing advice and consent, ensuring we have the right individuals in these positions. This is one of the most consequential responsibilities of the united states senator. Courts are where the law meets real life.
▶ 0:53:31Sen. Marshall: For real families, real communities and real kansans who have something on the line. They deserve judges who understand kansas values and culture, who will call balls and strikes fairly and impartially. I want to speak to Mr. jeffrey kuhlman who grew up in a small western kansas town of ness ci ty, population 1300.
▶ 0:53:58Sen. Marshall: It is important that we recognize the diversity of these candidates. He earned his undergraduate degree at the kansas state university before attending law school in washington, D.C. yet he and his wife lauren, whose brother I delivered, made a very deliberate decision to go back home to be with family meant to raise their family with their family as well.
▶ 0:54:24Sen. Marshall: Today he is a respected attorney to a law firm that I know very well in my hometown of great bend, a community where I practiced medicine for 25 years. Jeff knows rural and western kansas inside and out. What stands out most about jeff is his sense of duty and character. He chose to serve the very community they raised him, representing local governments, cities and everyday kansans with common sense judgment.
▶ 0:54:52Sen. Marshall: He embodies the values and hard work to his roots. He will bring that same earnest to the federal bench for decades to come. Next I want to speak to tony powell. He has devoted his career to public service in kansas beginning with four terms in the kansas house of representatives. He served as cedric county district judge and later on the kansas court of appeals where he thoughtfully considered thousands of cases.
▶ 0:55:23Sen. Marshall: He recently is the kansas solicitor general. He has argued on behalf of the people of kansas in significant matters. Few nominees have served kansans at every level. Tony is a person of study character and judgment. His decades of service reflects a deep respect for the rule of law, for due process and the institutions that protect kansans.
▶ 0:55:50Sen. Marshall: He brings the balanced experience and perspective we need on the federal district court. Finally I want to introduce my friend tony mattivi. Tony earned his law degree from washburn university in kansas and began his career with the challenging work of public safety safety and upholding justice. He began as a sister act district attorney.
▶ 0:56:15Sen. Marshall: He served in the kansas attorney general's office and spent more than 20 years of the federal prosecutor and link product that -- handling complex cases like money laundering and terrorism. Among his most notable work he led the capital prosecution of the allapattah -- the al qaeda operative who masterminded the bombing of the uss cole. 17 american sailors who deserve justice and got it because of tony's relentless commitment.
▶ 0:56:46Sen. Marshall: He also traveled to iraq to advise on war crime tribunals and prosecute individuals who plotted attacks against individuals in kansas including the wichita airport in ft. Riley. Most recently as director of the kansas bureau of investigation he showed proactive leadership sounding the alarm early on fentanyl and creating child victims units to better protect our most vulnerable.
▶ 0:57:11Sen. Marshall: What defines tony is his relentless integrity, courage and commitment to killing -- keeping kansans safe. He had dedicated his life to a law of public service and with honor and without failure. I am proud of the diverse backgrounds and experience these these nominees bring. Their records are exceptional but what matters most to me as their character. These are good men of high integrity who show the core values of fairness, hard work, respect for the law and service to others.
▶ 0:57:42Sen. Marshall: They will ensure due process and delivering impartial justice to the people they serve. We worked carefully through a strong list of candidates and these three stood out. Individuals I am confident will serve the district of kansas with distinction for decades to come. Thank you.
▶ 0:57:58Chair Grassley: Thank you, senator marshall. Senator roberts, I remember how famous you are for being the author of the freedom to farm legislation. For 50 years before 1995 bureaucrats told us how much corn or beans and cotton and wheat we could raise and now because of your leadership, family farmers and I can plant
▶ 0:58:29Chair Grassley: Whatever they want to plant so thank you.
▶ 0:58:35Sen. Roberts: I thank the distinguished chairman. It is good to be back here on capitol hill in the senate. This is my first appearance in five or six years since I have retired. I cannot think of two people who I would rather see other than the chairman and the distinguished ranking member.
▶ 0:59:02Sen. Roberts: We have a history, I have a history, a privilege of working with both gentlemen. It is good to see senator hawley here. Also senator kennedy which means we are certainly on television somewhere. My job is pretty simple. It is just to summarize as best I can this unique candidate.
▶ 0:59:36Sen. Roberts: Tony mattivi is a household word almost in kansas. I am going to read something at the first of his resume which goes on and on. He presently serves as the 13th director of the kansas bureau of investigation and that agency is a very proud one and is responsible for about 400 employees.
▶ 1:00:07Sen. Roberts: It has an annual operating budget with about $73 million, 88,000 square miles. He was nominated on february 9 back in 2023. The reason I am going into all of this is that he was approved by the kansas senate 39-0. My fellow colleagues, that doesn't happen. That just doesn't happen, 39-0.
▶ 1:00:43Sen. Roberts: It indicates the tremendous support that tony has in kansas for many different reasons. He not only is qualified but as a person I think everybody that knows tony says nothing but good things and all of those things are absolutely true. Here's what tony's about.
▶ 1:01:10Sen. Roberts: I found out when I went to iraq that I had the privilege of being chairman of the senate intelligence committee at that time. We were checking out our intelligence and how it was used and things of this nature. I discovered in this material with regard to tony that he was there at the same time. I did not know that.
▶ 1:01:37Sen. Roberts: But the fact that he was there, he was giving advice and helping to lead the people who were conducting an investigation on all of the people responsible for war crimes under the saddam hussein regime. That pretty tells it well about tony. He did not have to be there by any means but he wanted to be there.
▶ 1:02:04Sen. Roberts: I'm going to stop and tell -- stop in terms of telling stories about tony at that point. It indicates the kind of person that he is. I don't know if the senate can consider tony. Wait a minute, that's not possible. Obviously we have rand paul and he would like to have a vote. That would be the only one who would vote against tony mattivi.
▶ 1:02:37Sen. Roberts: I will talk to rand to see if we can get that squared away. Mr. chairman, I will stop at that point. I feel that I have the privilege of appearing and have a person that is unique. He is not only qualified, he is held in the highest esteem of the people who have the privilege of knowing him.
▶ 1:03:01Sen. Roberts: I thank both senators for the privilege of being here and I will close.
▶ 1:03:08Chair Grassley: Thank you, senator roberts. Senator hawley.
▶ 1:03:13Sen. Hawley: Thank you. I want to say welcome and congratulations to justice smith, -- justin smith. It is a great privilege to say a word for justin. I want to start by pointing out that this is going to be the sixth federal judge that donald trump has appointed to the bench and this congress alone in the state of missouri which is something we are proud of. I want to thank the president for his focus on the state.
▶ 1:03:45Sen. Hawley: I think six is a pretty good number. I think we are doing pretty well. We have a tremendous candidate before us today. I also want to say thank you to judge dewayne bitton. He has for years been the consummate judge. He has been a man of excellence, a man of the utmost integrity. He is the most compassionate kindhearted man. The standard he has said is exceptional.
▶ 1:04:15Sen. Hawley: I know that justin will do outstanding. Let me say a brief word about justin. I know senator schmitt will say more. Justin grew up in a small town in callaway county, much like the town I grew up in. The kind of place that still believes in hard work and the rule of law. Justin went on to the university of missouri for his undergraduate degree.
▶ 1:04:38Sen. Hawley: He stated to earn his law degree where he graduated as a member of the order of the coiffed which is the law school equivalent of graduating at the very top of your class. Justin then went on to join an organization that I have fond is for, the missouri attorney general's office. We both had a stint of duty there, a tour of duty. I know senator schmitt will say more about this.
▶ 1:05:03Sen. Hawley: Justin's tenure in the missouri attorney general's office was notable not least because my colleague senator schmitt when he was attorney general decided to make justin both his first assistant and chief of staff. Those are not just credentials on a piece of paper. That reflects the judgment of the attorney general that this is someone of the highest caliber, the utmost legal credentials, the greatest ability to handle the states most important cases in court.
▶ 1:05:32Sen. Hawley: And the fact that senator schmitt selected just in for deposition speaks volumes and I know senator schmitt will speak to that in just a moment. Justin went on to work with our current solicitor general, the solicitor general of the united states when he was at the log group where justin continue to take on cases of genuine national significance including before the supreme court.
▶ 1:05:53Sen. Hawley: He has done the hard work of constitutional litigation, not just writing about it or commenting on it but actually litigating in real courts for real people that have real consequences. It is my view the eighth circuit is one of the most important appellate courts in the country. It covers eight states. The decisions shape the law for millions of americans.
▶ 1:06:14Sen. Hawley: This vacancy is very consequential and I want to thank the president for nominating someone who I think would be an excellent judge to fill this vacancy, to fill the shoes of dewayne bitton and to serve the people of the nation.
▶ 1:06:28Chair Grassley: Before senator schmitt, you folks can stay as long as you want to. If you want to go, feel free to go. Senator schmitt.
▶ 1:06:39Sen. Schmitt: I want to thank president trump for nominating justin smith. As senator hawley mentioned, missouri is leading the way with not just the numbers but the quality of candidates that have been put forth to serve. Members of the committee, thank you for holding this hearing and thank you for the consideration of justin smith.
▶ 1:07:04Sen. Schmitt: It is a privilege for me to introduce justin smith, president trump's nominated to serve on the U.S. court of appeals for the eighth circuit. This introduction is personal for me because I had the opportunity to work with justin in multiple chapters of service. He was a key member in the attorney general's office.
▶ 1:07:26Sen. Schmitt: When I brought him over to sir with me when I became attorney general, he served as his advisor in senior leadership positions including chief of staff and first assistant. I trusted him enough to bring him here as a senior advisor as well. I have seen him work up close day in and day out and justin smith is one of the finest lawyers I have ever worked with in my life. A lot of people have impressive resumes on paper. Justin clearly does.
▶ 1:07:56Sen. Schmitt: He graduated magna cum laude from the university of missouri school of law, served at the highest levels of state government and has a career that spans government service, trial litigation, constitutional law and public policy. This is not someone being nominated based on theory or pedigree. He has done the work. He has been tested and he has excelled. He brings it something else that matters a judge, or in the end.
▶ 1:08:26Sen. Schmitt: Justin has seen the law from multiple angles. He has served in the governor's office and for the missouri department of agriculture. He let a very active state attorney general's office. He has been a senior advisor in united states senate. He has built a reputation for being prepared, careful and serious about getting it right. On a personal level justin is the kind of person you want around when the stakes are high.
▶ 1:08:56Sen. Schmitt: He is calm, thoughtful, he does not posture, he does not cut corners, he listens carefully. He thinks rigorously and speaks with precision. In public life where ego and impulse can too often give away, justin has the maturity and self command that gives them confidence. I trust that his console because he earned that trust over again. He is deeply rooted in missouri.
▶ 1:09:24Sen. Schmitt: He built his career here, served the people of our state with distinction. He understands are part of the country, our legal tradition and the proper role of a judge within our constitutional system. He knows that the job is not to invent law, not to trace political fashion, not to impose personal will from the bench. The job is to interpret the law, apply it honestly and respect the limits of judicial power.
▶ 1:09:51Sen. Schmitt: That is the kind of judge he will be. This is a strong personal endorsement from someone who I have relied on time and time again and his judgment. I have watched his performance and seen his character firsthand. He has the intellect for the job, the experience and the temperament for the job. I am proud to support his nomination and I urge the committee to support as well. Thank you.
▶ 1:10:19Chair Grassley: Would Mr. smith come to the table please? Before you sit down, I would like to administer the oath. Do you swear that the testimony you are about to give is the truth, the whole truth and nothing but the truth?
▶ 1:10:39Mr. Smith: I do.
▶ 1:10:41Chair Grassley: Thank you very much. You can give your opening statement and introduce any family and friends. That is the tradition in this committee.
▶ 1:10:57Mr. Smith: Thank you chairman grassley and ranking member durbin for the opportunity to be here before this committee today. I would like to start by thanking president trump for the honor of this nomination and thanking my two senators, senator hawley and senator schmitt for those kind words and for your service to the people of missouri including in the office I was privileged to serve in. Thank you to both of you.
▶ 1:11:25Mr. Smith: I am proud to have some family and friends here with me today that I would like to introduce. I am joined by my wife who is directed to my left and to your right. We have been married for 14 years and she is my better half because she graduated near the top of her veterinary school. She crochet's blankets, can make anything with crochet needles.
▶ 1:11:49Mr. Smith: She even won a blue ribbon at the missouri state fair for her cookie recipe out of her own cookbook that she published her self. I am very proud of my wife. We have been blessed with three wonderful children. Luke is 10. Caleb is seven. Alex is five. All three of them are autistic. Thanks to senator kennedy, they are actively drawing right now.
▶ 1:12:17Mr. Smith: My 5-year-old gave me a note I can rely on when questioning gets tough. It says, I love you, dad. Which I appreciate because she just learned to write. They are also athletic. We love boardgames and they are a joy to have. They were excited about today because they got to wear fancy clothes and fly in an airplane. I think they look terrific. My parents are also here along with my sister.
▶ 1:12:46Mr. Smith: I will never be able to thank my parents enough for the sacrifices that they made for me and for the investment they have made my entire life in helping me become who I am today. I am the oldest of five and my three brothers, jason, jonathan and joseph are busy working today but they are here in spirit. Like parents did like the letter j when it came to names. My in-laws are here and my brother-in-law. I am proud to have them here.
▶ 1:13:17Mr. Smith: I have been blessed to have great in-laws who welcomed me to the family and treated me as one of their own ever since I entered the picture. My other brother-in-law is watching from home with his family as well. I am very grateful to be here today and there are many other friends and family watching. It is a true honor to be before you today. I welcome the questions that you have for me. Thank you Mr. chairman.
▶ 1:13:43Chair Grassley: We will have five minute rounds for every member. Before I ask questions, after I'm done with my questions, senator schmitt, I understand you will take over for me while I go to the finance committee. For the rest of the hearing. Ok, thank you. Mr. smith, congratulations, first of all.
▶ 1:14:14Chair Grassley: During your career you worked with some of the countries most elite attorneys like solicitor general john's hours and my colleague on this committee, senator schmitt. What did you learn from the attorneys you worked with and how has working with them shape your view of the law with emphasis upon shaping the view of the law?
▶ 1:14:44Mr. Smith: I have worked with some elite attorneys throughout my career. I am privileged to learn from some very fine people. You mentioned some of them. Senator schmitt was a terrific attorney who I worked for for the time that we had together. I learned a true commitment to public service about doing the right thing for the right reasons every single time, having a deep love for the country and the constitution and allowing that to be a rock.
▶ 1:15:17Mr. Smith: Senator schmitt is someone who has true values that he has day in and day out. It is something I really respect about him. The other thing that I really respect among many things is his commitment to his family and making sure they are always a priority for him. Watching senator schmitt over the years, he is such a special person who brings happiness to a bunch of lives. He has always encouraged me to be a better husband and father.
▶ 1:15:48Mr. Smith: Senator schmitt has two daughters and a wife and he is actively involved in their lives. I have been privileged to watch him as a great role model. From solicitor general sour, I am privileged to learn from one of the best solicitor general's have ever met. He puts in the time day in and day out. He can have a brief written before people come in. He is an earlybird.
▶ 1:16:20Mr. Smith: He studies so carefully and in attention to detail from cases dating back hundreds of years and understanding the original public meaning of our important governing documents. Those are some of the things I have learned and that I will take with me if I was fortunate enough to be confirmed by this body.
▶ 1:16:36Chair Grassley: Secondly, you have worked in the missouri department of agriculture and the attorney general's office to protect the rights of farmers and their businesses and you have also written about regulatory landscape, how it impacts the family farmer.
▶ 1:16:59Chair Grassley: All have these experiences prepares you to serve on the eighth circuit which as jurisdictions over many rural and agricultural states including iowa?
▶ 1:17:10Mr. Smith: Agriculture is an incredibly important issue, something you have championed your whole career. Agriculture is next to the top in every single state in the eighth circuit. It certainly is in missouri and iowa. I am privileged to be able to have worked with some great farmers and folks across missouri. Those roles, good hard-working people.
▶ 1:17:36Mr. Smith: I have been proud to stand up in court and defend legislation that affects farmers. I am grateful to be able to help ease some of the regulatory burden. We had a regulation in missouri that dealt with the training of milk callers -- haulers. For the longest time ever required in-person training. We were able to make that a virtual training and something accessible to multiple people if they wanted to get into the business.
▶ 1:18:05Mr. Smith: I am grateful to have the support here today of missouri's leading agricultural organizations and I am looking forward to continuing those strong relationships.
▶ 1:18:14Chair Grassley: My last question is you have litigated numerous appeals at the state and federal level including the court to which you have been nominated. You have also advocated before the missouri supreme court and the U.S. supreme court. What have you learned from your appellate practice that will help your review of complex cases before the eighth circuit?
▶ 1:18:38Mr. Smith: I have been privileged to work on some important cases with some great attorneys. When the stakes are high one of the things I have learned is the importance of professionalism, treating everyone with dignity and respect even in cases that have strong emotions and making sure that everyone can still be friends and professionals at the end of the day.
▶ 1:19:03Mr. Smith: Taking the work seriously and making sure that I've done everything I can to give my very best work which is something that is very important to me. To be a zealous advocate, to do my best and the trust of the court to apply the rule of law to whatever case I have brought before them.
▶ 1:19:17Chair Grassley: Thank you. Senator durbin.
▶ 1:19:22Sen. Durbin: Mr. smith, welcome. Congratulations on the nomination and your family. A beautiful family that you have brought with you today as your support. If the questions get tough, you have reinforcements ready to spring into action I'm sure. Let me ask a basic question, will you acknowledge that president trump lost the 2020 election to joe biden?
▶ 1:19:45Mr. Smith: I acknowledge as chairman grassley was talking about that under article two and the 12th amendment that the electoral college cast their votes in december of 2020 and january of 2021 congress meant to open and count those votes and as a result of that process congress certified joe biden is the president. >> who won the popular vote in the 2020 election?
▶ 1:20:12Mr. Smith: The popular vote is not mentioned in the constitution. >> it is a basic question. If you took an eighth grader from kansas and missouri and iowa and illinois it and said who won the popular vote in the 2020 election and they submitted an explanation of the electoral college who could not give them a passing grade. As an american citizen who I am sure voted, who won the popular vote?
▶ 1:20:38Mr. Smith: As an american citizen and someone who senator schmitt said cares about precision I want to be clear that as a lawyer looking at the constitution, it is the electoral college that matters and that process placed fourth in december 2020 and january of 2021.
▶ 1:20:55Sen. Durbin: At the end of this exercise at some point there is going to be a video released which will watch the painful explanation by every nominee from the trump white house for the federal bench as to why they could not answer the basic question every single person in this room knows is true. Donald trump lost the election in 2020 to joe biden. He may have regretted it. He may have denied it but it is a fact.
▶ 1:21:23Sen. Durbin: The reason we continue to engage in these political gymnastics is a question about whether you can ever say no to donald trump when it comes to any future service. And that is a basic concern. Another concern I have, you are very active in political organizations. In 2023 you served as treasurer for a political committee in the club for growth action missouri.
▶ 1:21:47Sen. Durbin: You were also somehow you owned a company which did $15,000 in general consulting with the club for growth. You are currently a board member of the yorktown fund and first principles action both of which are right wing organizations with connections to leonard leo. Based on public records three groups involved in political consulting are registered at your address.
▶ 1:22:16Sen. Durbin: Remington research group, madison mcqueen and ramada strategies. By my count that as seven different organizations that you have affiliation with and they all have one thing in common, they are right wing organizations. What we ask nominees even when democrats seek positions like this, is if there was still a chance that you became circuit judge that you would have any objectivity when it comes to political questions and what has been found in the past in this committee is that somebody
▶ 1:22:46Sen. Durbin: Engaged in socialist poetry in high school, they are disqualified. Now we have you with at least seven right wing organizations where you have some affiliation or leadership. Is there any chance you could be objective in the future?
▶ 1:23:00Mr. Smith: Ranking member durbin, I would be fair and impartial in any case that came before me. Let me explain why. But first let me correct some of the information in your question. Respectfully, three of those organizations you mentioned I have no affiliation with. I know there are some staff that had some questions. There was a clerical error in one report that listed my home address for three of those organizations.
▶ 1:23:29Mr. Smith: If you looked at the ethics committee those were organizations that are based in different parts of the country. Florida, kansas city and california and they have been reported that those addresses dozens of times in many different states. There was a simple mistake on a report that I did not review. I have no affiliation with those groups. As to the other organizations you mentioned, one thing about me is I have been grateful for opportunities to engage in our political process throughout my life.
▶ 1:24:01Mr. Smith: It is something my dad and I did growing up because it was something fun as a father and son to meet our elected officials. During college and law school and my career I have been great friends with a bunch of people who do not share the same views as me. You have letters before you from people of many different political parties who are strongly supporting me because they know the type of person I am. Some of the letters, I think there is one from the dean of the university of missouri law school.
▶ 1:24:30Mr. Smith: He notes in the letter that we do not agree on everything but he strongly supported me because of the character and the type of person I am. In every case I have been involved in, some of which have political issues, I have depended on judges to set aside their personal views and treat my case fairly, to apply the law and the facts of the case that I brought before them, and to do so without regard to partisan affiliation.
▶ 1:24:54Mr. Smith: That is the kind of judge I strive to be, to set aside personal views and to apply the law and the facts because that would be my role as a judge, not as an advocate but as a judge where any personal ties I had would no longer be relevant.
▶ 1:25:08Sen. Durbin: Thank you. >> I would like to enter into the record a letter supporting Mr. smith's nomination from the university of missouri school of law which praised Mr. smith's moral leadership and stated I know there are some issues of jurisprudence including methods of constitutional interpretation about which Mr. smith and I disagree.
▶ 1:25:32Sen. Durbin: Such disagreements does not diminish my support in someone who cares about the fundamental rights and due process. Without objection, so entered into the record. Senator kennedy.
▶ 1:25:50Sen. Kennedy: Mr. smith, congratulations. Why do you think my democratic colleagues are so keen to solicit your opinion about who won the election?
▶ 1:26:14Mr. Smith: Senator kennedy, I don't mean to speculate about what they are doing. It is a consistent theme.
▶ 1:26:22Sen. Kennedy: Go ahead.
▶ 1:26:23Mr. Smith: I want to be very careful, senator. That is an issue of political importance to the people. It is something that has become a theme that apparently some senators think it is worthy of putting on the video clips to share with their friends and followers.
▶ 1:26:42Sen. Kennedy: The suggestion has been made and I have heard it made several times by some of my colleagues. My friend senator durbin just made it. Somehow if you don't disagree with the president's position on the election, it proves you cannot stand up to the president. Is that true?
▶ 1:27:11Sen. Kennedy: Is that the way you understand the question?
▶ 1:27:13Mr. Smith: I think you are right, senator. That is the framing of the question.
▶ 1:27:20Sen. Kennedy: When you are on the bench, if confirmed, and you have to make a decision in the case, do you think the president is going to be aware of every case you have to make a decision in?
▶ 1:27:36Mr. Smith: I would expect not to .
▶ 1:27:41Sen. Kennedy: Do you expect him to call you up? Do you think you are going to call him up?
▶ 1:27:49Mr. Smith: I would thoroughly not be doing that.
▶ 1:27:51Sen. Kennedy: That is kind of absurd in this scenario.
▶ 1:27:54Mr. Smith: The very last time I stood up in the court of appeals in february of the ninth circuit I was adverse to this administration. The department of justice was arguing against me.
▶ 1:28:09Sen. Kennedy: Do you think it is ok as an american. I'm not talking about yourself as a judicial nominee. Do you think as an american it is ok to disagree with the president?
▶ 1:28:28Mr. Smith: I to disagree with people I'm very close with so I do agree.
▶ 1:28:34Sen. Kennedy: Do you think it is ok to agree with a comment made by the president?
▶ 1:28:38Mr. Smith: I think people agree and disagree on things all the time.
▶ 1:28:42Sen. Kennedy: Do you agree with everything president biden said and did?
▶ 1:28:47Mr. Smith: I don't believe I would disagree or agree with everything he said.
▶ 1:28:53Sen. Kennedy: Do you agree or disagree -- do you agree with everything president trump has said or done?
▶ 1:29:02Mr. Smith: Senator, I'm sure there are things that I don't agree with.
▶ 1:29:07Sen. Kennedy: Ok. And if you and if you disagree, let's say, with the president, about something he or she has said or done and you have got one opinion as an american, the president has another opinion and it is public across america who gets to decide what is right?
▶ 1:29:36Mr. Smith: Well, sir, I think the constitution and the rule of law would decide. That is what I would be applying faithfully to whatever the parties were.
▶ 1:29:42Sen. Kennedy: Do you think the press gets to decide?
▶ 1:29:45Mr. Smith: No, senator.
▶ 1:29:47Sen. Kennedy: The american people get to decide, don't they?
▶ 1:29:50Mr. Smith: The american people have an important part with electing our officials.
▶ 1:29:56Sen. Kennedy: They get to watch the dialectic, the competing ideas and say, well, you know, we kind of agree with this one and we disagree with that one. What is wrong with that?
▶ 1:30:09Mr. Smith: I think the founders set up that system, where people would make the decisions on who is leading the country.
▶ 1:30:16Sen. Kennedy: Ok. I'm almost out of time. Are you an originalist?
▶ 1:30:27Mr. Smith: I am, senator.
▶ 1:30:29Sen. Kennedy: What does that mean.
▶ 1:30:31Mr. Smith: When attempting the constitution it is attempting to determine the original meaning of whatever provision --
▶ 1:30:38Sen. Kennedy: What do you mean by public meaning?
▶ 1:30:41Mr. Smith: That whatever the provision at issue is, how it was understood by the people --
▶ 1:30:46Sen. Kennedy: By the people? Why don't we look at the drafters?
▶ 1:30:50Mr. Smith: That is part of the process, senator.
▶ 1:30:53Sen. Kennedy: You think the people at the time the constitution was approved -- my guess is they were busy, kind of like americans today earn a living. You think they poured over the constitution and read every single word and thought about the consequences in the future? I'm not saying you're wrong, but why does the public meaning matter more than the drafters' intention?
▶ 1:31:19Mr. Smith: I think if you look at opinions from justice glia in the heller case, there are historical sources you look at understand what the words meant that the drafters wrote and adopted.
▶ 1:31:32Sen. Kennedy: Why would we say it is the public meaning by the people instead of what the drafters intended? That's all I'm asking you. There is no right or wrong answer. The chairman is going to cut me off in a second. Like a dead stump. I'm just asking you why.
▶ 1:31:49Mr. Smith: I think trying to understand more -- understand words as they were written 230 years ago there is a process of consulting with what the drafters said in looking at different communal, how are they?
▶ 1:32:01Sen. Kennedy: You can finish later if you want. I do want to abuse my good friend who is letting me go on here. >> thank you, senator. Senator blumenthal.
▶ 1:32:13Sen. Blumenthal: Thank you, Mr. chairman. Mr. smith, you signed an amicus brief in december 2020 supporting an effort to dispute the outcome of the 2020 presidential election. I have been asking all of the nominees about who won the 2020 election. I understand you may have been asked already this morning. I want to hear it for myself.
▶ 1:32:44Sen. Blumenthal: Who won the popular vote in the 2020 election?
▶ 1:32:47Mr. Smith: You're right, senator, I have been asked that by one of your colleagues already and as I explained, the popular vote was not part of article two or the amendment. There is an electoral college that meets and there -- they are cast -- the cast electoral votes.
▶ 1:33:07Sen. Blumenthal: Won the election?
▶ 1:33:10Mr. Smith: The person who became president --
▶ 1:33:13Sen. Blumenthal: In other words you are not going to answer, you are going to give me the same rehearsed answer, frankly, it makes you look ridiculous. If not pathetic. And I will ask you another question, give you an opportunity, maybe, to be more forthcoming to this committee. Who won the popular vote in the 2020 election?
▶ 1:33:38Mr. Smith: As I was just saying, the popular vote is not something --
▶ 1:33:43Sen. Blumenthal: I'm asking you who won it? As a member of the court of appeals you are responsible for looking to the facts, as well as the law. Ranted, facts found by the trial court, and I'm asking you to look at the facts here and give me a straight answer. Who won the popular vote in the 2020 election?
▶ 1:34:12Mr. Smith: In january 2020 one is when congress counted the electoral votes and certified joe biden as president.
▶ 1:34:19Sen. Blumenthal: So you not going to answer my question? You know, I would have thought, here you are as a nominee -- I recognize the anxiety that someone in your position may feel. The fear that the president of the united states may be watching. But you are in hey pretty secure position. As a member of the court lifetime tenure you wore in an indisputably secure position.
▶ 1:34:48Sen. Blumenthal: If you don't have the courage now to state your independent judgment on a clear factual issue, I don't know how the united states senate can confirm you as a member of one of the most powerful courts in the country. Let me ask you, finally, did donald trump lose the 2020 election?
▶ 1:35:20Mr. Smith: As I said a moment ago, senator, when congress counted the electoral college votes in january 2021 joe biden one certified. -- was certified.
▶ 1:35:24Sen. Blumenthal: Let's try another topic. Was the united states capitol attacked on january 6, 2021?
▶ 1:35:33Mr. Smith: I want to be very careful on the language I use because there are cases that have been filed in the eighth circuit where the characterization of that day has been central to the case, and as a judicial nominee at a want to prejudge those cases that might come before me.
▶ 1:35:47Sen. Blumenthal: Have you seen video footage of that attack?
▶ 1:35:53Mr. Smith: I have seen the news reports from that day, yes.
▶ 1:35:54Sen. Blumenthal: And what did you see in those videos?
▶ 1:35:56Mr. Smith: I think what the supreme court in the three cases they have handled has issues related to that day, the trump versus anderson case out of colorado, the trump versus united states case I was privileged to handle.
▶ 1:36:09Sen. Blumenthal: Did you see people punching capital police officers? They are the ones outside his hearing room protecting us. Did you see the violent attackers punching, taking, beating capital police officers?
▶ 1:36:23Mr. Smith: I want to be very clear that I condemn violence on that day and every day and I'm very grateful for the men and women of law enforcement --
▶ 1:36:31Sen. Blumenthal: And you saw them attacked on that day, did you not?
▶ 1:36:35Mr. Smith: I believe the language the supreme court has used is that there was a breach of the capital.
▶ 1:36:41Sen. Blumenthal: Did you see people throwing things at those officers and at the capitol?
▶ 1:36:46Mr. Smith: Senator, as I said, I condemn the violence that occurred that day and as occurred on other days as well.
▶ 1:36:52Sen. Blumenthal: Would you agree with me that would happen on that day was a violent mob attacking the capitol? You seen the videos.
▶ 1:37:06Mr. Smith: I have seen the videos, yes, senator.
▶ 1:37:09Sen. Blumenthal: You would agree?
▶ 1:37:11Mr. Smith: I will say what I have said several times now, that I condemn the violence and I would use the language of the supreme court in those three cases.
▶ 1:37:18Sen. Blumenthal: I really regret that you don't have to grit to stand up and speak out on an issue of such fundamental importance and that you are, in fact, intimidated by the remote's brecht -- remote prospect that the you president of the united states might take umbrage and withdraw your nomination. If you don't have the courage to tell this committee the truth you don't deserve to be on the bench. Thank you. >> senator hirono.
▶ 1:37:49Sen. Hirono: Thank you. I ask the following two initial questions of all nominees becoming -- before any committees on which I set to ensure the fitness of a nominee to serve. So, I will ask you the following. Since she became a legal adult have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?
▶ 1:38:20Mr. Smith: No.
▶ 1:38:21Sen. Hirono: Have you faced discipline during tilt -- entered into a settlement involving misconduct?
▶ 1:38:27Mr. Smith: No.
▶ 1:38:29Sen. Hirono: Mr. smith, on july 30, 2024 you wrote a post on breitbart endorsing a missouri attorney general candidate. Do you recall that post?
▶ 1:38:42Mr. Smith: I do, senator.
▶ 1:38:48Sen. Hirono: In the post you wrote "republican attorneys general are critical in the fight against the radical left. We need true conservatives to defeat the abortion industrial complex, the lawlessness plaguing blue cities, and the woke ideology invading our schools. Can you define the word woke?
▶ 1:39:13Mr. Smith: Senator, I was very proud to support my friend who was running in that election. That was a piece of political advocacy, and as I was explain, the partisan views for political activity I've had before would play no bearing on my role as a judge.
▶ 1:39:29Sen. Hirono: Well, you are not responding to my question. Can you define for me what constitutes woke ideology?
▶ 1:39:38Mr. Smith: Senator --
▶ 1:39:40Sen. Hirono: You meant something. I would like you to tell us what you meant by that.
▶ 1:39:45Mr. Smith: In the course of a political campaign that was a piece that I was -- that I put out. In support of my friend. But as a judicial nominee I don't think it is appropriate for me to start commenting on political views, because as a judge I would not be applying those partisan or personal views while I was on the bench.
▶ 1:40:05Sen. Hirono: The thing is, this whole idea of woke ideology and dei -- you know, the president has issued an executive order telling all of his administrative agencies to eliminate any support of dei. And so, you're going to get cases that use terms like woke or dei, etc. I think it would be good for us to know what you mean. By what you wrote.
▶ 1:40:35Sen. Hirono: And you are not going to respond, so, there you go. You have been asking number of questions by number of my colleagues about who won the 2020 election, and he testified today that it is the electoral college that matters. In determining who is the president. The house and senate was in the process of certifying electoral votes on january 6.
▶ 1:40:58Sen. Hirono: Do you acknowledge that riders on january 6 saw it to stop this process to prevent joe biden from being the president? That is a yes or no question.
▶ 1:41:13Mr. Smith: I understand that the counting of electoral votes was interrupted on january 6. I want to be very careful in getting too much further beyond that because there is active litigation.
▶ 1:41:24Sen. Hirono: I think it is pretty clear what the rioters' intense work. You won't answer that straightforward question. I have another one. Do you also acknowledge that a number of these rioters, some 1500 or so of them, were convicted and that president trump pardoned them? Do you acknowledge that fact? Yes or no?
▶ 1:41:49Mr. Smith: I think that is what happened, senator.
▶ 1:41:54Sen. Hirono: So, you represented -- I'm glad you actually acknowledged a factual question. That he pardoned all of these rioters who are very intent on beating up our police here and trying to stop the counting of the electoral college. So, Mr. smith, you have represented president trump multiple lawsuits.
▶ 1:42:19Sen. Hirono: In which he has been found liable for defaming and committing sexual battery against e. Jean carroll. In these cases you represented the president bama his personal capacity. If a case comes before you in which president trump's personal interests are heavily implicated , will you recuse yourself?
▶ 1:42:42Mr. Smith: Senator, I have been very proud to represent the president in those cases. I will recuse from any case I've been personally involved in. Any other case I would consult the appropriate recusal rules. I may need to consult with my colleagues.
▶ 1:43:00Sen. Hirono: Considering the representation you have provided, you do cite the code of conduct for the united states judges and it requires a judge to disqualify himself "in a proceeding in which the judge's impartiality might reasonably be questioned." I would say in any case involving president trump's personal interests you should recuse yourself because it is clear where your loyalties lie. Thank you, Mr. chairman. >> senator hawley.
▶ 1:43:29Sen. Hawley: Mr. smith, congratulations. I look forward to seeing you behind the dais here sometime soon in the eighth circuit. Let me ask you, you served as chief of staff and first assistant to my predecessor, now my colleague, senator schmitt. Missouri took on some of the most consequential state-level litigation in the country.
▶ 1:43:55Sen. Hawley: Vaccine mandates come big tech censorship, the landmark case against china which resulted in a $24 billion judgment. Can you describe for us the role played in setting litigation strategy while you were in office and what those cases talk you about the relationship between state sovereignty and federal power?
▶ 1:44:15Mr. Smith: We had a great team in the attorney general's office led by the person who came after you, and now senator schmitt. In each of those cases you mentioned in my role I got to help lineup the attorneys who would work on the case, work with them on strategy, and arguments, review, draft and final pleadings.
▶ 1:44:38Mr. Smith: Was the attorney of record when the case was filed and would help throughout the course of the litigation with whatever the team would need during we had some great attorneys in that office. I was proud to be part of the team. As it relates to the last part of your question on state sovereignty, the founders set up a very important vertical separation of powers that -- in which states play a key role and in the attorney general's office I learned how important the state sovereignty and the ability to represent those interests in that office can be.
▶ 1:45:09Sen. Hawley: I want to shift gears for second and talk about a report that was released yesterday by the department of justice on the incredible weaponization and targeting of persons of faith in this country and pro-life americans. I want to hers for you a catalog -- I'm sorry to say it is a very sorry catalog of abuse of power perpetrated by the last administration at the highest levels of that administration.
▶ 1:45:39Sen. Hawley: The fbi, the department of justice, all the way to the white house. The report was based on 700000 and 10 a record that detailed in striking detail, with striking specificity, I should say, how department of justice under joe biden use the face act to go after pro-life americans. That is, they used pro-abortion groups, they brought cases that were tenuous at best and ordered to intimidate pro-lifers.
▶ 1:46:11Sen. Hawley: People like mark houck, who was and is a law-abiding citizen who had the temerity to go and pray outside an abortion clinic, and for that "crime" had a federal swat team show up at his home, drag him out, handcuff him in front of his children who were screaming. A jury later acquitted him, thank goodness, on all charges.
▶ 1:46:35Sen. Hawley: This is the same people who at the same time in the biden justice department, while churches were being firebombed, while pregnancy care centers were being vandalized, they did nothing. The striking disparity is unconscionable. This is also an administration that recruited spies, recruited informants in the catholic parishes in this country, perishes the last administration deemed to be suspect, whose theology they did not like.
▶ 1:47:03Sen. Hawley: He wanted to try to get informants in the parishes to work with the fbi to spy on american parishioners. This is the kind of thing that is unheard of in american history, this deliberate targeting of people of faith. This is my question to you. You will if you are confirmed to be on the bench and have charge of affirming the constitution of the united states.
▶ 1:47:27Sen. Hawley: Tell us about the importance of the first amendment, about the importance of religious liberty, and the importance of this bedrock principle for the civil rights and political rights of all americans that your religious faith should not make you an enemy of the state in this country. What are your views on this.
▶ 1:47:41Mr. Smith: The first is the beating heart of the constitution. It is incredibly important. The free exercise clause, the freedom of speech, those core provisions you were mentioning. I know this has been an issue you have championed, and I would point out that I was privileged to be cocounsel for Mr. houck in a case that was filed after he was acquitted to try to compensate his family for the rate at his house, for pointing the long guns at his wife and children.
▶ 1:48:09Mr. Smith: It was a settlement we work out earlier this year on that case to try to compensate for what had been done. You are right, it was for some terrible facts from that case and we were grateful to have worked out a resolution in that case.
▶ 1:48:23Sen. Hawley: Let me see if we can establish you and I together a basic constitutional baseline. Should any american citizen be disfavored in law on the basis of their religious faith?
▶ 1:48:35Mr. Smith: Absolutely not.
▶ 1:48:37Sen. Hawley: Should any american citizen be targeted by law enforcement on nothing more than the basis of their religious faith?
▶ 1:48:43Mr. Smith: Senator, I don't want to prejudge any case, but I think this "has said that viewpoint discrimination is not something that the government should never do.
▶ 1:48:53Sen. Hawley: Is the federal government entitled to keep lists of churches it illogically disagrees with, regards therefore as a suspect, and use the federal law enforcement power to recruit spies, to recruit informants or otherwise disfavored these religious organizations? On nothing more than the basis of their theology?
▶ 1:49:14Mr. Smith: I think the supreme court has said time and time again the federal government is not supposed to be discriminating against anyone for their religious views.
▶ 1:49:22Sen. Hawley: That is exactly correct. The answer to all of those questions is no, no, no, and it is time we had in this country be returned to the rule of law and the protection of the first amendment of the united states. Yesterday's report was an incredible wake-up call. It should be. I hope part of the remedy to this end the incredible abuse we have seen in the last four years, five years will be people like you on the bench, Mr.
▶ 1:49:48Sen. Hawley: Smith, who well apply our constitution and the rule of law evenhandedly and without fear or favor. I look forward to seeing you on that bench. You, Mr. chairman. >> senator whitehouse.
▶ 1:50:00Sen. Whitehouse: Thank you, chairman. Easter smith, I would like to walk through what I see as the backdrop to this proceeding. As you may know, I think that there has been a deliberate effort to capture our courts, by, basically, right wing billionaires, many associated with fossil fuel interests.
▶ 1:50:25Sen. Whitehouse: That the capture focused particularly supreme court. That it has been successful. That the traditional methodology that has a huge literature in the field of economics and administrative law of regulatory capture and agency capture, in the same way that the robber barons who ran mines capture the mining safety commission, so they always got the rules they wanted, and in the same way that railroad errands capture the
▶ 1:50:57Sen. Whitehouse: Railroad rate commissions, so they always got paid what they wanted. An effort was made that has been effective to capture the supreme court that is the background that I start with. One of the point people for this crew of right-wing billionaires is a guy named leonard leo. He was sort of their agent and court fixer in this effort.
▶ 1:51:24Sen. Whitehouse: -- I have described a graph before that describe the corporate structures he set up for this effort. I referred to it as the leo bug, because it looks like an insect. This is the original shape of his effort. These central groups tend to be actual corporate entities. These are fictitious names. Fictitious names through which the other entities can operate.
▶ 1:51:56Sen. Whitehouse: Lexington fund is yellow here because until recently it was called concorde fund. What happened with the leo bug is that a billionaire dumped on leonard leo a $1.6 billion slush fund through the marble freedom trust. And in the wake of that enormous floor funds we have seen the leo bug metastasize.
▶ 1:52:25Sen. Whitehouse: One new element is something called alliance for consumers action. It is another fictitious name in this case for the renamed lexington fund. If you take a look at alliance for consumers action you see that there are actually five different groups that are almost identically named.
▶ 1:52:47Sen. Whitehouse: Alliance for consumers action fund, lines for consumers fund, lines for consumers action, alliance for consumers action fund, and alliance for consumers action fund. And they are connected to various different groups for which they operate under for dishes names. So, lexington fund and concord are two in the original leo bug.
▶ 1:53:15Sen. Whitehouse: If you go back to the original bug you also see the honest elections project. This was used to file an amicus brief in the supreme court without disclosing its affiliation with the judicial crisis network, which spent millions of dollars to get three leonard leo-selected supreme court justices appointed to the court. They didn't bother to disclose that. They filed an amicus brief in court under a fictitious name.
▶ 1:53:46Sen. Whitehouse: And post-marble freedom trust and the $1.6 billion we have seen the honest elections project also metastasize. Now there is an honest elections project, there is an honest election project -- not plural -- there is an honest election project action fund, there is an honest elections project fund, there is an honest elections project action, and honest election project action.
▶ 1:54:13Sen. Whitehouse: And they connect to, as fictitious names for those same four leonard leo entities, lexington trust, lexington fund, yorktown fund, 85 fund, concorde fund, and the new one, the publius fund. That is a lot of corporate activity. If you want to pull this old leo bug in its rather dark simplicity looks like, this is know what it looks like.
▶ 1:54:42Sen. Whitehouse: You're more than 20 organizations, all with these very alike names. American parents coalition fund, american parents coalition action, american parents coalition action, and they all collect as fictitious names of those five leo entities. That is a pretty remarkable creation. Presumably designed to mislead.
▶ 1:55:12Sen. Whitehouse: Why would you lead -- need five or six virtual names for fictitious names, screen corporate entities? You have connections with all most all of them. You have connections with the yorktown fund. Have connections with the concorde fund. Have connections with the lexington fund. You have connections with club for growth action missouri. First principle actions. Defend missouri.
▶ 1:55:44Sen. Whitehouse: All of which get money from the leonard leo bug, from that operation. It looks like what we have here is somebody who is going to be planted on the court and by your time, until you get a case in which this group of front groups has an interest, and then they will turn up the way they do in the supreme court, in a flotilla of phony front group amici.
▶ 1:56:18Sen. Whitehouse: I'm here to predict that you will rule for them 100% of the time. >> thank you. My democratic colleagues have repeatedly issued this refrain about alleged ties to conservative funding groups, and it is totally hypocritical. I will point out my democratic colleagues repeatedly supported president biden's nominees, who had ties to "dark any." they all supported amir ali.
▶ 1:56:46Sen. Whitehouse: And they supported nancy malden otto, who expressly coordinated her nomination with raven group demand justice and the alliance for justice, all liberal dark money groups. Mr. smith --
▶ 1:56:57Sen. Whitehouse: Since the chairman has chosen to -- >> u.n. Over time, senator.
▶ 1:57:02Sen. Whitehouse: Everybody has went over time. >> I gave you the same amount of time.
▶ 1:57:07Sen. Whitehouse: But you also called me out afterwards. >> I was rebutting a refrain that deserves a response. Now it is my turn to ask questions, senator. Mr. smith, you have served in private practice. You have been in different positions in advisory offices. Have those roles shape your understanding of the judicial role that if you are confirmed you will have eighth circuit?
▶ 1:57:34Mr. Smith: I have been very grateful for the opportunities I have had. I have worked at a big firm, a small firm. I have represented companies and individuals and I have also gotten to represent children. I was a guardian for some foster kids who were born to really bad situations. I became their attorney at day three, another it to four, and was able to represent them until I got adopted into really good homes.
▶ 1:58:02Mr. Smith: Even though they may never know who I was I was really grateful to get to play a small role in their future. I got to see in the cases that we handled in the missouri attorney general's office the importance of judges applying the rule of law, the constitution, and the appropriate statutes and to do so fairly and impartially.
▶ 1:58:26Mr. Smith: And the governor's office I also wonder -- learned about the attention to detail and learning really complex and detailed records that sometimes span decades. I got to be a part of some really important and meaningful decisions and that she in the clemency process and making decisions that write its wrongs in the past. All of those experiences have made me a really well-rounded person to see the lies you -- you said in your opening remarks from a lot of different angles.
▶ 1:58:54Sen. Schmitt: I want to ask you about a moment you had maybe in one month -- in one of these positions, or in your role as an advocate, or when you were making, you are giving the defense of illegal position that -- a legal position that was unpopular that made have cost you real professional or personal cost. Was there a moment you can point to where the kitchen was pretty hot?
▶ 1:59:24Sen. Schmitt: And you stood your ground and defended the law?
▶ 1:59:26Mr. Smith: I would point to august 2023, where we greeted our firm to represent the president of the united states. He had just been indicted the fourth time. You know, a lot of the lawyers he had had years before had also been indicted in some of those cases.
▶ 1:59:47Mr. Smith: There was a decision that my colleagues at the firm and I understood, and that we thought was important to the constitution and rule of law to be able to be zealous advocates and take on president trump's case, and we were proud to have done so. There were some people who thought that was not the smartest thing to do. He, you know, at the time it was not certain he would -- how he would fare in the election.
▶ 2:00:11Mr. Smith: But it was still important to me individually and my colleagues to be able to take on that case, even though it did carry great professional and personal risk. I'm grateful we had the opportunity to represent president trump in that case.
▶ 2:00:24Sen. Schmitt: You know, I am -- as you know, this is a very different hearing for me, given, you know, the relationship that we have had and the trust that I have placed in you him and you earned it every single time. One of the questions that I on this committee now, being a former attorney general at a time where there were a lot of challenges we made that at the time, especially during covid, you know, some people did not like what we did.
▶ 2:00:55Sen. Schmitt: Some people liked what we did but felt like it was important to stand up for people whose rights were being abused. And you were there every step of the term. Every step of the way. What I try to get to in this committee, I think that coming you know, you have answered the originalist question. All of these questions that are important questions. There is no doubt about it. These are important questions to ask. You are about to serve on a very important appellate court.
▶ 2:01:22Sen. Schmitt: But I try to get at the sort of courage test that is really hard to get at when you don't know somebody and you have a hearing. That's why ask the question, has there been a moment where you really stuck to your guns? You knew it might not be unpopular but it was the legally right question to -- addition to have print with you I already know the answer, because I have seen you do it. I have seen you do it time and time again.
▶ 2:01:51Sen. Schmitt: And no posturing, just a very calm, steady demeanor that is ideally suited for the judiciary. I can't recommend somebody enough. I already have for this position, and I'm really proud of you and you're going to make a great judge, because you appreciate the law. You appreciate our constitutional system and the protections that are both vertical and horizontal built into our system.
▶ 2:02:21Sen. Schmitt: It is in your core and I trust that you are going to do a great job and, congratulations. Senator welch.
▶ 2:02:29Sen. Welch: Thank you very much. I was watching some of the earlier questions and answers, including about the election and I want to follow up a little bit on that. Who won the 2022 election for the united states senate in missouri?
▶ 2:02:53Mr. Smith: I think under the 17th amendment the election for united states senate is carried out differently than the election for president. Prior to the 17th of may meant the senators were chosen by state legislatures and that was a process in this country firtash
▶ 2:03:01Sen. Welch: I didn't ask for a history lesson. I'm asking who won the 2022 election for the united states senate in missouri.
▶ 2:03:10Mr. Smith: I think the history is important to explain in the --
▶ 2:03:14Sen. Welch: I'm going to interrupt you. Save it. It might be important, but somebody ran and some but he won that election. And asking you who won that election.
▶ 2:03:23Mr. Smith: The missouri secretary of state certified eric schmitt as the winner of the 2022 election.
▶ 2:03:29Sen. Welch: Who won it?
▶ 2:03:31Mr. Smith: As I just said, eric schmitt was certified --
▶ 2:03:35Sen. Welch: You agree that senator schmitt was elected?
▶ 2:03:39Mr. Smith: I agree that he took office in january 2023 and he -- the election was cast and counted by the missouri secretary of state.
▶ 2:03:47Sen. Welch: You know what? I believe that senator schmitt won that election.
▶ 2:03:53Sen. Schmitt: In a landslide, senator.
▶ 2:03:56Sen. Welch: Bo, I wasn't gonna brag about it. But what is so hard about saying that? You were asked by senator women thought about the 2020 election, and you could not say and won't say that joe biden was elected by the american people to be president. Right?
▶ 2:04:19Mr. Smith: I think my answers have been consistent with other answers this committee has heard --
▶ 2:04:26Sen. Welch: It is consistent with whatever nominee has said in the rehearsed way, but you do understand that president trump continues to deny that he lost that election and continues to assert that that election was stolen, correct?
▶ 2:04:43Mr. Smith: I want to dispute that you -- that you say these are rehearsed or canned answers. These are my answers. These are the legally correct answers.
▶ 2:04:51Sen. Welch: You are aware that president trump continues to assert that he won the 2020 election?
▶ 2:04:57Mr. Smith: I'm aware that president trump has a lot of views on the 2020 election.
▶ 2:05:04Sen. Welch: Here is the worry here. You know, I was here on january 6. I was here when the mob attacked, when the gun was fired, and the mob was breaking the doors down. I didn't believe it was happening. And the reason I didn't believe it was happening is because this is the united states of america, and we believe in the peaceful transfer of power. And we renounce violence as a way to overcome the decision of the american people at the polling booth.
▶ 2:05:34Sen. Welch: What it did happen. And you can't acknowledge that president biden won the popular vote. You cannot acknowledge that under our process he won the election. You can't say that. I share the apprehension that senator blumenthal has, that the nominees who come in here cannot say the obvious. You win some elections, you lose some elections.
▶ 2:06:05Sen. Welch: You as a judge still cannot just say plainly that biden won and trump lost. Is that the case?
▶ 2:06:15Mr. Smith: I think I want any judge to be very legally precise in what they said and I have reported -- referred to article 2 --
▶ 2:06:24Sen. Welch: What you are calling legally precise a lot of people will call politically evasive. Mr. chairman, what is the problem with acknowledging who won the election?
▶ 2:06:53Mr. Smith: I have repeatedly acknowledge that joe biden was certified as the president in january, 2021.
▶ 2:06:55Sen. Welch: What that suggests is that it was by accident, it was by subterfuge, it was somehow illegitimate. You believe any of those things to be the case?
▶ 2:07:03Mr. Smith: I have explained the legitimate process of electoral college counting their votes in december of 2020. That is when those votes were cast --
▶ 2:07:12Sen. Welch: Under your approach any of us can have whatever opinion we want as to whether the election was legitimate or not. You remember that then-president trump filed I think 80 lawsuits in -- and virtually all of them except one were thrown out of court. Was there any judicial support for your view that says that there is not a computer -- a conclusive outcome in the 2020 presidential election?
▶ 2:07:40Mr. Smith: I think the view I have shared today is that there was a certification process that resulted in joe biden being president.
▶ 2:07:48Sen. Welch: Thank you. I yield back.
▶ 2:07:53Sen. Schmitt: Senator schiff.
▶ 2:07:55Sen. Schiff: Thank you, Mr. chairman. Mr. smith, I believe that a lot of the corruption that we are seeing in the administration and the white house traces back to a single decision of the supreme court, granting the president immunity. Absolute immunity when it comes to certain core functions of the executive. A qualified immunity as to other official acts.
▶ 2:08:22Sen. Schiff: The only area where a president would be personally liable for prosecution would be purely personal conduct, which is hard to imagine what that entails, given the president's president when he for hours a day. You were part of the president's legal team. Defending the president, articulating the president's position in trump the united states. I want to ask you about that.
▶ 2:08:49Sen. Schiff: In the court of appeals john sauer, one of the council for the president, was asked by court of appeals judge penn in the D.C. circuit judge are under your theory of the case, his theory of the case, a president could order seal team six to assassinate a political opponent and not be subject to prosecution for it. His answer was effectively, that's right. Unless he were impeached first he would not be subject to prosecution. Is that your view as well?
▶ 2:09:18Mr. Smith: I think a similar question was also ask at the oral argument the supreme court. The supreme court has set forth a test in trump versus the united states that would address that hypothetical situation, which is to my relationship is outlandish and I see no reason to think that that hypothetical whatever be a possibility.
▶ 2:09:38Sen. Schiff: So, is it your view as well, as it was Mr. sauer's that the resident could assassinate a political opponent and not be prosecuted for it if his party will not impeach him in the senate?
▶ 2:09:51Mr. Smith: I think trump versus united states has addressed to some extent the impeachment judgment clause and that is set forth in the opinion would be something I would be bound as president to apply --
▶ 2:10:02Sen. Schiff: With my hypothetical, what is your answer? The president orders seal team six to kill his political opponent, one of them. Maybe several. Uses the military to do it, so it is within the scope of absolute immunity. Is it your view that he is not subject to prosecution for that if the members of his party will not impeach him?
▶ 2:10:23Mr. Smith: With that hypothetical or any hypothetical you might try to pose our referred to the test of the supreme court --
▶ 2:10:30Sen. Schiff: I'm asking you your view. So, just tell me yes or no.
▶ 2:10:34Mr. Smith: As a judicial nominee I don't want to prejudge any case.
▶ 2:10:38Sen. Schiff: I'm not asking you to prejudge, I'm asking you to talk about your view and also what you argued, what you counseled the president in that case. Did you make the argument as a member of the president's legal team that, yes, he could assassinate his opponent if you use the military to do it and it was that his party would not impeach him, that he would be protected?
▶ 2:11:00Mr. Smith: I can guarantee any privileged conversations due to attorney-client privilege but I would refer you to the marks #that john sauer had at the court of appeals and the supreme court.
▶ 2:11:15Sen. Schiff: The remarks he made is that, yes, he would be immune. Do you disagree?
▶ 2:11:20Mr. Smith: I would disagree with your characterization. I think he said it would -- it was outlandish and they would be a process to hold someone like that accountable.
▶ 2:11:30Sen. Schiff: The question from the judge was, if he were not impeach first. Is that your position? It sounds like that is your position as well. Let me ask you about a different part of the courts opinion. That the only area where he is liable is purely personal conduct. If a president uses their official position to enrich themselves is he immune? Where is purely personal?
▶ 2:12:00Mr. Smith: Chief justice roberts asked a similar question in oral arguments.
▶ 2:12:02Sen. Schiff: I'm asking you.
▶ 2:12:04Mr. Smith: I would refer you to the same place.
▶ 2:12:07Sen. Schiff: Don't refer me, just answer the question. In your view, if the president enriches himself through his office is he immune or is that purely personal conduct?
▶ 2:12:17Mr. Smith: I think the united states versus brewster decision --
▶ 2:12:21Sen. Schiff: You not answering the question. Let me ask you a different one. If a president took bribes to change the country's policy in the gulf, purely personal or subject to immunity?
▶ 2:12:33Mr. Smith: Brewster dealt with bribes, and in that case the court said that a legislator could be prosecuted for bribery.
▶ 2:12:41Sen. Schiff: We are not talking about the legislature, we are talking about the president of the united states, who has immunity, thanks to your work, in part. If the president demanded money from a media organization to approve a merger, immune or purely personal conduct subject to prosecution?
▶ 2:12:59Mr. Smith: Every hypothetical situation would be addressed by the test in trump versus united states.
▶ 2:13:04Sen. Schiff: So, you are not going to answer the question. What if a president falsely arrested a sufficient number of senators such that he cannot be impeached? Is there a remedy for that?
▶ 2:13:17Mr. Smith: For each of the situation the trump versus united states test would be applied.
▶ 2:13:22Sen. Schiff: The trump versus united states test would be applied. President is arresting numbers of congress to prevent his impeachment. What is the remedy?
▶ 2:13:31Mr. Smith: In each of these hypothetical scenarios the remedy is --
▶ 2:13:37Sen. Schiff: What is the scenario?
▶ 2:13:40Mr. Smith: The court would go through the tops of presidential power at issue.
▶ 2:13:44Sen. Schiff: He has passed the test. He has got immunity unless he is impeached. That is what the court has held. And he is not impeach because he can't be, because he has arrested enough of the senate to prevent his impeachment, or an impeachment proceeding. What is the remedy?
▶ 2:14:03Mr. Smith: As I have said, for each hypothetical scenario the court would look at the different tests in trump versus united states --
▶ 2:14:12Sen. Schiff: I'm going to have to conclude here that you don't want to express your view on it because I think is -- it is a shocking view. I think it was a shocking view that john sauer expressed. I think it is a shocking view that you hold, that the president's authority is so profound that he basically is above and beyond the law, that there is no remedy for a president who would abuse his power the way we have already seen, and I fear we will see in the future. I think the roberts court will go down in history.
▶ 2:14:43Sen. Schiff: That will be their legacy, as having enabled the worst form of corruption we have ever seen in the oval office. And you will be a part of the team that made that possible. I yield back.
▶ 2:14:52Sen. Schmitt: Thank you. I would point out the implication that Mr. smith cannot be a good judge because he was a lawyer is outrageous. The supreme court agreed with those arguments, so I don't view it as a strike of against the nominate, but rather a mark of distinction. With that, we have run out of senators to ask questions, Mr. smith, so thank you. I want to thank your family for being here. Yes, senator kennedy?
▶ 2:15:25Sen. Kennedy: Counselor, you represented president trump?
▶ 2:15:29Mr. Smith: I did, senator.
▶ 2:15:33Sen. Kennedy: When you agree to represent him did you triple your allard -- your hourly rate?
▶ 2:15:37Mr. Smith: No, senator.
▶ 2:15:41Sen. Kennedy: You just build him regularly?
▶ 2:15:43Mr. Smith: We were grateful to represent the president. There was no inflation of cost. It was a regular rate that we give to other clients.
▶ 2:15:50Sen. Kennedy: That was a joke. But you handled it well.
▶ 2:15:54Sen. Schmitt: Thank you, justin, and thank you to your family. With that, will the nominees for the second panel please come forward and stand before the witness table, and I will administer the oath? Would you please raise your right hand?
▶ 2:16:25Sen. Schmitt: You swear the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? Thank you. Have a seat. It is our normal process, if you desire, to introduce folks that are here with you, including your family, and then you may or may not give an opening statement. We will start on my left hand moved down the line. Mr. kuhlman, the floors you -- is yours.
▶ 2:16:49Mr. Smith: Thank you, sheena dishman. Thank you to chairman grassley and all of the members of the judiciary committee for holding this hearing. I want to thank president trump for the great honor of this nomination. I want to thank senators marshall and moran for those very kind words of welcome. This is the professional honor of a lifetime.
▶ 2:17:31Mr. Smith: I can think of anything that brings me greater joy than my wife, who is the greatest blessing I have received. She is here today, she has been the best spouse you could ask for for 14 years and there is no way I would be here without her. She is a great mother. To the other great lessons in my life, my five children, who did not skip school to come here, but who I want to know love them and there is nothing I am prouder of.
▶ 2:17:58Mr. Smith: When their eye -- I want to thank my parents who are here in person for their support today, and not just today, but every other day in my life. I want to thank my in-laws for raising -- raising such a wonderful daughter, and also for keeping my children this week so they're wonderful daughter could be here with me.
▶ 2:18:32Mr. Smith: It is truly an honor to be here. It is an honor to sit here with two other men I have noticed -- -- I respect.
▶ 2:18:42Sen. Schmitt: Thank you. Instrument tv. -- Mr. mattivi.
▶ 2:18:49Mr. Mattivi: Thank you. Good morning. I too would like to start by thanking president trump for the honor this nomination. I would like to thank senators marshall and moran. Thank you to senator roberts for his willingness to attend today and speak on my behalf.
▶ 2:19:12Mr. Mattivi: Thanks also to my boss, the kansas attorney general, kris kobach, for his help and support in this process and in general in our combined efforts to keep kansas safe every day. I would like to recognize my family, as has already been introduced by senator moran I have received accolades from my work overseas assisting the iraqis in reconstruction, and I want to point out that during that time I left home and left a wife behind with three small children and she is the one who managed the household.
▶ 2:19:42Mr. Mattivi: People ask me, what is my greatest her, dishman in life, it is those three kids and I want to recognize them and my wife for the part she has played in their development into adulthood. I have friends here from almost every phase of my life.
▶ 2:20:22Mr. Mattivi: Senator, if fortunate enough to be confirmed I will have the opportunity to return to the courtroom I tried so many cases over two decades and to follow in the footsteps of judges from the district of kansas for whom I have tremendous respect and admiration. I believe in the immutability of the constitution. In iraq I watched as that country struggled and fought to emerge from generations of dictatorial rule and try to path toward implementing the rule of law. The rule of law should be treasured.
▶ 2:20:52Mr. Mattivi: It should be vigorously protected. Especially in our federal courts. I will strive to be a judge who is firm but fair. I will approach the law with reverence and the litigants with respect I will inspire confidence in the judiciary and -- and the future of our country. Thank you for your consideration then I look forward to answering your questions.
▶ 2:21:11Sen. Schmitt: Thank you. Mr. powell.
▶ 2:21:15Mr. Powell: Thank you, senator. Thank you for the opportunity to discuss my nomination. Obviously you don't get to be in this chair without many people helping a lot along the way in my life. And I can't think all of them today, but I do want to thank a few. I want to thank president trump for his nominating me to the federal bench. It is a great honor.
▶ 2:21:46Mr. Powell: I also want to thank our united states senator, senator moran and senator marshall, for their support. Nobody that requires senate confirmation gets far without the support of their home state senators. I also want to thank kris kobach for the competency placed in me by bringing me into his team as solicitor general. And perhaps most importantly a want to thank all of my family members and friends here with me today.
▶ 2:22:14Mr. Powell: They have come from far and wide , particularly want to thank my wife of 40 years. Anything I have achieved in my life is due no small measure to her support. And I love her very much and I appreciate her and the family we built. We have four kids and six grandchildren and that is my greatest legacy, and I am very blessed to have her with me.
▶ 2:22:40Mr. Powell: I wish my kids could be here, but they have lives and families to tend to, but I know they are watching online. I'm also grateful to have other family members here today. My good friend mark, who he and I have been friends since the first day of law school, and we have shared over 30 years of friendship together. I also want to thank another special friend, my friend brian who is a high school friend who lives and works here in washington, D.C..
▶ 2:23:09Mr. Powell: It is one of the reasons why you want to become a federal judge, to serve your community and serve your loved ones, and do justice in america. If I am fortunate to be confirmed I will do what I have done for the past 20 years when I was a state court judge, to apply the law fairly and without favor in every case. I'm happy to stand for the committee's questions. Thank you.
▶ 2:23:33Sen. Schmitt: Thank you. I will start and ask if each one of you can address it. I will ask it to our -- two-per question. -- two-part question. How would you describe your political -- how would you describe your judicial philosopher? Your judicial philosophy, and and you identify a moment in your professional life where things may have been difficult, but you did the right thing anyway?
▶ 2:24:03Sen. Schmitt: You adhered to the law even though it may have been unpopular?
▶ 2:24:09Mr. Smith: Thank you, senator. I would describe myself as an originalist and textural list. I'm happy to explain that further if you would like, senator. As for your questions about standing up to hard situations, it is honestly hard to pick one. I have represented my clients in high-profile cases and cases that had negative media attention and negative scrutiny.
▶ 2:24:37Mr. Smith: And my clients have been really scared in those situations. I have had clients who had death threats because of coverages. Often unfair coverage that those cases were getting. It has truly been my professional honor to stand next to them and a lot of times stand in front of them and be their public-facing voice and be the one advocating for them in court and to be the one preparing them and telling them it is going to be ok and standing with them in court or in a deposition.
▶ 2:25:09Mr. Smith: I have come across that situation probably more times than I could count. On the flipside of that coin the other hard thing is, I have had clients who have had real problems, who have had exposure, who I needed to counsel strongly and firmly about how to proceed in issues with their case, and a lot of times people wanted their lawyer to tell them what they wanted to hear, and a lot of times being a good lawyer involves telling your clients what they don't want to hear.
▶ 2:25:39Mr. Smith: I've done that or times and I can count too.
▶ 2:25:46Mr. Mattivi: I would describe my judicial philosophy as textualism when it comes to interpreting statutes and ritualism when it comes to interpreting the constitution. It was justice scalia who I believe made that distinction, at least as I'm aware of it, and I agree with that distinction. That is the distinction I would follow on the bench. With regard to an act of courage I would cite something that happened fairly recently in kansas.
▶ 2:26:11Mr. Mattivi: I cannot comment on the specifics of the investigation because there is litigation pending, but avoiding the specifics and talking about what happened, it would be an effort we undertook recently, winning the attorney general's office in the missouri bureau of investigation, to enforce marijuana laws that had not been enforced since the passage of the farm bill. I knew that that was not going to be popular with certain segments of the political spectrum.
▶ 2:26:37Mr. Mattivi: I knew it was not going to be popular with the public and I knew it would draw a tremendous amount of backlash. But nevertheless, based on the science we are seeing, based on the harm we were seeing it was undoubtedly in my right -- in my mind the right thing to do. As a result, that is what we did.
▶ 2:26:54Mr. Powell: Senator, like the others, I agree. I am a textural list when it comes to statutory construction and an originalist when it comes to the constitution. With regard to a difficult case, I can recall one when I was on the court of appeals where this defendant had been convicted of first-degree murder and saw habeas relief, asserting an effective assistance of counsel.
▶ 2:27:23Mr. Powell: And his counsel's performance was deficient. It was deficient enough to undermine our confidence in the outcome of that trial. So, we vacated his conviction and ordered a new trial. Even though the evidence -- there was strong evidence. Anytime you let someone who has been convicted of murder go that is always a difficult thing to do, but it was what the law required and that is what we did.
▶ 2:27:50Sen. Schmitt: Senator durbin.
▶ 2:27:53Sen. Durbin: Thanks, Mr. chairman. Mr. powell, 35 years ago I introduced an amendment in the house to ban smoking on airplanes. It passed by a partisan vote. And it started an effort to stop big tobacco from selling its dangerous product to our children and a lot of others in america.
▶ 2:28:21Sen. Durbin: It resulted in attorneys general from across many states joining together in lawsuits to hold the tobacco industry accountable for their lies, where they refused to acknowledge the deadly addiction that tobacco caused. It took years and years for those lawsuits to move to a point where finally back -- tobacco was brought to its knees. And above all they stopped their merchandising to children in our country.
▶ 2:28:51Sen. Durbin: I think that made america better. At the time about 25% of schoolchildren were smoking. Tony 5%. Today it is less than 5%. There is still problems with vaping and thevaping and the lit vaping and thevaping and the lik we made a difference. I wonder if there is anyone across america who would stand up and speak out against that senator and turns out it was you.
▶ 2:29:15Sen. Durbin: You are recorded as saying it is not politically correct to criticized the tobacco settlement. Can you explain that?
▶ 2:29:30Mr. Powell: Yes senator. My main complaint with the settlement were the provisions. There were provisions in the settlement agreement which provided for huge monetary payments to the attorney generals, local counsel. It far exceeded what would have been reasonable for attorneys to receive. I think it was $27 million that the lawyers and local counsel received, and the only thing they did was file the complaint.
▶ 2:30:02Mr. Powell: That was my principal complaint with the settlement.
▶ 2:30:04Ranking Member Durbin: The quote I've been given does not include any reference to lawyers fees. It is opposition to the settlement. Did you have any opposition to the settlement per se?
▶ 2:30:18Mr. Powell: Not principally. My principal complaint was the attorney fee provision.
▶ 2:30:26Ranking Member Durbin: Let me ask the other individuals -- thank you for being here. You both have a connection to the august 2023 law enforcement raid on the marion county record. A newspaper in kansas and a very small town. The incident received national coverage and outrage over a violation of freedom of the press. Mr.
▶ 2:30:49Ranking Member Durbin: Mattivi, you initially supported the raid stating days afterwards that your agency needed to be able to investigate quote, credible allegations. Quote, no one is above the law whether a public official or representative of the media. After widespread criticism of the raid, kbi took over the investigation and announced five days later that all of the seas materials would be returned to the newspaper.
▶ 2:31:19Ranking Member Durbin: I would like to ask you some questions. Did the kb I have any role in the raid on marion county record and based on this incident, has kb I made any changes into how it performs investigations involving the press? What would you consider if you are asked to sign off on a warrant authorizing the search of a press outlet? There was a judgment on behalf of marion county record of $3 million for this raid.
▶ 2:31:50Ranking Member Durbin: Mr. mattivi, would you like to start?
▶ 2:31:53Mr. Mattivi: Yes senator, thank you. The media reports at the outset of this event talked about the kb I being involved and even represented that they lead the raid. The ultimate facts determined that was not the case at all. There was no kbi agent present on the raid. I have to be tear -- careful talking about the raid itself because there is litigation still pending.
▶ 2:32:24Mr. Mattivi: But I would point out that all of the litigation that took place in that case, the kbi was not party to any of it. That demonstrates conclusively what their involvement in the raid was. With regard to the first and protections afforded under it, I believe they are foundational of our society. I believe the press is protected under the first amendment. At the same time I believe the press is not above the law, nor is any individual. I believe they can both be true.
▶ 2:32:55Mr. Mattivi: I believe they both are true.
▶ 2:32:56Ranking Member Durbin: Thank you. Mr. kuhlman, would you respond?
▶ 2:33:01Mr. Kuhlman: Yes senator. In the marion county cases, I was retained after the raids happened to represent the marion county sheriffs office and marion county officials that were defendants or potential defendants. My clients entered into that consent judgment that resulted in a payment of $3 million.
▶ 2:33:23Mr. Kuhlman: My understanding is there were several different plaintiffs who were affected and had filed suit against the city, that was also involved in that event. That litigation is still pending. I hesitate to comment too much on the pending litigation, but I would say the first amendment is a foundational principle of our constitution.
▶ 2:33:49Mr. Kuhlman: And I will apply the binding principles of the first amendment fairly and faithfully.
▶ 2:33:55Ranking Member Durbin: Thank you.
▶ 2:33:56Chair Grassley: Thank you senator. Senator kennedy.
▶ 2:34:01Sen. Kennedy: Thank you Mr. chairman. Mr. kuhlman, have you ever been in manhattan?
▶ 2:34:07Mr. Kuhlman: Manhattan kansas?
▶ 2:34:11Sen. Kennedy: Manhattan, new york.
▶ 2:34:12Mr. Kuhlman: I have not.
▶ 2:34:14Sen. Kennedy: Have you seen the movie 3rd avenue, midtown?
▶ 2:34:19Mr. Kuhlman: Only by reputation.
▶ 2:34:23Sen. Kennedy: It is a major north-south traffic corridor. Very busy. A lot of traffic. I don't know if you saw the news yesterday but about 200 protesters in new york sat down in the middle of 3rd avenue. Completely blocked traffic. They were wearing t-shirts that said no war, no ice, free palestine.
▶ 2:34:57Sen. Kennedy: Completely shut everything down for about an hour. Police had to come in. This is new york, nothing will happen to them. The point is it blocked traffic severely. Let's suppose a medical transportation service was trying to get a heart to a transplant patient in a hospital nearby.
▶ 2:35:30Sen. Kennedy: Obviously the traffic jam delayed him and the patient died. Are you with me?
▶ 2:35:36Mr. Kuhlman: Yes senator.
▶ 2:35:39Sen. Kennedy: Does the patient's family have cause of action against the protesters?
▶ 2:35:44Mr. Kuhlman: In any hypothetical I would hesitate to completely prejudge the situation without all of the facts.
▶ 2:35:54Sen. Kennedy: Come on give me your look. This is a first few laws -- first year law student question.
▶ 2:35:59Mr. Kuhlman: I believe they would, more than likely.
▶ 2:36:04Sen. Kennedy: What would be the issues that arise? I want to understand how you think. If you are defending the leader of the protest what is the first thing you are going to say?
▶ 2:36:12Mr. Kuhlman: If I'm defending the leader of the protest? I would argue about causation and forseeability.
▶ 2:36:23Sen. Kennedy: What do you mean causation?
▶ 2:36:24Mr. Kuhlman: For any negligence claim, one of the elements is you have a duty to someone, did you breach that duty? Did you cause injury? Part of the duty causation calculus is how foreseeable that injury --
▶ 2:36:40Sen. Kennedy: What is the difference between legal causation and proximate cause?
▶ 2:36:45Mr. Kuhlman: Because in fact is the specific cause of death or injury. In this case, it would be whatever heart ailment this person you described had would be the cause in fact of death. Proximate cause does not always have to be the cause in fact and there can be multiple causes.
▶ 2:37:11Mr. Kuhlman: A proximate cause, is not for this thing happening this injury might not have occurred.
▶ 2:37:17Sen. Kennedy: Good. Mr. powell, you said you are a textualist?
▶ 2:37:23Mr. Powell: Yes sir.
▶ 2:37:26Sen. Kennedy: What does that mean?
▶ 2:37:27Mr. Powell: You follow the words of the text of the statute.
▶ 2:37:31Sen. Kennedy: What if the text of the statute is not clear?
▶ 2:37:35Mr. Powell: One of the approaches I do is I want to look at the language in context of the statute as a whole and try to harmonize the language. I may go to dictionaries to help me find definitions of words.
▶ 2:37:53Sen. Kennedy: How ambiguous does a statute have to be before you are going to look to secondary sources?
▶ 2:37:59Mr. Powell: Ambiguity means the language is subject to two or more interpretations.
▶ 2:38:11Sen. Kennedy: Reasonable interpretations.
▶ 2:38:12Mr. Powell: Correct.
▶ 2:38:14Sen. Kennedy: Does it have to be 50% ambiguous, 52% ambiguous?
▶ 2:38:22Mr. Powell: I'm not sure how to apply -- to me, ambiguity --
▶ 2:38:31Sen. Kennedy: I'm asking how you would apply.
▶ 2:38:32Mr. Powell: Ambiguity means the words used are stepped -- are susceptible to two or more definitions. I don't know whether that is 50% --
▶ 2:38:42Sen. Kennedy: I'm not suggesting you are wrong but why do you go through that exercise? Why do you spend hours agonizing and debating how many lawyers can dance on the head of a pin to decide whether it is ambiguous? Why not look at the statute and go to the secondary sources?
▶ 2:38:58Mr. Powell: That is what I do.
▶ 2:39:02Sen. Kennedy: But you only go if it is ambiguous.
▶ 2:39:04Mr. Powell: The plain words, the plain meaning of the words in front of you is what guides you. You apply the common understanding --
▶ 2:39:18Sen. Kennedy: Why? Don't you want to look to the problem that the legislature was trying to solve? Why do you want to be a slave to the plain words that reasonable people can disagree on? Why not start with I have a statute, let me see what problem the legislature was trying to solve in interpreting the statute?
▶ 2:39:43Mr. Powell: I have done that and I don't disagree with the approach.
▶ 2:39:49Sen. Kennedy: But you said you were a textualist. You don't even get to that approach unless it is ambiguous.
▶ 2:39:54Mr. Powell: I know, so --
▶ 2:39:58Sen. Kennedy: So which is it? Are you always a slave to the words and debate about plain meaning or do you step back and say plain meaning or not, I'm going to look at the problem the legislature was trying to solve? Which is it?
▶ 2:40:13Mr. Powell: The best way to understand what the legislature --
▶ 2:40:21Sen. Kennedy: Our chairman is going to cut me off. Tell me which one you use.
▶ 2:40:26Mr. Powell: As I have tried to say, when you are trying to discern the legislative intent, you first look at the words the legislature itself used and you apply --
▶ 2:40:42Sen. Kennedy: Lets us -- let's say the words are clear.
▶ 2:40:45Mr. Powell: Ok.
▶ 2:40:48Sen. Kennedy: You would stop there.
▶ 2:40:49Mr. Powell: You apply the words yes.
▶ 2:40:53Sen. Kennedy: Why don't you go I'm going to get this right, so let me adopt a belt and suspenders approach even though the words are plain. Let me delve into the legislative history and try to understand what problem the legislature is trying to solve?
▶ 2:41:08Mr. Powell: Because the language tells you what it is they are trying to solve.
▶ 2:41:14Sen. Kennedy: Where is it written that you can't go further than the language of the statute?
▶ 2:41:18Mr. Powell: If there is some doubt --
▶ 2:41:22Sen. Kennedy: Even if there is no doubt in your mind?
▶ 2:41:24Mr. Powell: Because you are carrying out the will of the people.
▶ 2:41:31Sen. Kennedy: You are trying to apply a statute passed by the legislature.
▶ 2:41:34Mr. Powell: Correct.
▶ 2:41:38Sen. Kennedy: Can I ask one more? Tell me how to say your name, your last names are.
▶ 2:41:44Mr. Mattivi: It is ma-tee-vee, senator.
▶ 2:41:51Sen. Sanders: -- Sen. kennedy: I go to mcdonald's, I'm 17, I apply for a job and I'm wearing a burqa. The mcdonald's manager says I really want to hire you but we don't allow religious symbols at my restaurant. Or at our restaurants. What does the law say about that?
▶ 2:42:16Mr. Mattivi: The law prohibits the application of a religious test applied by the government, not by private employers. I would say that is the basis.
▶ 2:42:32Sen. Kennedy: Are you sure about that?
▶ 2:42:33Mr. Mattivi: There are other factors.
▶ 2:42:38Sen. Kennedy: Can mcdonald's say we have a policy against religious symbols and you can't wear a burqa? Who is going to win? Mcdonald's or the person wearing the burqa?
▶ 2:42:49Mr. Mattivi: Honestly I'm not sure who would win. I would need to know more.
▶ 2:42:55Sen. Kennedy: I would -- I appreciate your honesty. I appreciated your commentary. Listen carefully. You write about courage. It is easy to play to the crowds . But when the going gets tough, you've got to follow the law, it's not going to be popular, that's what the rule of law is all about.
▶ 2:43:29Sen. Schmitt: I want to thank the nominees for your testimony today. Written questions for the record may be submitted until april 22 at 5:00 p.m. This hearing is adjourned.