[Senate Hearing 118-29, Part 6]
[From the U.S. Government Publishing Office]
S. Hrg. 118-29, Part 6
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
JUNE 7, 2023
__________
Serial No. J-118-2
__________
PART 6
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
55-361 PDF WASHINGTON : 2024
COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina,
SHELDON WHITEHOUSE, Rhode Island Ranking Member
AMY KLOBUCHAR, Minnesota CHARLES E. GRASSLEY, Iowa
CHRISTOPHER A. COONS, Delaware JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut MICHAEL S. LEE, Utah
MAZIE K. HIRONO, Hawaii TED CRUZ, Texas
CORY A. BOOKER, New Jersey JOSH HAWLEY, Missouri
ALEX PADILLA, California TOM COTTON, Arkansas
JON OSSOFF, Georgia JOHN KENNEDY, Louisiana
PETER WELCH, Vermont THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Katherine Nikas, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
JUNE 7, 2023, 10:02 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 1
Blumenthal, Hon. Richard, a U.S. Senator from the State of
Connecticut, introducing Hon. Vernon D. Oliver, Nominee to be
United States District Judge for the District of Connecticut... 5
INTRODUCERS
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan,
introducing Susan K. DeClercq, Nominee to be United States
District Judge for the Eastern District of Michigan............ 1
Peters, Hon. Gary C., a U.S. Senator from the State of Michigan,
introducing Susan K. DeClercq, Nominee to be United States
District Judge for the Eastern District of Michigan............ 2
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania, introducing Hon. Julia K. Munley, Nominee to be
United States District Judge for the Middle District of
Pennsylvania................................................... 3
Murphy, Hon. Christopher, a U.S. Senator from the State of
Connecticut, introducing Hon. Vernon D. Oliver, Nominee to be
United States District Judge for the District of Connecticut... 6
STATEMENTS OF THE NOMINEES
Witness List..................................................... 33
AliKhan, Hon. Loren L., Nominee to serve as United States
District Judge for the District of Columbia.................... 7
questionnaire and biographical information................... 34
DeClercq, Susan K., Nominee to serve as United States District
Judge for the Eastern District of Michigan..................... 8
questionnaire and biographical information................... 88
Munley, Hon. Julia K., Nominee to serve as United States District
Judge for the Middle District of Pennsylvania.................. 9
questionnaire and biographical information................... 110
Oliver, Hon. Vernon D., Nominee to serve as United States
District Judge for the District of Connecticut................. 10
questionnaire and biographical information................... 175
QUESTIONS
Questions submitted to Hon. Loren L. AliKhan by:
Chair Durbin................................................. 222
Ranking Member Graham........................................ 223
Senator Lee.................................................. 228
Senator Cruz................................................. 231
Senator Kennedy.............................................. 240
Senator Tillis............................................... 244
Questions submitted to Susan K. DeClercq by:
Ranking Member Graham........................................ 253
Senator Klobuchar............................................ 258
Senator Lee.................................................. 259
Senator Cruz................................................. 262
Senator Kennedy.............................................. 268
Senator Tillis............................................... 272
Questions submitted to Hon. Julia K. Munley by:
Ranking Member Graham........................................ 280
Ranking Member Graham, follow-up questions................... 285
Senator Lee.................................................. 286
Senator Cruz................................................. 289
Senator Kennedy.............................................. 296
Senator Tillis............................................... 300
Questions submitted to Hon. Vernon D. Oliver by:
Ranking Member Graham........................................ 308
Senator Klobuchar............................................ 313
Senator Lee.................................................. 314
Senator Cruz................................................. 317
Senator Kennedy.............................................. 324
Senator Tillis............................................... 328
ANSWERS
Responses of Hon. Loren L. AliKhan to questions submitted by:
Chair Durbin................................................. 336
Ranking Member Graham........................................ 338
Senator Lee.................................................. 353
Senator Cruz................................................. 361
Senator Kennedy.............................................. 379
Senator Tillis............................................... 391
Responses of Susan K. DeClercq to questions submitted by:
Ranking Member Graham........................................ 398
Senator Klobuchar............................................ 408
Senator Lee.................................................. 409
Senator Cruz................................................. 415
Senator Kennedy.............................................. 427
Senator Tillis............................................... 436
Responses of Hon. Julia K. Munley to questions submitted by:
Ranking Member Graham........................................ 442
Ranking Member Graham, follow-up questions................... 453
Senator Lee.................................................. 457
Senator Cruz................................................. 465
Senator Kennedy.............................................. 479
Senator Tillis............................................... 490
Responses of Hon. Vernon D. Oliver to questions submitted by:
Ranking Member Graham........................................ 498
Senator Klobuchar............................................ 510
Senator Lee.................................................. 511
Senator Cruz................................................. 518
Senator Kennedy.............................................. 532
Senator Tillis............................................... 544
LETTERS RECEIVED WITH REGARD TO HON. LOREN L. ALIKHAN
Asian Pacific American Bar Association of the Greater Washington,
DC, Area (APABA-DC), June 6, 2023.............................. 552
Bipartisan group of current and former State solicitors general,
May 31, 2023................................................... 555
Botstein, Leon, and John B. Weinstein, June 5, 2023.............. 558
Georgetown University Law Center, June 1, 2023................... 560
South Asian Bar Association of Washington, DC (SABA-DC), June 5,
2023........................................................... 562
Vladeck, David C., June 1, 2023.................................. 565
Women's Bar Association of the District of Columbia (WBA), May
31, 2023....................................................... 568
LETTERS RECEIVED WITH REGARD TO SUSAN K. DECLERCQ
Alliance for Justice (AFJ), June 6, 2023......................... 570
Komar, Kevin Z., June 9, 2022.................................... 572
Leadership Conference on Civil and Human Rights, The, June 5,
2023........................................................... 575
LETTERS RECEIVED WITH REGARD TO HON. JULIA K. MUNLEY
Brier, Daniel T., May 24, 2023................................... 577
Burke, Hon. Thomas F., Jr., retired, May 15, 2023................ 578
Cali, Brian J., May 16, 2023..................................... 580
Corbett, Hon. Trish, May 18, 2023................................ 583
Gelb, Natalie, May 29, 2023...................................... 585
Greater Scranton Chamber of Commerce, Scranton, Pennsylvania, May
11, 2023....................................................... 587
LaPorta, Mary Ann, May 25, 2023.................................. 589
Mascelli, John C., May 17, 2023.................................. 590
Moran, Lawrence J., May 23, 2023................................. 592
O'Brien, Joseph A., May 25, 2023................................. 594
Pane, Martin J., May 10, 2023.................................... 596
Representatives of labor unions, May 10, 2023.................... 598
LETTERS RECEIVED WITH REGARD TO HON. VERNON D. OLIVER
Carpino, Hon. Christie M., June 5, 2023.......................... 600
George W. Crawford Black Bar Association, June 5, 2023........... 602
Republicans, Democrats, Independents, prosecutors, and criminal
defense lawyers, June 5, 2023.................................. 604
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
American Bar Association's Standing Committee on the Federal
Judiciary, evaluation of the professional qualifications of
Hon. Loren L. AliKhan.......................................... 606
American Bar Association's Standing Committee on the Federal
Judiciary, evaluation of the professional qualifications of
Susan K. DeClercq.............................................. 607
American Bar Association's Standing Committee on the Federal
Judiciary, evaluation of the professional qualifications of
Hon. Julia K. Munley........................................... 608
American Bar Association's Standing Committee on the Federal
Judiciary, evaluation of the professional qualifications of
Hon. Vernon D. Oliver.......................................... 609
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
District of Columbia, prepared statement....................... 610
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
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WEDNESDAY, JUNE 7, 2023
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Richard J.
Durbin, Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Blumenthal, Hirono,
Ossoff, Graham, Lee, Hawley, Kennedy, Tillis, and Blackburn.
Also present: Senators Stabenow, Peters, Casey, and Murphy.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. This meeting of the Senate Judiciary
Committee will come to order. Today, we'll hear from four
nominees: Judge Loren AliKhan, nominated to the U.S. District
Court for the District of Columbia; Susan DeClercq, nominated
to the U.S. District Court for the Eastern District of
Michigan; Judge Julia Munley, nominated to the U.S. District
Court for the Eastern District of Pennsylvania; and Judge
Vernon Oliver, nominated to the U.S. District Court for the
District of Connecticut. Congratulations to all the nominees,
and their families.
There are several Members joining us today for
introductions. First, I'm going to turn to the Ranking Member,
Senator Graham from South Carolina, for any opening remarks he
would like to make.
Senator Graham. Thank you, Mr. Chairman. I look forward to
the testimony. And, let's get on.
Chair Durbin. Thank you, Senator. We'll hear introductions
for our nominees and start with Senator Stabenow, who is here
to introduce Ms. DeClercq.
STATEMENT OF HON. DEBBIE STABENOW, A U.S. SENATOR FROM THE
STATE OF MICHIGAN, INTRODUCING SUSAN K. DECLERCQ, NOMINEE TO BE
UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
MICHIGAN
Senator Stabenow. Well, thank you so much, Mr. Chairman,
and Ranking Member, and all the Members of the Committee. I am
really honored and excited today to introduce Susan DeClercq,
who President Biden nominated to serve as the U.S. district
judge for the Eastern District of Michigan. She's here today
with her husband, Greg Kerr, and their three children, Zoe,
Colin, and Tabitha.
She also has wonderful supporters and friends here: Monica
Bilger and Mick Tousley, and Federal District Judge Judy Levy.
So, we are so pleased that they are all here. And, it's fitting
that Ms. DeClercq has a wonderful group of supporters here
today, because she certainly has a lot of supporters in
Michigan.
One of the things that people consistently say about Ms.
DeClercq is how warm and personable she is. She is, in a word,
kind. But, don't let that fool you. She can go toe to toe with
anyone in the courtroom. Ms. DeClercq is a proud graduate of
the University of Michigan and Wayne State University School of
Law.
Her first job out of college was serving as a clerk to U.S.
District Judge Avern L. Cohn. Judge Cohn was a force of nature
who spent 40 years on the Federal bench, retiring at age 95. He
was a bit gruff, but he had an open mind and an open heart, two
attributes Ms. DeClercq has carried throughout a career that
spanned the public and private sector.
Currently, she is director and counsel of special
investigations at Ford Motor Company. And before that, she
spent 18 years in the U.S. Attorney's Office for the Eastern
District of Michigan, in a variety of leadership roles,
including chief of the Civil Division.
She's fought to protect people's civil rights, including,
for example, a Michigan family that was kicked out of a
restaurant because their children suffered from a genetic skin
condition. And, she successfully represented an auxiliary
firefighter and a U.S. Army reservist who were denied a
promotion, extended to coworkers with less experience, after he
returned from active duty in Afghanistan.
In all of her cases, she's won the respect of everyone in
the courtroom. As one Michigan lawyer said, ``If I had to lose
to anybody in litigation, I'm glad it was Ms. DeClercq.'' It's
worth noting that if confirmed, Susan DeClercq would be
Michigan's first Federal judge of East Asian descent. Susan
DeClercq is an outstanding nominee, and I wholeheartedly
support her nomination.
I see my partner and colleague, Senator Peters, here, as
well. We are very enthusiastic and urge the Committee to
support her. Thank you.
Chair Durbin. Thank you very much, Senator Stabenow. And
now, from the University of Michigan side, Senator Peters.
[Laughter.]
Senator Peters. Well, Michigan State, as well.
[Laughter.]
Chair Durbin. Well, we have two Michigan Staters.
STATEMENT OF HON. GARY C. PETERS, A U.S. SENATOR FROM THE STATE
OF MICHIGAN, INTRODUCING SUSAN K. DECLERCQ, NOMINEE TO BE
UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
MICHIGAN
Senator Peters. Absolutely. Well, thank you, Chairman
Durbin and Ranking Member Graham. I'm pleased to introduce
Susan DeClercq, an exemplary Michigander nominated to serve on
the United States District Court for the Eastern District of
Michigan.
I want to take a moment to acknowledge Susan's family, and
I'm sure my colleague has already done that, but it's worth
doing again, because they are incredible support for Susan, are
her husband, Gregory Kerr, and their children, Zoe, Colin, and
Tabitha. Susan is also joined by three friends: Monica Bilger,
Mike Tousley, and the Honorable Judge Levy, who currently
serves on the U.S. District Court for the Eastern District of
Michigan. And, I want to join my colleague in thanking them to
be here on Susan's behalf.
Susan is a graduate of two public institutions in Michigan:
the University of Michigan and the Wayne State University
School of Law, where I attended, and has over two decades of
experience that will serve her well on the Federal bench.
In the U.S. Attorney's Office for the Eastern District of
Michigan, she defended the United States against a broad range
of litigation and argued civil rights cases on behalf of the
U.S. Government.
This civil rights experience was paramount. Susan spent 12
years bringing cases involving the Fair Housing Act, the Equal
Credit Opportunity Act, and much more. At one point, she
conducted a lengthy investigation into one of the largest
childcare providers in the country, and she helped uncover
violations of the Americans with Disabilities Act leading to
policy changes that ensured that diabetic children at hundreds
of childhood or childcare centers across the country could
receive the care that they needed.
Susan's extensive work for our Nation's servicemembers and
veterans is also deeply admirable. Her work for the U.S.
Attorney's Office allowed her to represent servicemembers
personally, bringing numerous cases to protect and enforce the
rights of members of the military under laws such as the
Servicemembers Civil Relief Act and the Uniformed Services
Employment and Reemployment Rights Act.
And finally, the breadth of Susan DeClercq's work
illustrates her commitment to balance and fairness. From her
extensive civil rights work to representing businesses in high
stakes investigations, to defending the U.S. Government against
litigation brought against it. She has a range of experiences
that will be key to effectively serve on the Federal bench.
Susan DeClercq is an accomplished legal professional with
the experience, the qualifications, and temperament necessary
for this role, and I have every confidence that she will be
confirmed by the Senate. On the Federal bench, she would not
only be an exemplary model for our State, she would also be
Michigan's first Federal judge of East Asian descent. And, I'm
proud to support her nomination to serve on the United States
District Court for the Eastern District of Michigan. Thank you.
Chair Durbin. Thanks, Senator Peters. Of course, we
understand you and Senator Stabenow, and your colleagues, have
a pretty busy schedule. So, if you would like to move on at
this point, you're certainly welcome to. Thank you for joining
us.
And now, to continue ``Scranton Day'' in the Senate
Judiciary Committee, Senator Robert Casey.
STATEMENT OF HON. ROBERT P. CASEY, JR., A U.S. SENATOR FROM THE
STATE OF PENNSYLVANIA, INTRODUCING HON. JULIA K. MUNLEY,
NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE MIDDLE
DISTRICT OF PENNSYLVANIA
Senator Casey. Chairman Durbin, thank you very much. And, I
want to thank you, and Ranking Member Graham, for this
opportunity, and Members of the Committee, for being here
today, and for the work you do to advance judicial nominations.
I'm proud to introduce Judge Julia K. Munley to the
Committee, someone who has served our county of Lackawanna, my
home county, as well as people well beyond that county in the
region for so many years. I'm especially grateful that she's
willing to serve as a judge on the United States District Court
for the Middle District of Pennsylvania.
I want to thank, in particular, her family, who's with her
today. I won't mention every member of the family, but her
husband, Pat, is right over my left shoulder. Next to him are
both Marion Munley, her cousin, and her husband, United States
Representative Matt Cartwright. We're always grateful when a
Member of the House gets to come over here and say hello to us.
We don't get over there enough. So, Matt, welcome.
I want to thank, as well, Senator Fetterman for his
partnership and his support of Judge Munley. And, I look
forward to continuing to work with Senator Fetterman to advance
judges throughout our three Federal judicial districts.
Judge Munley is a graduate of Marywood University, one of
the great institutions of higher education in northeastern
Pennsylvania. Too many members of my family have graduated from
that institution to mention here today, but I'll mention two:
my daughter and my mother. So, I'm putting in a little
commercial there. She's also, of course, a graduate of the
Dickinson School of Law, one of the great law schools in our
State.
She's been a lawyer and an advocate, when you cover the
time as a lawyer and as a judge, for the last 30 years. As an
advocate for workers, for seniors, for people who sometimes
don't have a voice, for victims of sexual assault and
harassment. So many members of our community came to her for
legal representation, and she represented them with honor, and
distinction, and professionalism.
She became a member of the judiciary in 2016, appointed by
Governor Wolf to the Court of Common Pleas in Lackawanna
County, the county bench in the 45th Judicial District. In
those 7 years, of course, she's had to deal with all kinds of
matters, civil and criminal, and so many difficult matters that
come before a judge.
That experience, combined with her life experience, her
experience as a lawyer and advocate, prepare her well to take
on the duties to be a United States District Court judge. I
have no doubt, no doubt at all, that she has the integrity, the
ability, the vast experience, as well as a commitment to the
rule of law and equal justice under the law, to serve the
people of the Middle District with distinction.
And finally, let me make one final note about her family.
Her family has a long tradition of public service, several
generations serving in the General Assembly of Pennsylvania. I
want to mention, in particular, her father, Judge James M.
Munley, whom we lost in 2020.
Like Julia Munley, Judge Munley, he served as a member of
the Court of Common Pleas in Lackawanna County as well as a
United States District Court judge. I'm honored that she's
willing to follow in that tradition of quality public service
infused with the integrity that we should expect of every
public officials, especially our judges. So, Mr. Chairman, Mr.
Ranking Member, we're honored to introduce Judge Munley.
Chair Durbin. Thank you, Senator Casey. Judge Oliver from
Connecticut has two people here to introduce him. On the panel,
of course, is our colleague, Richard. You are from Connecticut,
are you not?
Senator Blumenthal. Yes.
Chair Durbin. Richard Blumenthal, and Honorable Chris
Murphy. We'll start with Senator Blumenthal.
STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. SENATOR FROM THE
STATE OF CONNECTICUT, INTRODUCING HON. VERNON D. OLIVER,
NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF
CONNECTICUT
Senator Blumenthal. Thank you very much, Mr. Chairman.
Thank you for affording us this opportunity to be here today
with some really exceptionally qualified nominees. Thanks to
President Biden. And, I'm pleased to be here with my great
friend, and colleague, Senator Murphy. The two of us strongly
support Judge Vernon Oliver for this position. It's a point of
particular personal pride, and joy, for me, because I have
known Judge Oliver for close to 20 years.
He was born in Bridgeport, Connecticut. After receiving his
B.A. and his J.D. from the University of Connecticut, he worked
briefly in private practice, and as a temporary assistant clerk
for the Hartford Judicial District.
He then was a prosecutor in the criminal division of
criminal justice, and then was hired to serve as an assistant
attorney general in the Connecticut Attorney General's office.
I happened to be attorney general at the time. I served with
Judge Oliver for 5 years, and I came to know him personally as
a vigorous, skilled, and aggressive advocate, but also as a
person of extraordinary compassion and insight.
He served as a senior member of our Division on Child Abuse
and Neglect. These cases are challenging beyond words. They
involve the fate of children who may be abused or neglected,
often the need to terminate parental rights. He handled those
cases with adroitness and insight and vindicated the interests
of those children, along with the interests of the State of
Connecticut.
He was appointed in 2009 by Republican Governor Jodi Rell
to serve on the Connecticut Superior Court. And, throughout his
15 years on the bench, he presided over numerous civil and
criminal trials. In fact, 300 bench trials and about 20 jury
trials--thousands of hearings--made maybe tens of thousands of
rulings.
So, he is extraordinarily experienced and impressive in his
judicial career already, and he's been supported by Connecticut
attorneys as well as Republican Members of the House, State
House of Representatives, and other organizations involved in
our profession. So, I'm very pleased and proud to support Judge
Oliver, and I look forward to a speedy confirmation.
Chair Durbin. Thanks, Senator Blumenthal. Senator Murphy.
STATEMENT OF HON. CHRISTOPHER MURPHY, A U.S. SENATOR FROM THE
STATE OF CONNECTICUT, INTRODUCING HON. VERNON D. OLIVER,
NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF
CONNECTICUT
Senator Murphy. Thank you very much, Mr. Chairman, Ranking
Member Graham, Members of the Committee. Thank you for allowing
us the opportunity to introduce Judge Oliver to you. I won't
repeat his, I think, very impressive resume, except to say that
it's hard to be more committed to the State of Connecticut than
Judge Oliver has been.
Having gone to Bridgeport Public Schools, attending the
University of Connecticut as an undergraduate and as a law
school student, and then dedicating, as you heard, his entire
career to protecting the people of Connecticut, and protecting
the rule of law in Connecticut.
I will just bring your attention to the ways in which Judge
Oliver has done some of the most difficult, and some of the
most important, work in our judicial system.
Senator Blumenthal has already mentioned the work that he
did as an assistant attorney general in the Child Protection
Bureau, maybe the hardest work that you can do in an attorney
general's office. And, Judge Oliver did it enthusiastically and
adeptly.
But, I want to mention a couple of things that Judge Oliver
has done during his time on the bench. Yes, he has presided
over 300 cases. He was nominated by a Republican Governor to
that post, getting broad bipartisan support. But, at a moment
when we are trying to explain to the American public the
relevance and the independence of our judiciary, Judge Oliver
has taken on a couple tasks that I think are really important
you should know about.
First, he actually spends a lot of time outside of the
courtroom talking to student groups, high schools, and middle
school students, about his work and why they should believe in
Connecticut's judicial system. He also spends time talking
about his journey from Bridgeport, from the Bridgeport Public
Schools to one of the highest positions in State government,
encouraging more students to pursue a career in law.
Second, Judge Oliver serves as the chair of the Connecticut
Committee on Judicial Ethics. Now, we know it's often hard to
find Senators to serve on the Ethics Committee here. It's not a
job you normally sign up for. But, Judge Oliver is not just on
that committee. He's the chair of it. He's taken on a really
tough job to lead the efforts to make sure that we are applying
the rule of law, not just to those who appear before the court,
but to the judges themselves.
And so, I just make those two notes for you to show you
that this is a pattern in Judge Oliver's career, doing some of
the most difficult and most important work to maintain the
integrity of our judicial system. So, I'm very proud to join
Senator Blumenthal in introducing Judge Oliver to the
Committee. I'm confident that you will find him to be as
impressive as we have, and I look forward to working with you
to bring his nomination to the Senate floor. Thank you very
much, Mr. Chairman.
Chair Durbin. Thanks, Senator Murphy. Of course, I
understand you have a busy schedule, too. We're grateful that
you could be here today for this hearing. Thanks to all the
visiting introducers.
It's my honor to personally introduce Judge AliKhan, who's
been nominated to the U.S. District Court for the District of
Columbia. Judge AliKhan is a graduate of Bard College at St.
Simon's Rock, and the prestigious Georgetown University Law
Center.
After law school, she served on the U.S. District Court for
the Eastern District of Pennsylvania and on the Third Circuit
Court of Appeals. Judge AliKhan then served as a Bristow Fellow
at the Department of Justice, spent 3 years in private practice
working at O'Melveny & Myers here in DC.
In 2013, Judge AliKhan joined the office of attorney
general for the District of Columbia as deputy solicitor
general. After serving as the acting solicitor general, Judge
AliKhan became the District's solicitor general in 2018.
During her career as a practicing attorney, Judge AliKhan
argued in the Supreme Court of the United States, and in the
U.S. Court of Appeals, 12 times, Federal district courts, 6
different times.
In February of 2022, the Senate confirmed Judge AliKhan to
the District of Columbia Court of Appeals on a bipartisan
basis. She's shown an even-handed approach from the bench. At
the request of Congresswoman Eleanor Holmes Norton, I'd like to
enter the statement by the Congresswoman in support of Judge
AliKhan, without objection.
[The prepared statement of Hon. Eleanor Holmes Norton
appears as a submission for the record.]
I welcome Judge AliKhan, and her family, and look forward
to her testimony today. We're now ready for the nominees'
opening statements. If the four nominees would approach the
witness table and raise their right hands, once they're in
place.
[Witnesses are sworn in.]
Chair Durbin. Let the record reflect that, thank goodness,
all four answered in the affirmative. Judge AliKhan, you're
first.
STATEMENT OF HON. LOREN L. ALIKHAN, NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA
Judge AliKhan. Good morning, Chair Durbin, Ranking Member
Graham, and Members of the Committee. I am grateful, and
humbled, to appear before you today as you consider my
nomination. I thank President Biden for the honor of this
nomination, Congresswoman Eleanor Holmes Norton and members of
her Federal Law Enforcement Nominating Commission for
recommending me to the President, Chair Durbin for the warm
introduction, and the hardworking Committee staff for making
this hearing possible.
I would like to take a moment to introduce a few important
people in my life. First, my husband, Justin Noble, whose
patience, encouragement, and support of all of my personal and
professional endeavors has been unparalleled. Next, my parents,
Dr. Mahmood and Linda AliKhan, and my sister, Leah.
My father was born in British India, and after independence
and partition, he made his way to Pakistan before coming to the
United States and settling in Baltimore, Maryland. Without my
family's sacrifices, and without the opportunity that only this
great country can provide, I would not be sitting here today,
one generation removed from colonial rule, and my father would
not be sitting here behind me.
I had the incredible good fortune to begin my legal career
as a law clerk to Judge Louis Pollak, on the district court in
Philadelphia, and Judge Thomas Ambro, on the Third Circuit. I
can imagine no better judicial role models for a young lawyer.
And, I have carried the lessons I learned from both throughout
my career and onto the bench on the DC court of appeals.
Judge Ambro is here today, and I know Judge Pollak is here,
in spirit. In fact, my husband is wearing a tie that belonged
to Judge Pollak that his wife, Kathy, had made for him several
years ago.
I am also joined by friends and colleagues spanning my time
at the Justice Department, in private practice, and at the
office of the attorney general for the District of Columbia.
These are lawyers who embody hard work, integrity, and
kindness, and from whom I have learned so much.
Finally, I am joined by members of my court family,
including Chief Judge Blackburne-Rigsby. I am so grateful to my
incredible colleagues on the DC court of appeals, to the
hardworking staff that keep the wheels of justice turning, and
to the law clerks and interns who have made our chambers a
vibrant second home. Thank you again for the opportunity to
appear before you today, and I look forward to your questions.
Chair Durbin. Thanks, Judge AliKhan. Ms. DeClercq.
STATEMENT OF SUSAN K. DECLERCQ, NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN
Ms. DeClercq. Thank you and good morning, Chair Durbin,
Ranking Member Graham, and all Members of this Committee, and
their staff. It is a privilege to be here today. I want to
extend my sincere thanks to President Biden for the great honor
of this nomination. And, I am particularly grateful to my home
State Senators, Debbie Stabenow and Gary Peters, for their
recommendation and faith in me, as well as their warm
introductions today.
I am joined here today by my wonderful family. My husband,
Greg, who I want to thank for always supporting me, and for
running our household and keeping us fed throughout this whole
process. And, our three children: our oldest daughter, Zoe, who
just finished her first year at Michigan State University; our
son Colin, who will be a senior in high school next year; and
our youngest, Tabby, who is missing out on her last middle-
school track meet to be here with me today. I love you all more
than life itself.
Also here with me are my childhood best friend and my dear
friend, Mick Tousley. And, I am also thrilled to have my
mentor, my role model, and my dear friend, Judge Judy Levy. She
has been an inspiration to me, and I look forward to being
judicial colleagues, if I am fortunate enough to be confirmed
as a district judge.
My mother, Marcia DeClercq, and my stepfather, Krishnan
Iyer, could not be here with me today due to health issues, but
they are here with me in spirit, and I know that they are
watching me with pride today. I also want to mention my
wonderful in-laws, Judy and Mike, who are also joining us
remotely, as well as many other family members, friends, and
neighbors.
I'd like to thank my wonderful colleagues at Ford Motor
Company, who have been gracious and supportive, especially my
amazing team of investigators, and assistant, Carolyn, who are
a joy to work with every day.
And last, my longtime friends and colleagues at the U.S.
Attorney's Office in Detroit. You all know who you are, and I
could not have done this without you. And, I'm so proud to
represent the amazing lawyers in the often-overlooked Civil
Division.
Sitting here today, I am both awed and humbled at the
journey that my life has taken, from being left on the steps of
a hospital in Seoul, South Korea--a place that my birth mother
knew that I would be found--to being adopted by my mom in the
United States, who raised me as a single parent for most of my
life. I am acutely aware that I could not have the life or
opportunities that I have had without both of these remarkable
women.
I have spent most of my career in public service as a way
to give back to the people and the country that has given me so
much. And, I welcome the opportunity to possibly serve again,
this time as a United States district judge. Senators, thank
you for considering my nomination and I look forward to
answering your questions.
Chair Durbin. Thank you, Ms. DeClercq. Judge Munley.
STATEMENT OF HON. JULIA K. MUNLEY, NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Judge Munley. Thank you, Mr. Chairman, Ranking Member, and
Committee Members. Today is the greatest honor of my life, to
be before this esteemed Committee. I want to personally say
thank you to Senator Casey for your kind words. And, thank you,
Senator Casey and Senator Fetterman, for your confidence in me.
To President Biden, I am so honored by your nomination.
I want to recognize those who are here with me today,
who've supported me along the way. First and foremost, my
husband, Patrick, without whose enduring support and
encouragement every day, right from the beginning, I would not
be here without you. Thank you, and I love you. To my sister,
Gwen, and my niece, Neave, I love you. Thank you for always
being supportive and making me laugh. You are great.
To my cousin, Marion, who is like a sister to me, I love
you, and, Matt, thank you, both. To the two persons who I
really would not be here without, who taught me about the
importance of integrity, hard work, and family, my mother, Dr.
Kathleen Munley, who is watching from home. Keep saying
prayers, mom. I love you. And, to the one who would have
absolutely loved to have been here today before you, Senators,
my dear father, United States District Court Judge James
Munley. He is with me today, watching and rooting from above.
To all my relatives, my loved ones, my cousins, the
Munleys, my Aunt Bernadine, the Rogans, my in-laws, can't
mention them all, they're too many. To Alice, who helped me so
much, from day one. Lewis, who's always been there. My beloved
friends from home, Archibald, Scranton, Northeastern
Pennsylvania, my colleagues on the Court of Common Pleas, the
members of the Lackawanna Bar Association, my staff members,
and all who have submitted letters on my behalf. I thank each
one of you for your words of support and your encouragement
throughout this process. And, to those who have gone before me
and paved the way, I owe you so much.
Senators, I truly appreciate this Committee's consideration
of my nomination and look forward to answering your questions
today.
Chair Durbin. Thank you, Judge Munley. Judge Oliver.
STATEMENT OF HON. VERNON D. OLIVER, NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT
Judge Oliver. Thank you, Chair Durbin, Ranking Member
Graham, and Members of this Committee, for scheduling and
holding this hearing. Thank you to Senators Blumenthal and
Murphy for the generous and kind words, continued support, and
encouragement, not only this morning, but over the years. Thank
you, both also, for recommending my nomination. Thank you to
President Biden for this nomination. It is truly the honor of a
lifetime.
I'd also like to thank the people of the State of
Connecticut for the privilege of allowing me to serve them
these past 14 plus years as a Superior Court judge and prior to
that, at the offices of the attorney general, and with the
division of criminal justice.
I wish to introduce my family. First, Ann, my wife of 19
years. You are my foundation and most trusted confidant. My 17-
year-old daughter, who will be entering college in the fall,
and my 16-year-old son, who's a high school junior. You are
both my inspiration and make me proud to be your father every
single day.
I would like to thank my family and friends watching from
Connecticut and all across the country, as well as my many
mentors and colleagues, both past and present, for their
guidance throughout the years. Hello to the Middlesex
Courthouse staff back home, continuing to do the people's
business while I'm here before this Committee.
Finally, I wish to honor the memory of my late parents,
Thelma Ree Gadson and Willie Oliver, who came north from South
Carolina and Alabama, respectively, found each other in
Connecticut, and made a large, loving, blended family. I'm
honored to come before this Committee and ask, humbly, for your
support so that I might continue to serve the public as a
district court judge. I'm happy to answer any questions you may
have.
Chair Durbin. Thanks, Judge Oliver. We'll have 5-minute
rounds for each Senator, and I'll start.
It's interesting. I can't tell you how many times I've
heard nominees come before us and tell their stories. And,
there are some recurring themes that always strike me, not the
least of which is a salute to talent and hard work that each of
these nominees, and so many others, bring to this room as they
pursue their judicial careers.
Also, salute to families. Over and over again, we hear from
nominees how one family member especially, or perhaps two,
stood behind them at a critical moment in their lives and made
the difference in their decisions on going forward.
And, I can't help but note, at least with two of our
nominees today, also a salute to immigration. Immigration is
what made America. My mother was an immigrant to this country,
and I serve as Chairman of the Senate Judiciary Committee. I
hear, on the stories of Judge AliKhan, what your parents, and
others, and your family, went through coming to the United
States. I'm sure a treacherous journey in many ways, but the
determination to come here and succeed and the pride that they
take in seeing the next generation become leaders in our
Nation.
Ms. DeClercq, what an amazing story to be abandoned as a
child and then to be part of a family of adoption that made the
difference in your life and brought you to this moment in
history. There's a lot of things said about immigration by
politicians these days, but I hope that we'll have some honest
reflection by all of us the fact that immigration has made
America what it is today, as far as I'm concerned.
Judge Munley, I listened to Bob Casey, who's a dear friend,
and John Fetterman, who supports you as well, and I heard the
story of your family. I was particularly struck by one incident
in your life I'd like you to comment on. In private practice,
you represented an emergency responder exposed to toxins and
debris while working at Ground Zero in the disaster site at the
World Trade Center after 9/11.
You ultimately helped him recover an award from the 9/11
Victim Compensation Fund to compensate him for the health
issues that he faced. Could you tell us a little bit about that
experience and what it meant to you?
Ms. Munley. Thank you, Senator, for that question. It was
an honor to represent that individual and to do that pro bono
work. That gentleman left Luzerne County a day or two after 9/
11 and threw caution to the wind. Without a care for his own
well-being, got in a car and drove to New Jersey and made his
way over to Ground Zero to help persons in any way he possibly
could.
And, I had the honor of representing him, right from the
beginning through the process. Gathering witness statements,
interviewing individuals, getting all of his medical records to
support the serious pulmonary injuries he sustained at Ground
Zero. He gave everything during those days. It brought me back
to the whole reason why I went to law school, to give back
public service.
If I have the honor of being confirmed, this would be a
continuation of my life's commitment to public service and
upholding the rule of law.
Chair Durbin. Thank you. Judge AliKhan, as I look at your
background as deputy solicitor general and solicitor general,
you have had litigation experience which few nominees bring to
this table. I noticed that there's somewhat of a fraternity, or
sorority, of solicitors general across the country, and many of
them have written in support of your nomination, even those of
the opposite political party. What is it that you believe
guided you in that pursuit?
Judge AliKhan. Thank you, Senator. I was so fortunate to
work with an incredible group of public servants, across the
country, and I think we all served different attorneys general.
We knew that what united us was greater than what divided us,
and that when we could come together and speak with one voice,
it'd be a very powerful voice.
Obviously, we oftentimes were on opposite sides of the
litigation because we served different attorneys general with
different priorities. But, when we did that, we were on
opposite sides of the V.--we litigated with good faith and good
humor. I think that public service is so important, and having
the opportunity to work, not just with dedicated public
servants in the District of Columbia, but across the country,
has been just absolutely the opportunity of a lifetime.
Chair Durbin. And, in all candor, you've been drawn into
some political issues in your capacity. Have you not?
Judge AliKhan. Yes, Senator.
Chair Durbin. And, it's interesting to note that the
solicitors general who support you are both political parties.
Judge AliKhan. Yes, Senator. We have a wonderful fraternity
or sorority, as you said. I think one of the last briefs I
filed before joining the bench had 39 State signatories, and
I'm very grateful to have the bipartisan support that I do from
that community.
Chair Durbin. Judge Oliver, many of my friends who are
practicing attorneys long for the day, and just have vague
memories, of an actual trial experience. It seems to be a hard
thing to come by these days. I read here you've presided over
approximately 320 cases that have gone to verdict or judgment.
So, you've seen your fair share of trials. Could you comment on
that experience?
Judge Oliver. Thank you for the opportunity, Senator. I
think the right to a jury trial, whether civil or criminal, is
really at the foundation of our justice system. One of the
things I would look forward to, were I so fortunate to be
confirmed, is continuing to try jury cases, civil or criminal.
In Connecticut, it's a bit of a lengthier process. In the
Federal district, it's a quicker process.
Regardless, I think it's important that individuals,
frankly, who have better things to do with their time,
nonetheless, come in and dedicate themselves to the task of
judging facts of complete strangers, taking the law from
someone they haven't met before, judging credibility from
individuals they haven't met before, deliberating to a common
purpose in light of their experience, reason and common sense,
and attempting to reach a unanimous verdict on issues of guilt,
or not guilt, or liability.
I think it's so important and I was fortunate to be able,
in my time of public service, to take part as a prosecutor in
about two dozen criminal jury trials, and as a judge in about
300 bench trials, and then as a judge, about two dozen more
criminal and civil jury trials. It's something I'm proud of. I
think it's something that's important and necessary, and I look
forward to the opportunity to continuing to do so on the
Federal level.
Chair Durbin. Thanks, Judge. Senator Graham.
Senator Graham. Thank you very much. Judge--Ms. Khan,
AliKhan, you were the solicitor for the DC. Is that right?
Solicitor General for DC?
Judge AliKhan. Yes.
Senator Graham. One of the issues you got involved in was
Safehouse v. DOJ. Do you remember that?
Judge AliKhan. Yes, Senator.
Senator Graham. And, I think, you took a position
advocating for safe injection sites for drug users?
Judge AliKhan. The position that we took in that brief that
was joined by, I believe, 15 or 16 States, was that the opioid
crisis affects different jurisdictions differently, and we're
all trying, and should be looking to novel solutions. And,
Philadelphia thought that for the nature of its opioid problem,
that a safe injection site might be one of those novel
solutions. And so, as States that are all facing the terrible
ravages of fentanyl and heroin, we wanted to give them that
latitude and support their ability to experiment in ways of
curbing this crisis.
Senator Graham. Do you think there's a safe way to take
fentanyl?
Judge AliKhan. Senator, our brief was not to recommend any
particular type of safe injection site. It was to say, that if
Philadelphia thought that that was one way of assisting their
community with the opioid crisis, that they should have the
latitude.
Senator Graham. Would you be okay with a State basically
allowing people to take fentanyl under State supervision?
Judge AliKhan. Senator, until we are able to get the opioid
crisis under control, I think we need to give users the
resources they need.
Senator Graham. Do you think that's getting it under
control, allowing State-supervised use of one of the most
deadly drugs known to man?
Judge AliKhan. The site that Philadelphia had proposed had
treatment services, it had an overdose prevention.
Senator Graham. How do you view fentanyl?
Judge AliKhan. I think fentanyl is a nationwide crisis,
Senator.
Senator Graham. I mean, in terms of the danger fentanyl
presents to an individual, those surrounding the individual.
Judge AliKhan. I think it's quite dangerous.
Senator Graham. Okay. All right. I'm sure Senator Hawley
will ask you about the Evangelical Lutheran Church, so I won't
take any of his time.
Ms. Munley--Judge Munley, we have some common friends. Don
McGahn is a family friend. Is that correct?
Judge Munley. My nephew.
Senator Graham. Okay. Well, that's--I guess you can still
be friends and have a nephew.
Judge Munley. He's a friend.
Senator Graham. Okay. Bottom line, you have very little
criminal practice. Is that true?
Judge Munley. Senator, over the course of my 20 years as a
trial lawyer, I handled criminal cases, I handled DUI cases, I
sat third or fourth chair in a bench murder trial, and did all
the brief writing for that, including the appellate brief
writing, as well as handing criminal juvenile cases.
Senator Graham. So, you feel like you're conversant in
criminal law?
Judge Munley. I am completely confident, Senator. If I have
the honor of being confirmed in handling any criminal case that
comes before me as a trial judge, I've handled criminal cases
to verdict, so, would be completely confident in handling any
criminal case assigned to me.
Senator Graham. Thank you very much.
Chair Durbin. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. I want to just
begin by echoing the Chairman's remarks about the extraordinary
impressiveness of this panel and, frankly, of many of the
nominees who have come before our Committee, who have been
nominated by the President, to both the district court and
appellate court.
Your story is not only of talent and hard work, as the
Chairman said, but also of overcoming obstacles. And, the
diversity that you represent has been part of your life story
in a way that is very, very profoundly important to the work
that you will do because you are the face and voice of justice
in America.
Very few litigants go beyond the district court. Having
litigated often in our Federal courts, I know how difficult it
is to go beyond the district court, in cost, and time, and
representation. And, you will be the last source of justice for
many Americans, countless Americans, the face and voice of
justice. And so, I just want to say how proud I am that you
look like America, and that you will no doubt think like
America, in your common sense and judgment.
I want to ask you, Judge Oliver, you have served with
extraordinary distinction in our State justice system and on
our State bench. How does that State court experience prepare
you to be a Federal judge?
Judge Oliver. Thank you very much for the question,
Senator. Mechanically, both as a prosecutor dealing with
criminal trials, in every trial, there's an issue of Federal
law, whether it's the Fourth Amendment with Mapp v. Ohio and
the exclusionary rules apply through the States. And, there's
Brady v. Maryland, obviously, that continuing obligation and
duty of the prosecutor to disclose exculpatory information down
to Giglio, with the impeachment requirement.
And then, on the State court bench in my four plus years,
litigating habeas petitions. Again, the Sixth Amendment right
to effective assistance of counsel. Again, with those
petitions, the Eighth Amendment, a prohibition against cruel
and unusual punishment. I've dealt with constitutional issues
at the State court level continuously for the past 14 plus
years.
Procedurally, I am committed to doing what I've done the
past 14 plus years as a State court judge. Giving the litigants
a fair hearing on the merits, being impartial, and neutral
arbiter, researching the law, finding facts, restraining myself
only to the task before me.
Senator Blumenthal. You mentioned one of the differences
between our Connecticut system and the Federal system, which is
in jury selection. There's a very elaborate voir dire process
in our State courts involving individual questioning of juries.
In the Federal system, it is much more pro forma, much more
streamlined.
You know, I attend a lot of immigration and naturalization
hearings where we talk about new citizens, and the privileges
of citizenship, the right to vote and the right to serve on
juries. And, I think you would agree with me, that people
should feel privileged to serve on juries. Would you agree?
Judge Oliver. I absolutely would, Senator. Thank you. I
tell the jury, the larger jury panels, when I address them in
the morning before jury selection, that it is both a burden and
a privilege of citizenship. Connecticut is recently, in its
attempt to expand the diversity of jury pools, including those
who are of lawful permanent residence, to those who are
eligible for jury service.
And so, I have selected, as a prosecutor, many juries, as a
judge, many juries, whether they ultimately went to a verdict.
And, I've not yet found a jury, despite the difficulty of the
underlying charge, whether it's murder or sexual assault. I've
not found a jury that has not come out better, in their own
words, better for having gone through the process, and
developed an appreciation for the importance of a jury of one's
peers.
Senator Blumenthal. Thank you. Judge AliKhan, Senator
Graham asked you about a particular case, and a position, that
your office took in that case. The office of attorney general
for the District of Columbia is the equivalent of the State
attorney general. Correct?
Judge AliKhan. Yes, Senator, it is.
Senator Graham. And, the positions taken by your office in
any litigation, with all due respect to assistant attorneys
general or even the solicitor general, are determined primarily
by the attorney general. Correct?
Judge AliKhan. Senator, that is quite correct. The attorney
general sets the litigation priorities for the District,
including multi-State and amicus briefs.
Senator Blumenthal. Thank you. Thanks, Mr. Chairman.
Chair Durbin. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman, and
congratulations, to all of you. Ms. DeClercq, do you believe in
stare decisis?
Ms. DeClercq. Absolutely.
Senator Kennedy. Tell me what that is.
Ms. DeClercq. Is to follow precedent.
Senator Kennedy. Okay. If you're confirmed, will you follow
all higher court precedent?
Ms. DeClercq. Yes. I pledge to this Committee that, if I am
confirmed, I would follow all Supreme Court, Sixth Circuit
precedent.
Senator Kennedy. Okay. Would you have followed the Dred
Scott case?
Ms. DeClercq. There are some foundational cases where
there----
Senator Kennedy. Yes, but, let's just start out with the
basics----
Ms. DeClercq. Sure.
Senator Kennedy [continuing]. If we could. Would you have
followed the Dred Scott case?
Ms. DeClercq. As a Federal lower court judge, I would have
been obligated to follow that case as precedent.
Senator Kennedy. So, you would have? You would have?
Ms. DeClercq. If I had been a lower Federal court judge, I
would have been obligated to do so. Unless the----
Senator Kennedy. That's a yes? There are only two doors
here. Yes or no.
Ms. DeClercq. Yes. If I had been a judge at that time, I
would have been obligated to do so, yes.
Senator Kennedy. Okay. Would you have followed Plessy v.
Ferguson?
Ms. DeClercq. Again, Senator, as a lower court Federal
judge, if I were to be confirmed as a district court judge, I
would be obligated to follow all Supreme Court precedent. If
the Supreme Court determined that there was a precedent, that
it found that it should overrule, they have that opportunity to
do so. But, as a lower court judge, I would be obligated to
follow it.
Senator Kennedy. That's a yes?
Ms. DeClercq. Correct. Correct.
Senator Kennedy. Okay. Judge AliKhan. Am I saying that
right?
Judge AliKhan. Yes, Senator.
Senator Kennedy. Okay. Will you allow your personal or
political beliefs to affect your decisions?
Judge AliKhan. No, Senator. My personal beliefs have never
played a role in the positions I took as an advocate, nor do
they play a role in the positions I take as a judge when I'm
neutrally deciding a case.
Senator Kennedy. Okay. I'm glad we got that off the table.
Let me ask you a few questions about how you view the world. Do
you believe that minorities need special help to succeed?
Judge AliKhan. Senator, that issue is currently pending
before the U.S. Supreme Court----
Senator Kennedy. Yes, ma'am. We just established that
you're not going to let your personal opinions affect your
decisions. You're going to follow precedent.
Judge AliKhan. Absolutely----
Senator Kennedy. Okay.
Judge AliKhan [continuing]. I will follow whatever
precedent comes from the Supreme Court.
Senator Kennedy. Let's talk about your personal opinions,
which will be irrelevant to your position on the court. Do you
believe that minorities need special help to succeed?
Judge AliKhan. Senator, again, I don't have a personal
position. And, sitting here as a current sitting judge and as a
nominee----
Senator Kennedy. Have you thought about that? Have you
thought about that?
Judge AliKhan. I am aware that we have given preferential
treatment. It's been subject to a lot of different court cases.
The issue----
Senator Kennedy. Do you agree with that or disagree with
it?
Judge AliKhan. It's not a question, Senator, of whether I
agree or disagree----
Senator Kennedy. Sure, it is.
Judge AliKhan [continuing]. I apply the law as it comes
before me.
Senator Kennedy. You're being confirmed to the Federal
bench. And, presumably, you're a critically thinking person.
I'm just asking you what you believe. Do you--may I ask you
another--one more time. Do you believe that minorities in
America need special help to succeed? It's a very simple
question.
Judge AliKhan. Senator, to the extent policymakers have
enacted laws that provide protection----
Senator Kennedy. Do you agree with those policymakers?
Judge AliKhan. I am not a policymaker. And, as a sitting
judge----
Senator Kennedy. You don't have an opinion or you're just
not going to answer? I don't want to waste more time if you're
not going to answer.
Judge AliKhan. Senator, as a sitting judge, it is
inappropriate for me----
Senator Kennedy. No, it's not.
Judge AliKhan [continuing]. To comment on my personal
views----
Senator Kennedy. No, it's not. We've already established
that you're not going to let your personal beliefs interfere
with your decisions. So, I think you ought to tell us what your
personal beliefs are. Is--do you believe that the--do you
believe in systemic racism?
Judge AliKhan. Senator, again, that's a question for
sociologists and academics. I take any case----
Senator Kennedy. You don't have an opinion and you never
thought about it?
Judge AliKhan. I take each case as it comes before me on
the individual facts.
Senator Kennedy. What is systemic racism?
Judge AliKhan. My understanding is that it's a sociological
theory that racism plays a systemic role. But, beyond that, I'm
not an academic. I'm not a sociologist. I am a judge and I
apply the facts and the law to the cases that come before me.
Senator Kennedy. Right, but you don't have an opinion?
Judge AliKhan. No, Senator. I do not.
Senator Kennedy. Do you have an opinion on anything you'd
like to share with us?
Judge AliKhan. Senator, as a sitting judge, it's
inappropriate for me to comment on any personal views----
Senator Kennedy. No, it's not.
Judge AliKhan [continuing]. I might hold, because I would--
--
Senator Kennedy. We've just established--the first question
I asked you was, your view of the world does matter. If you've
never thought about the world, if you've never thought about
these issues, you're not qualified to be a Federal judge. And,
I think you ought to come here and answer--I think all of you
should come here and answer them forthrightly.
If I ask you--may I ask you one last question? And, I will,
quickly, Mr. Chairman. Do you believe--you sit on the District
of Columbia Court of Appeals. Is the District of Columbia Court
of Appeals systemically racist?
Judge AliKhan. Senator, as a sitting judge, I think it
would be inappropriate for me to comment. I can say all of my
colleagues take the cases open-mindedly and on the facts----
Senator Kennedy. But, do you think it's systemically
racist?
Judge AliKhan. I don't think that it is, Senator----
Senator Kennedy. Okay.
Judge AliKhan [continuing]. But, I also don't know if I'm
qualified to give that type of assessment.
Senator Kennedy. Well, you sit on the court. Right?
Judge AliKhan. I think all of my colleagues take their
cases with an open mind, without any prejudice, and faithfully
apply the law to the facts.
Senator Kennedy. Well, I'm disappointed you won't answer my
questions, but I thank the Chairman for giving me the extra
time.
Chair Durbin. Thank you, Senator Kennedy. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. I want to
acknowledge the fact that President Biden has nominated some of
the most diverse nominees, highly qualified nominees to all of
our courts, and diversity and inclusion is really critical.
And, I see, at least, in two of our nominees this morning, that
they are not far from the immigrant experience, which I think
is a very critical part of inclusion and diversity on our
courts.
And again, as the only immigrant serving in the U.S.
Senate, I think I have many life experiences that are common to
our two nominees. And, to all of our nominees, thank you very
much for your willingness to continue public service.
I'd say that when we ask questions such as the import of
Plessy, Dred Scott, Korematsu, these are decisions that are--
that are fine examples of how the Supreme Court gets it really,
really wrong. And, I would say some of the Court's decisions
now will fit into that category, and it may not take that long
for history to make that judgment.
I ask the following two initial questions, to ascertain the
fitness to serve, of every nominee who comes before any of my
Committees that I sit on. So, I will ask each of you those two
questions. And, we'll start with Judge AliKhan.
Since you 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?
Judge AliKhan. No, Senator.
Ms. DeClercq. No, Senator.
Judge Munley. No, Senator.
Judge Oliver. No, Senator.
Senator Hirono. Have you ever faced discipline or entered
into a settlement relating to this kind of conduct?
Judge AliKhan. No, Senator.
Ms. DeClercq. No, Senator.
Judge Munley. No, Senator.
Judge Oliver. No, Senator.
Senator Hirono. Judge Oliver, I really appreciate the fact
that you talk with students about citizenship. I think that
that is something that we--all of us should be focusing on,
especially--and talking about, especially as I believe that the
ability for people to vote, which is a basic and fundamental
right of citizenship and responsibility, I believe there are
too many States that are really limiting our right to vote.
So, thank you very much for taking the time to talk to our
young people, encourage them to be aware of public service. So,
in your responsibility, Committee on Judicial Ethics, why are
judicial ethics and judicial integrity important to our justice
system?
Judge Oliver. Thank you for the question, Senator. I think
the short answer is when the people are aware that the judges
whom they come before are governed by a rule of ethics, they
have more faith that the judges police themselves. And, that
when there's a situation where a judge's impartiality might
reasonably be questioned, that judge would step aside. So, it
restores and continues--bless you, Senator--restores and
continues faith in the criminal justice system by the litigants
who come before us.
Senator Hirono. Thank you. I completely agree with you.
Judge AliKhan, you have spent thousands of hours on pro bono
work. Can you just tell us why the pro bono work has been so
important to you?
Judge AliKhan. Thank you, Senator. There are so many
litigants in this country that don't have the benefit of
representation. Obviously, we have enshrined a right to counsel
in criminal cases, but there are many civil cases, collateral
proceedings where there's not a constitutional or statutory
right to counsel. And, I think, as lawyers, we owe an ethical
duty to our legal community to represent those that cannot
afford representation, both because it, I think, helps advance
the interests of those individual litigants, but it also serves
the court.
I have been fortunate to be appointed, by both the Third
Circuit and the Sixth Circuit, to handle cases where they felt
that the use of counsel would be helpful.
Senator Hirono. Thank you. Judge DeClercq, the fact that
you have a very unique background, to say the least. Has being
an immigrant been one of the reasons that you wanted to become
a lawyer? And, does it inform the, you know, how you approach
decision-making as a judge?
Ms. DeClercq. Yes, I'm very proud of being an immigrant. It
is a more unusual immigrant experience in that I was brought to
the United States as an infant and adopted by my family. But, I
have always been very aware of how different my life would have
been had that not happened, and the incredible opportunities
that this country has given to me. And so, I've spent most of
my professional career in public service.
I deeply appreciate, not only the country, but the
Government, which was why I joined the Department of Justice.
And, for me, it's always been about equality and justice. And,
I think that that is part of the immigrant experience.
Senator Hirono. Yes. I think you are another example of
immigrants coming to this country to create a better life, but
the appreciation we have for a country that afforded us
opportunities we never would have otherwise had. I just want to
mention, Mr. Chairman, for Judge Munley, it must be an
incredibly meaningful experience for you to be sitting here, to
be on the court that your father served.
Judge Munley. Thank you, Senator. It truly is an honor. He
taught me about what it is to be a good judge. He served as
such an example to me of what it means about judicial
temperament. And, I consider that one of the most important
attributes for a judge.
Senator Hirono. Thank you. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Hirono. And now, Senator
Blackburn.
Senator Blackburn. Thank you, Mr. Chairman. And,
congratulations to each of you on your nomination.
Judge AliKhan, I want to come to you. Some remarks you
made, when you were solicitor general in DC, to the American
Constitution Society event. And, you said, and I'm going to
quote you through this, that in your job, you ``try to carry
out and live some of the values of ACS.'' And, here's a portion
of the mission statement for ACS. And, this is off of their
website. It states that, ``ACS mission includes redressing the
founding failures of our Constitution and enduring inequities
in our laws in pursuit of realized equality.''
So, in your role, as both an advocate and, now, as a judge,
do you subscribe to that part of the mission statement? And,
what do you see as the enduring inequities in the laws that
need to be redressed?
Judge AliKhan. Senator, when I said, as solicitor general,
that I carry out the values of ACS, it was the values of
mentorship and discussion, and vibrant discussion and debate--
--
Senator Blackburn. So then, you don't agree with what is on
their website?
Judge AliKhan. I----
Senator Blackburn. So, here's another part for you. It also
notes, on their website, that its goal is, ``to promote laws
and policies that advance realized equality.'' So, what laws
and policy are you trying to promote? And then, is this part of
what you're trying to carry out? Is it activism, as a judge,
that you're seeking? So, as a Federal judge, what would that
look like if you're trying to live this out, if you're trying
to carry it out, if you're trying to change those laws?
Judge AliKhan. Senator, as a judge, it is not the role to
change laws. It is to interpret and apply the laws that this
body passes.
Senator Blackburn. Okay. Well, in your comments, that's
what you said. I'm quoting you back to you. So, how would you
advance realized equality from the bench?
Judge AliKhan. Senator, in my current role, I take the law
and I apply it to the facts and cases before me. That is what I
would do if I were fortunate enough to be confirmed.
Senator Blackburn. Okay. So, how would you fulfill your
duty to neutrally apply the law of people that are coming
before you? So, describe to me your method of statutory or
constitutional interpretation. How would you carry that out?
Judge AliKhan. Absolutely, Senator. When I am confronted
with a statutory or a constitutional interpretation case, I
take my cues from the Supreme Court. The Supreme Court has
instructed in statutory interpretation cases, you first must
look at the text. And, if the text is on----
Senator Blackburn. Okay. So, what is your understanding of
``original public meaning'' ?
Judge AliKhan. My understanding of original public meaning
is that it is a tool of constitutional interpretation that the
Supreme Court has used in interpreting the Second Amendment and
the Confrontation Clause. And, I would faithfully apply the
Supreme Court's mechanisms
Senator Blackburn. Okay.
Judge AliKhan [continuing]. For interpreting----
Senator Blackburn. Original public meaning seeks an
understanding of the statute as it would have been understood
by the general public at the time of passage. Okay. Let me move
on with you for something else.
I--your previous nominations process, you answered several
questions for the record indicating your views on when
nationwide injunctions are appropriate.
So, can you point to any provision of the Constitution or
Federal law that expressly permits a single district judge to
grant relief that is binding on the entire nation? Give me one.
Judge AliKhan. The All Writs Act and Rule 65 and judicial
precedents do not foreclose a district judge from entering
relief that is beyond the geographical boundaries, but it
should be as an all injunctive relief, sparingly used because
it's a drastic remedy.
Senator Blackburn. But, it is appropriate that neither the
Constitution nor any Federal statute explicitly authorizes
district judges to issue nationwide injunctions. Isn't that
correct?
Judge AliKhan. It is an equitable remedy that has not been
foreclosed.
Senator Blackburn. Isn't that correct? Yes or no?
Judge AliKhan. It is correct, that there is no law----
Senator Blackburn. That is accurate.
Judge AliKhan [continuing]. One way or another.
Senator Blackburn. That is correct. Thank you. I appreciate
the time.
Chair Durbin. Senator Hawley.
Senator Hawley. Thank you, Mr. Chairman. Congratulations to
all of the nominees.
Judge AliKhan, I think last time you and I visited, it was
before the Homeland Security Committee. And, I asked you a
number of questions there. You--including some for the record,
you answered those, which I appreciated. One question that I
asked you, and I ask every nominee, actually, on that Committee
and this one, is whether or not the nominee has ever litigated
against a religious liberty claim. Usually the answer to
that's, no. In your case, you answered, yes. And, you listed
one, two, three, four, five different cases over a period of
years, actually, in which you have litigated against
individuals' or churches' religious liberty claims.
So, let's just talk about a few of those, if we could.
Let's start with some of your work during COVID. Case you list
here, Capitol Hill Baptist Church v. Bowser. Do you remember
that case?
Judge AliKhan. Yes, Senator.
Senator Hawley. You remember working on that case?
Judge AliKhan. Yes, Senator.
Senator Hawley. This was a case involving the District's
lockdown policies that shut down churches in the District. Is
that correct?
Judge AliKhan. It concerned litigation over provision of
the lockdown policies. The policies restricted all types of
activity in the District.
Senator Hawley. All types of activity in the District?
Judge AliKhan. Yes, Senator.
Senator Hawley. Did it restrict mass protests in the
District?
Judge AliKhan. Well, it restricted activities that one
normally expected, including work, going to stores. It also did
include these provisions that were challenged, concerning
churches.
Senator Hawley. So, it exempted unusual or unlikely
activities that's in the statute that's in the ordinance?
Judge AliKhan. When the mayor was enacting these orders at
the outset of the pandemic, I think she was trying to be as
comprehensive as she could. And, the order did restrict a
number of daily activities of District residents.
Senator Hawley. But, it exempted mass protests?
Judge AliKhan. I don't believe it said anything, one way or
another.
Senator Hawley. Can you point me to the text where it
exempted mass protest?
Judge AliKhan. I don't believe it said anything one way or
another.
Senator Hawley. Of course it didn't, because it didn't
exempt mass protests. Right? You know that.
Judge AliKhan. I think it was silent on the issue because I
don't believe it was contemplated by the mayor's office.
Senator Hawley. Ahh, so, you think that mass protests
should be in a different category than religious observances?
Is that your position?
Judge AliKhan. I think if there were protests on the book,
then the mayor might have thought about that when she was
enacting the COVID-19 restrictions. But, I think she was trying
to protect public health.
Senator Hawley. So, you think it's fine to say to religious
people that they are prohibited from gathering outside, wearing
a mask, socially distanced? They can't do it. But, if you want
to come and protest, defund the police, if you want to support
that, that's fine. You can gather en masse, person to person,
close up, thousands of people, that's okay. That discrimination
is okay. That is your position?
Judge AliKhan. Senator, that is not my position. I do not--
--
Senator Hawley. It was your position. It's what you argued.
Judge AliKhan. I did not write these orders. What I said--
--
Senator Hawley. You defended it in court.
Judge AliKhan. My----
Senator Hawley. And, you just articulated to me what I take
to be your position.
Judge AliKhan. What I was doing, in Capitol Hill Baptist
Church, was defending the mayor, my client, against a
constitutional challenge to one aspect of the COVID-19
restrictions. We understood that strict scrutiny applies----
Senator Hawley. How did that case go for you?
Judge AliKhan. We lost that case.
Senator Hawley. Why?
Judge AliKhan. It was found that the restrictions did not
meet the standard of strict scrutiny.
Senator Hawley. Meaning they were unconstitutional?
Judge AliKhan. Meaning that they did not survive strict
scrutiny. And, it's a matter of public record that the District
of Columbia did not appeal that decision.
Senator Hawley. Why? Why were they struck down?
Judge AliKhan. Excuse me, Senator?
Senator Hawley. Why were the restrictions that you defended
struck down as discriminatory? Why were they?
Judge AliKhan. Because they did not satisfy----
Senator Hawley. Why didn't they?
Judge AliKhan. The court concluded that there were
restrictions that were not neutral of general applicability----
Senator Hawley. Yes. Yes. Yes. Yes--that's legalese. Why
didn't they? Why didn't they, on the facts? You know the facts.
You're a good lawyer. Why did you lose?
Judge AliKhan. We lost because applying the strict scrutiny
test, the court concluded that the restrictions were not
narrowly tailored----
Senator Hawley. Because?
Judge AliKhan [continuing]. Of a compelling governmental
interest----
Senator Hawley. Because?
Judge AliKhan [continuing]. Senator----
Senator Hawley. Oh, come on, Judge, don't make me do this.
Do you want me to go through it for you? You lost because Mayor
Bowser was going to mass protests, herself, personally, with
thousands of people celebrating them--by the way, which is
fine. We have a First Amendment in the United States. I want to
be clear. That is totally fine. You want to protest, go for it.
I think that's totally fine. That wasn't the problem here.
At the same time she was doing that, she was prohibiting
churches, religious people from gathering, socially distanced,
outside wearing masks. And, the district court said, ``You
can't do that.''
That's discrimination. You can't separate people out based
on their ideological beliefs or their positions. You can't do
that. Right? Isn't that what the district court said?
Judge AliKhan. The district court said that----
Senator Hawley. Do you agree with it?
Judge AliKhan [continuing]. It did not--could not survive
strict scrutiny.
Senator Hawley. For those reasons. Right?
Judge AliKhan. That----
Senator Hawley. Why are you fighting me on this? I can't
figure this out.
Judge AliKhan. I am not fighting you, Senator. I----
Senator Hawley. So, yes, you agree, that's what the
district court said?
Judge AliKhan. That was what the district court concluded.
Senator Hawley. Do you think they got it right--the
district court got it right?
Judge AliKhan. The district court--we did not appeal that
decision. I think that district court decision is consistent
with rulings that we got from the Supreme Court clarifying the
application of the Religious Test to COVID-19 restrictions, in
Tandon, and, the Brooklyn Archdiocese----
Senator Hawley. I think that my time's almost expired, and
I know other Senators want to ask questions. So, let me just
very quickly, here--do you think it's wrong to discriminate on
the basis of religious faith?
Judge AliKhan. Absolutely, Senator.
Senator Hawley. Why did you argue that religious services,
religious people pose a greater risk of infection than people
gathered to argue for defunding the police?
Judge AliKhan. I was representing my client, the mayor, and
consulting epidemiologists had issued orders that she thought
were going to protect public health. It was my role to defend
those as a----
Senator Hawley. Why'd you make that argument? This seems
like a strange argument to me that religious people are
somehow, what, more infectious than folks who have other
ideological positions? I don't get it.
Judge AliKhan. My understanding was the nature of singing
and other things epidemiologists thought could transmit COVID
at a higher rate----
Senator Hawley. You didn't put any scientific evidence in
the record for it.
Judge AliKhan. Senator, those were fast-moving cases and
they weren't going to full briefing and full summary judgment
with a record----
Senator Hawley. That's not what the district court said.
The district court said, that you engaged in--your client
engaged in, and you defended, discrimination on the basis of
religious belief, that you offered no scientific evidence for
it, that you pressed these arguments over, and over, and over,
without any foundation.
Frankly, I'm disappointed that you made those arguments.
You can choose what arguments to make. I'm disappointed you
made those arguments. I'm disappointed you persisted in
defending them, here today. And, for that reason, among others,
I will not support your nomination. Thank you, Mr. Chairman.
Chair Durbin. Senator Tillis.
Senator Tillis. Thank you, Mr. Chairman. Congratulations to
all of you, on your nomination. I'm sure you, and your
families, are proud.
Judge Munley, I have just a quick question for you.
Something that came up in a read, in the background. I think
you gave a lecture on communications, and you had a slide that
referred to, ``invoking religion could be a sign of
deception.'' Can you just--it was--I could try and find the
date, but, it had something--you looked with a furrowed brow.
So, you don't know what I'm talking about?
Judge Munley. I do not recall that.
Senator Tillis. I'll submit it as a question for the
record, then, so that you can have proper time to look at it in
the context. But, it really, the question----
Judge Munley. Absolutely.
Senator Tillis [continuing]. When we submit it for the
record, it's really what was meant by the statement. I'm sure,
like me, you make a lot of public comments, but I'm
particularly interested in how people of faith should interpret
the statement. So, we'll submit that for the record. I'd
appreciate you getting back.
Judge Munley. Absolutely.
Senator Tillis. Ms. AliKhan, have you written any legal
briefs in support of sanctuary city policies?
Judge AliKhan. Yes, Senator. I believe, in my time as
solicitor general, the attorney general joined, or authored,
several of those briefs, and I would have been supporting that.
Senator Tillis. And, what was your thesis put forward?
Judge AliKhan. I believe the cases, that the District was a
drafter on, concerned restrictions on Byrne Act funding.
Senator Tillis. The--I, for one, think it's odd that--I
mean, we're talking about you moving up to a position on the
bench, and yet we're arguing this. I just can't--I'm not an
attorney, so I'm not going to spar with you. I'll leave that to
the attorneys on the Committee. But, it just seems odd to me
that we'd ever be in a position to where we're advocating for a
policy that's fundamentally counter to Federal law. So, help me
understand. Just help me understand.
Judge AliKhan. Senator, I want to make clear this was not a
decision I made to author these briefs, or to join these
briefs. The office of the attorney general is led by an elected
official, the attorney general, and he sets the litigation
priorities for the office.
Senator Tillis. Okay. So, I won't ask your personal view. I
know Senator Kennedy did. But, what I would like to do, Mr.
Chair, if possible, so that we could possibly prevent a second
round, is to yield the remainder of my time to Senator Kennedy.
Chair Durbin. Without objection.
Senator Kennedy. That's nice of Thom. Thank you, Thom. I'm
going to send you a fruit basket. Give me that sheet back.
Judge Oliver, how flexible must an employer be when a worker
asks for a religious accommodation? What's Federal law on that?
Judge Oliver. Senator, in my 14 years as a State court
judge and 11 years as a litigator, I haven't had that issue
presented to me. I can commit to this Committee that if
presented with this issue, I'll research it well and be
prepared to address it in advance of the proceedings.
Senator Kennedy. So, you're not familiar with the Supreme
Court precedent on religious accommodation by an employer?
Judge Oliver. I'm not sufficiently versed on it to be able
to answer it appropriately, Senator.
Senator Kennedy. Okay. Tell me about the political question
doctrine.
Judge Oliver. Yes, Senator. Thank you for the opportunity.
The political question doctrine is the one means by which the
United States Supreme Court can decline to act. It indicates
that when an issue is before the Court that is so inherently
political, and it's in the process of being considered, that
the Supreme Court can decline to act, and leave it to the
appropriate body.
Senator Kennedy. Okay. Give me an example, if you would,
please, Judge.
Judge Oliver. An example of a political question.
Senator Kennedy. Let me ask you, in preparing for the day,
today, you met with White House Counsel?
Judge Oliver. Yes, Senator.
Senator Kennedy. And, their team? They got a good team,
don't they?
Judge Oliver. Yes, Senator.
Senator Kennedy. Did they give you a list of questions to
be prepared for?
Judge Oliver. A list of some questions, Senator, yes.
Senator Kennedy. How many questions were on there?
Judge Oliver. How many questions? A few dozen, I would
suggest. I would estimate.
Senator Kennedy. Just a few dozen?
Judge Oliver. Yes, Senator. I think that's accurate.
Senator Kennedy. Okay. And, where did they get these
questions?
Judge Oliver. Some were taken from prior public hearings
before this body.
Senator Kennedy. My questions?
Judge Oliver. Yours are on that list, Senator. Yes.
Senator Kennedy. Okay. Thank you, Mr. Chairman.
Chair Durbin. Kennedy bar exam lives on. Senator Lee.
Senator Lee. Thank you very much, Mr. Chairman. Thanks to
all of you for being here.
Judge AliKhan, I'd like to start with you. Tell me in one
sentence what a judicial philosophy is. What do you think that
means?
Judge AliKhan. It's the set of principles that a judge
brings with them when they join the bench.
Senator Lee. How would you describe yours?
Judge AliKhan. My judicial philosophy has three components,
Senator.
First, the humility to understand that the judicial role is
quite limited. Legislatures enact laws, executives enforce
them. But, the only role of a judge is to apply the law to the
facts of the case before them.
Second, to make sure that all parties leave my courtroom
feeling like they have been heard, knowing they have been
respected, understanding that I have been well prepared, and
asked good questions.
And finally, that I issue opinions that are prompt yet
thorough, and that are written in such a way that both
litigants and pro se parties can understand.
Senator Lee. What role should the text play when you're
interpreting a provision of the U.S. Constitution or Federal
law?
Judge AliKhan. The text is primary. You look at the text
first. If it is unambiguous, that answers the question, that is
well-settled, Supreme Court precedent.
Senator Lee. Where there's ambiguity, what do you look to,
to resolve the ambiguity?
Judge AliKhan. So, when there is ambiguity, for example, in
a statute, you would look to not just the text, but the
context, if there were, depending on when the statute was
passed, looking at relevant dictionaries from the time, to
understand the public meaning of the words that were used.
Also, looking at the way those words are used in analogous
statutes from the time. Ultimately, once you've exhausted text,
context, history, dictionaries, you can look at canons of
construction----
Senator Lee. But, the effort should involve trying to
ascertain the meaning of those words at the time of enactment,
if a statute, or at the time of ratification, if a part of the
Constitution.
Judge AliKhan. Yes, Senator. That's why you look to
contemporaneous dictionary definitions.
Senator Lee. Thank you. In 2021, you spoke on a panel at an
event, I believe, honoring the 20th anniversary of the founding
of the American Constitution Society. And, in your remarks, you
said, quote, ``I've been able to think through my job to carry
out and live some of the values of ACS.'' Tell me, Judge, how
did you carry out, and live, some of the values of ACS as
solicitor general, and now, as a judge on the DC court of
appeals?
Judge AliKhan. The values of ACS, as I understood them,
were education and mentorship. And, I try to carry those out,
both in my role as an advocate, and now, as a judge, to make
sure that I'm speaking to the next generation of lawyers, to
make sure that I keep an open mind, stay current on interesting
debates, stay current on the current state of the Supreme Court
cases, so that I can apply them faithfully to the cases that
come before me.
Senator Lee. And, what other values might you refer to, to
ACS? Are there others, other than the ones you've just
described?
Judge AliKhan. I understand from Senator Blackburn, there's
a long mission statement for ACS. My involvement with ACS has
always been on these types of panels where we're discussing
legal issues on mentorship events, when I'm speaking to the
next generation of lawyers, particularly about opportunities in
public service.
And then, oftentimes, ACS and the Federalist Society will
pair up at law schools to have different issues sort of aired
and debated. I loved doing, and going to, those events when I
was in law school, and I love speaking at those joint events
because I think you're really getting a way of understanding
the diverse perspectives of the law. I think that makes us all
better, better students of the law.
Obviously, as a judge, my role is just to look at the law
and the facts and the cases that come before me. But, for those
that are still in law school, those that are exploring careers
in academia and policy, I think these are interesting debates
to be having.
Senator Lee. Judge Munley, what can you tell me in one
sentence about removal? Removal, in the Federal jurisdictional
sense, of a case filed in State court.
Judge Munley. That if a case is filed in State court, at
some time, Senators, that one party will file a motion to
remove the case for venue purposes to Federal court,
particularly with diversity cases. I mean, that was more so my
experience with cases that I handled as a trial lawyer in State
court, that sometimes litigant lawyers on the other side would
file a motion to remove the case to Federal court for venue
purposes, and then the case would proceed in Federal court with
diversity jurisdiction.
Senator Lee. Right. Judge Oliver, what can you tell me
about the Dormant Commerce Clause? What it means? What it
stands for?
Judge Oliver. Thank you for the question, Senator. The
Dormant Commerce Clause is considered the opposite side of the
coin from the Commerce Clause. It prevents States--one State--
it prevents one State for attempting to gain a political
economic advantage over another State by burdening that other
State in a way that the home State's not burdened.
Senator Lee. If it does so intentionally, that's one thing.
What if it does so incidentally?
Judge Oliver. I think if it's incidentally, you might look
at the text of the statute and determine it that way. It is
part of Congress'----
Senator Lee. The text of the underlying State statute?
Judge Oliver. Yes, Senator.
Senator Lee. So, if it's written in facially neutral terms
relative to whether it discriminates against interstate
commerce, then is there anything left of the Dormant Commerce
Clause at that point?
Judge Oliver. No. I think there's the important factor of
intentionality, as we're talking about competing economic
interests.
Senator Lee. Okay. Thank you very much. I see my time's
expired.
Chair Durbin. Thank you, Senator Lee. I want to thank the
panelists, and all of their family and friends, who came in
support today. It is interesting, when you've experienced many
of these hearings, the nature of the questions that are asked.
Some of the questions challenge the individuals on the panel
because they ask them for personal views on issues and many are
instructed by the canons not to share personal views but to try
to stick with the law and not to prejudice any pending case or
any future case.
And so, it puts many of the nominees in a tough position.
We all have opinions on things, but, judges do their best to
suppress those, and follow the law and facts in the case which
they're asked to do. So, it creates a challenge in that regard.
Senator Kennedy. Mr. Chairman, may I be heard on that?
Chair Durbin. When I finish, please.
Senator Kennedy. Sure.
Chair Durbin. And, I also want to say that many people have
jobs to do, that are created by statute, by law, for instance,
to represent certain clients. Solicitor general would be
representing, in some cases, the views of a mayor that are
expressed through policy, and through ordinances, and laws, and
the like. They may not be views that you personally share, but,
as a litigant, you have a responsibility to be loyal to your
client, not to allow them to lie, or have anything they say
that is misleading, be part of the record, but to honor them
and defend their position.
One Member of this panel said, and, I think, properly, ``As
a litigator, you do not necessarily share the views of the
people you represent. In fact, very often, having been a
litigator myself, I would say that you may disagree quite
strongly with the views of the people or the litigating
positions, even of the people you represent, but it's your job
to represent them effectively and fairly.''
That was the Senator from Missouri, and I think he was
right in the citation that I've just read to you. I could go
through the panel and say that depending on the nominee, each
of us has said something like that. You do your best for your
client, even though you may not agree with their fundamental
policy views, you have a responsibility to represent them
effectively and professionally.
Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman. I agree. I concur
in part, and dissent in part, with our esteemed Chairman. I
think he's right. We're all attorneys. We've all had clients we
didn't agree with. Hell, we've had clients we didn't like much.
But, you do your job as long as it's ethical. And, I can't
recall a time that I have really pressed a nominee on a
position that that nominee took, on behalf of a client, if I
thought it was in good faith.
I disagree, with our Chairman, that your personal beliefs
don't matter. Those of you who are questioned today, I
specifically asked you if you'd allow your personal beliefs to
influence your decisions. And, you said no, and that's as it
should be. But, if you don't have personal beliefs, then you're
not qualified to serve on the Federal bench. You're just not.
If you're not--if you don't have personal beliefs, you're
not a critical thinker. If you don't have personal beliefs, you
haven't examined the world. You've just been robotic doing what
somebody told you. I think your personal beliefs do matter, and
I think you ought to be able to discuss with us things like
race in society, things like, when does life begin? These are
things that we all grapple with, as Americans, as human beings.
We need to talk about, when does equal protection of the
law attach to a person? Does it attach in the womb? Should it
attach in the womb? We need to talk about racial progress in
America. What we've gotten right. What we've gotten wrong.
America caught the disease of slavery, but we beat it back. We
should be able to talk about that.
I've never asked your opinions, or a nominee's opinions,
about a case that was pending before them, or that might be
pending before them. But, when you come before this body, at
least, this is one person's opinion--when you come before this
body and you refuse to answer a question about your personal
beliefs, people are going to assume what they want. And,
sometimes they're going to assume correctly, and sometimes
they're going to assume incorrectly. But, they're going to
assume and they're going to attribute that belief as your
belief. So, I think you're making a huge mistake.
I understand. I've served only with two Presidents. White
House Counsel officers do their job. They get you prepared.
They give you the questions that have been asked in the past. I
get all that. Okay? But, I just have to dissent from my
Chairman that your personal beliefs don't matter, because they
do. They do, a lot. And, they tell us a lot about you. Thank
you, Mr. Chairman.
Chair Durbin. Senator Kennedy, I respect you much, and I
count you as a friend. But, you, and I, both know the
experiences we've been through in this Committee. Nominees,
potential nominees, even for the highest court in the land,
would not take a somewhat neutral position, saying, ``As a
judge, my personal views don't count.'' They instead give us
obfuscation. We've seen it happen on both sides of the table.
You would think an issue as fundamental and basic and as
well-known as the issue of abortion would be one that you could
express yourself on where you stand, what you feel. But, many,
including nominees for the Supreme Court, would tell us, ``Oh,
you're talking about established law and established
precedent.'' Then along comes the Dobbs decision, and you say,
what is this all about? You know, this isn't what you promised
was going to happen. It didn't come out that way.
So, I understand nominees are in a difficult position.
They're trying to follow the canons as they understand them, as
nominees, and as sitting judges. And, they're also--they don't
want to prejudice future cases or pending cases that they might
sit on. So, that's just part of this process that both sides
will use to their advantage when possible. And, I respect you.
I think you're a person of value and principle, but we disagree
on this.
Senator Kennedy. Well, Mr. Chairman, if I could just
respond though to that. And, Dick, I appreciate that point of
view. I think Supreme Court nominees are in somewhat of a
different position because they're going to be making the
ultimate law of the land. I think lower court nominees are not
in the same position. And, I just don't see what we gain by not
being able to talk about what people believe.
I mean, I would like to hear what thinking people believe
about, for example, is sex a biological fact or a social
construct? I mean, I assume all of you have thought about that,
and have an opinion. I would also point out, Mr. Chairman, this
isn't criticism, you're following past precedent. But, each one
of these individuals, if they're confirmed, are unelected.
They're there for life. For life. And, we're not allowed to
talk about what they believe? And, we're only given--again,
this isn't criticism--5 minutes? Come on.
Chair Durbin. Well, by that logic, if you apply it to the
highest court in the land, how many of them have been in
elective office?
Senator Kennedy. Some. Some haven't.
Chair Durbin. Most haven't.
Senator Kennedy. But, that's why we also have what Earl
Warren was. But, that's why we also----
Chair Durbin. You have to go back in history.
Senator Kennedy. That's why we also devote days to a
Supreme Court hearing.
Chair Durbin. Yes. Instead of 5 minutes, we take 15.
Senator Kennedy. As we should.
Chair Durbin. Yes.
Senator Kennedy. With second and third rounds.
Chair Durbin. Well.
Senator Kennedy. But, anyway, Mr. Lee, my good friend,
wants to say something.
Chair Durbin. I have to be at a place right now, so,
please----
Senator Lee. I will be brief. I just wanted to respond to
the point about Dobbs. I've heard some colleagues say this,
sometimes in the context of this Committee's work, sometimes in
other contexts, that there's this suggestion made, because
nominees came forward and acknowledged that Roe v. Wade was
established precedent, that somehow locked them in, and that
they had, under oath, somehow betrayed their obligation to
testify truthfully under oath.
For every hearing that I've been a part of--and I've been
here for four Supreme Court confirmation proceedings--not one
of those Justices, who has complained about--who's been
complained about, in the wake of the Dobbs decision, said that
Roe, or any other case, was unassailable on any grounds ever,
or was somehow protected under the doctrine of stare decisis
from the possibility that future courts could conclude, as the
Court did conclude in Dobbs, that Roe v. Wade was without
textual foundation in the Constitution.
That it was without the kind of foundation that could make
it a part of the constitutional analysis not rooted in our
Nation's history, tradition, and so forth, as a matter of due
process.
I take issue with the suggestion that any one of these
nominees misrepresented, in any way, shape, or form, their
views on the Dobbs case. They could not answer further
questions about whether it was assailable under a challenge,
and they made no representations as to how it might fare under
the doctrine of stare decisis. Such questions, when asked, are
questions that they're understandably not allowed to answer
under the canons of judicial ethics. Thank you.
Chair Durbin. So, as Chairman, I'm going to take the last
word. The people who were appointed to the Supreme Court by the
Trump administration were precleared for one purpose: to
overrule Roe v. Wade. The Federalist Society, which was the
secret handshake for every nominee who came before us from the
Trump administration, was established for that purpose. We know
that. Regardless of the questions answered here in the
Judiciary Committee, we knew what they were aiming for, and
they finally reached that goal with the enactment of the Dobbs
decision.
But, if you listen to their testimony before this
Committee, they carefully misled us or obfuscated the
situation. You may disagree with me, but that's my opinion. I
look at it, and I thought to myself, ``I know where this
nominee stands,'' and I'm not going to name names, based on
their life experience and where I've seen them rule, or speak,
in the past. That's just the nature of this process.
As I said, I get the last word because I'm Chairman. So,
thank you. We'll carry on this discussion, I'm sure, beyond
today. Thanks, again, to the nominees, their family, and
friends.
Senator Kennedy. Well, Mr. Chairman, with a bold statement
like that, I think you ought to let Mike respond. I don't think
that's fair. That's a pretty----
Senator Lee. It's just not accurate.
Senator Kennedy. That's a pretty false----
Senator Lee. In no respect--you have defamed them----
Chair Durbin. Oh----
Senator Lee [continuing]. You have accused them of
committing a crime here. That it is a crime to testify falsely
under oath. They did not do that. I challenge you to find one
statement, one statement that you could defend as knowingly
false made by them, as perjurious. That's what you've done.
That's not appropriate.
Chair Durbin. I said they selectively misled. I didn't say,
whatever you just said, feloniously----
Senator Lee. From an ethical standpoint, that has the same
effect, and they did not do that.
Chair Durbin [continuing]. Without describing one another
as defamatory. This meeting stands adjourned.
[Whereupon, at 11:33 a.m., the hearing was adjourned.]
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