[Senate Hearing 118-29, Part 6]
[From the U.S. Government Publishing Office]


                                                 S. Hrg. 118-29, Part 6

              CONFIRMATION HEARING ON FEDERAL APPOINTMENTS

=======================================================================

                                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
                               __________

         Printed for the use of the Committee on the Judiciary
         

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                       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

                              ----------                              


                        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.]
    [Additional material submitted for the record follows.]

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              Additional Material Submitted for the Record

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