[Senate Hearing 119-201]
[From the U.S. Government Publishing Office]
S. Hrg. 119-201
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
----------
SEPTEMBER 3, 2025
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Serial No. J-119-36
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Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
S. Hrg. 119-201
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 3, 2025
__________
Serial No. J-119-36
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
_______
U.S. GOVERNMENT PUBLISHING OFFICE
61-890 WASHINGTON : 2026
COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois,
JOHN CORNYN, Texas Ranking Member
MICHAEL S. LEE, Utah SHELDON WHITEHOUSE, Rhode Island
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
JOSH HAWLEY, Missouri CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
JOHN KENNEDY, Louisiana MAZIE K. HIRONO, Hawaii
MARSHA BLACKBURN, Tennessee CORY A. BOOKER, New Jersey
ERIC SCHMITT, Missouri ALEX PADILLA, California
KATIE BOYD BRITT, Alabama PETER WELCH, Vermont
ASHLEY MOODY, Florida ADAM B. SCHIFF, California
Kolan Davis, Chief Counsel and Staff Director
Joe Zogby, Democratic Chief Counsel and Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Grassley, Hon. Charles E......................................... 1
Prepared statement........................................... 58
Durbin, Hon. Richard J........................................... 3
Britt, Hon. Katie Boyd........................................... 9
Coons, Hon. Christopher A........................................ 10
VISITING INTRODUCERS
McConnel, Hon. Mitch, U.S. Senator from Kentucky................. 4
Wicker, Hon. Roger, U.S. Senator from Mississippi................ 6
Hyde-Smith, Hon. Cindy, U.S. Senator from Mississippi............ 7
Tuberville, Hon. Tommy, U.S. Senator from Alabama................ 8
NOMINEES
Chamberlin, Robert P............................................. 41
Questionnaire................................................ 63
Responses to written questions............................... 124
LaCour, Edmund G. Jr............................................. 42
Questionnaire................................................ 172
Responses to written questions............................... 237
Additional materials......................................... 314
Lewis, William W................................................. 43
Questionnaire................................................ 331
Responses to written questions............................... 370
Mascott, Jennifer L.............................................. 12
Questionnaire................................................ 418
Responses to written questions............................... 509
Additional materials......................................... 572
Maxwell, James Donald II......................................... 43
Questionnaire................................................ 601
Responses to written questions............................... 681
Additional materials......................................... 728
Mooty, Harold D. III............................................. 44
Questionnaire................................................ 730
Responses to written questions............................... 758
APPENDIX
Items submitted for the record................................... 807
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
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WEDNESDAY, SEPTEMBER 3, 2025
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:15 a.m., in
Room 216, Hart Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley [presiding], Cornyn, Lee,
Tillis, Kennedy, Blackburn, Schmitt, Britt, Moody, Durbin,
Whitehouse, Klobuchar, Coons, Blumenthal, Booker, Padilla,
Welch, and Schiff.
Also present: Senators McConnell, Wicker, Hyde-Smith, and
Tuberville.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley [audio malfunction occurs]. Good morning.
I welcome everyone to today's hearing. Our first panel features
Professor Jennifer Mascott, nominated for Court of Appeals,
Third Circuit. Panel 2, we will hear from five district court
nominees, Judges Robert Chamberlin; James Maxwell for the
Northern District of Mississippi; Edmund LaCour, nominated
Northern District, Alabama; Justice William Lewis, nominated
Middle District, Alabama; Harold Mooty, nominated Northern
District, Alabama.
Before we begin, I would like to address a few matters up
front. First, I am disappointed that many highly qualified
nominees are being held up on the Senate floor. The Senate's
duty is to provide advice and consent, not manufacture
gridlock. When nominees clear this Committee, they deserve a
timely vote. Instead, we've seen well-qualified men and women
who put their lives on hold and answered the call of public
service, they're left twisting in the wind for months. That
weakens our justice system at every level. Vacant judgeships
mean heavy caseload and long delays. Vacant U.S. attorney
offices leave communities without Senate-confirmed law
enforcement leadership. That should concern everybody in this
country, and particularly in the Senate.
There was a time when nominees who cleared this Committee
were confirmed routinely, often as simply by voice vote. Now,
we see a pattern of delay and obstruct. The losers aren't
Republicans or Democrats; they are the American people waiting
for justice. It's time for the Senate to act.
Second, we have heard time and again from my Democratic
colleagues that our nominees lack independence from the
President. Well, that is a turn of events because at the
Democrats' own partisan spotlight hearing, the Senate Minority
Leader bragged that Democrats had stacked the bench with
``progressive judges.'' He didn't stop there. He celebrated
their rulings against President Trump and declared, ``Our
people are the first line of defense.'' Now think about those
words, ``our people.'' Thats' not the language of an
independent judiciary. It is the language of political
ownership. And yet, these are the same Democrats who cry foul
and actually accuse Republican nominees of being Trump judges.
The double standard is breathtaking.
And we're repeatedly hearing from Democrats that nominees
must follow all court orders. Let me be clear. Following the
rule of law means obeying lawful court orders. But we now have
lower court judges who aren't following court orders. As
Justice Neil Gorsuch put it just a few days ago, ``Lower court
judges may sometimes disagree with this court's decision, but
the're never free to defy them.'' He warned that, ``This is now
the third time in a matter of weeks this court has had to
intercede in a case squarely controlled by one of our
precedents.'' He reminded those on the Federal bench that,
``When this court issues a decision, it constitutes a precedent
that commands respect in the lower courts.''
Justice Brett Kavanaugh has made the same point: ``Members
of the judiciary have an important responsibility to get it
right, to do our hard work, to understand our role in the
constitutional democracy. We are not policymakers.''
In March, Justice Alito condemned a Federal court for an
act of ``judicial hubris and self-aggrandizement.'' When the
highest court in the land uses phrases like defy, hubris, and
self-aggrandizement to describe what is happening in our
judiciary, it tells you something has gone terribly wrong. All
of us should agree lawful Federal court orders must be
respected. That is not a Republican point or a Democrat point.
That is the bedrock of the rule of law.
It is stunning to hear Democrats accuse Republican nominees
of being Trump judges when their own leaders boast that their
nominees are ``his people.'' Judges aren't supposed to be
anybody's people. They belong to a separate branch of
Government, insulated from partisanship, with only one duty, to
follow the law, whether you like the outcome or not.
So that brings us to today's nominees, highly qualified men
and women who understand the importance of judicial
independence in our constitutional design. We will hear more
about Professor Mascott's tremendous resume in just a moment,
but let me start by acknowledging that she is well-known and
well-respected by this Committee. This Committee has called on
Professor Mascott repeatedly to testify about some of the
toughest constitutional and statutory questions. She also filed
amicus briefs on behalf of Members of this Committee in very
important cases. We trusted her judgment then, and we can trust
it now.
Professor Mascott's qualifications speak for themselves.
She clerked for two sitting Supreme Court Justices. The Supreme
Court has cited her scholarship eight times and even mentioned
her by name at oral arguments. At George Washington University
Law School, she earned a record 4.22 GPA. Her professors even
wrote to this Committee to explain that they often thought her
exam answers were better than their own answer keys. The kind
of intellect that that represents, paired with her steady
judgment, makes Professor Mascott an outstanding nominee for
the Third Circuit.
Our district court nominees are also ``well-qualified,''
and we will look forward to hearing from each of them today.
As a final point, I will mention that we will have a long
hearing today, six nominees, two panels, multiple introducers.
I will ask everyone to keep their remarks limited to 5 minutes,
allotted to keep the hearing on schedule.
Senator Durbin.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Thanks, Chairman Grassley. Welcome back to
Washington.
Chairman Grassley. You bet.
Senator Durbin. I hope the corn crop in Iowa is as good as
it is in Illinois.
Chairman Grassley. It is going to be a national record.
Senator Durbin. National record, I am not surprised, and I
am sure your farm will lead the way.
I want to address the issue which you have raised, and very
importantly raised at this hearing because I think it is time
that we discuss it openly and find a solution. I share your
interest in ending the impasse we face on the floor of the
Senate. For decades, the Senate confirmed U.S. attorneys by
voice vote or unanimous consent. All 85 of President Trump's
U.S. attorney nominees during his first administration were
approved by voice vote, all of them.
But early in the Biden administration, things changed.
Senate Republicans began a campaign of obstruction. In April
2021, Senator Cotton of Arkansas announced he would block
nominees from any State represented by a Democrat on this
Committee. Senator Cotton finally lifted his hold in December
2021, but in February 2022, he again blocked U.S. attorney
nominees for months. Talk about twisting in the wind. There is
another case which I recall of supreme twisting in the wind.
Remember when Anton Scalia died on a hunting trip? How long did
that vacancy sit there, open, unfilled? At least 10 months. The
whole last year of the Obama administration, he was unable to
fill a vacancy on the highest court in the land.
On June 23, 2023, things changed again. Then-Senator J.D.
Vance of Ohio announced he would place a blanket hold on ``all
Department of Justice nominees under Biden,'' including U.S.
attorneys, to quote--and these are his words, and I attribute
it to him on the floor--``grind the Justice Department to a
halt,'' grind the Justice Department to a halt.
On eight separate occasions in 2023 and 2024, I went to the
Senate floor to request--really to beg--for a change from
Senator Vance. Give us consent to confirm these nominees
according to the Senate tradition. Each time, my efforts were
blocked by Senator Vance or other Republican Senators on his
behalf.
Due to Republican obstruction, President Biden was only
able to fill 68 of the 93 U.S. attorney positions with Senate-
confirmed nominees. I appreciate, Mr. Chairman, that you did
not agree with Senator Vance's actions back then, and I don't
believe you do now, but we can't have one set of rules for
Republican Presidents and another for Democratic Presidents.
We also now face a Trump administration making an end run
around Senate advice-and-consent duties. Senator Coons is here
from the State of Delaware, and I am sure he will address that
in a minute. In several blue States, the Trump administration
has taken an illegal and unprecedented approach to filling U.S.
attorney vacancies with extreme candidates while making no
attempt to consult with Democratic Senators.
I learned during the first Trump administration to sit down
and work with the Trump White House. We disagreed on almost
everything. But when it came to filling judicial vacancies, we
filled every single vacancy that I was party to during his
administration. We reached an agreement. We both had to
compromise, and we did. I think that is the way it still should
work. The path forward cannot result in Republican Senators
having their preferred U.S. attorney nominees confirmed, while
Democratic Senators have outrageous picks installed in their
States in legally dubious ways.
I look forward to working with you, Mr. Chairman, and I
mean that personally, on a fair and bipartisan solution to this
problem. It has been created by both parties. We are facing it
now. Let's do something about it in a civil way, in a fair way,
and I think we can achieve that.
I will tell you, I won't go into detail on the Delaware
nominee. I will leave that to Senator Coons. But I want to
thank you for your longstanding bipartisan tradition of
requiring blue slips from Senators supporting district court
nominees from other States. I can give you specific examples
where, during the first Trump administration, Democratic
Senators did not approve any blue slips to fill any judicial
vacancies in their State. They waited until there was a
Democratic President.
I can give you another example, a very obvious example--and
I won't name names--of one State now represented on this
Judiciary Committee where the Republican Senators filled no
judicial vacancies during the Biden administration and waited
until they had an opportunity for a Republican President. It
has been done by both parties. But we have stood by the blue
slip, and I hope we will continue to.
I yield.
Chairman Grassley. Thank you. I want to now introduce
Senator McConnell, Senator Hyde-Smith, Senator Tuberville,
Senator Britt, and remarks from Senator Coons.
Senator McConnell, please proceed.
STATEMENT OF HON. MITCH McCONNELL,
A U.S. SENATOR FROM THE STATE OF KENTUCKY
Senator McConnell. Good morning, Mr. Chairman, members of
the Committee. It is my honor to be here today to introduce my
friend Jennifer Mascott.
President Trump made an excellent selection in Jenn as his
nominee for the Third Circuit Court of Appeals. I have had the
pleasure of getting to know Jenn over the years through her
work as a professor. I can tell you firsthand that Jenn has
honed a brilliant legal mind, evidenced in both her academic
credentials and distinguished public service. This nomination
provides the Senate with a prime opportunity to elevate a well-
studied constitutional scholar who understands the role of a
judge.
Before beginning her law career, Jenn graduated from the
University of Maryland with degrees in math and Government. I
am proud to say that, early in her career, she worked in a
Kentucky congressional delegation as a press assistant. I am
fond of her Kentucky connection and grateful for her service to
the Commonwealth.
As you may expect, this was just one of many roles where
Jenn excelled in serving others. After her work in Congress,
Jenn graduated from the George Washington University Law School
with the highest GPA in her class. She even made history by
breaking the record for the law school's highest graduating GPA
ever. It is no surprise that she is regarded as wicked smart
among her peers in the legal community.
Jenn built her skills during impressive clerkships with the
then-D.C. Circuit Court of Appeals Judge Brett Kavanaugh and
then-Supreme Court Justice Clarence Thomas. Her legal
foundation in text and tradition makes Jenn exceptionally well-
suited for a spot on the Federal bench.
Perhaps the most impactful aspect of Jenn's resume is her
devotion to teaching the next generation of attorneys. In her
tenure at the Scalia Law School at George Mason University and
Catholic University's Columbus School of Law, Jenn earned a
reputation for accessibility to students and robust support for
their legal journeys.
The faculty at her alma mater, GW, represented a variety of
political backgrounds, praise her demeanor, her outlook on
jurisprudence, and her stellar qualifications. Jenn's fair-
mindedness and broad knowledge of the law make her the perfect
candidate for Federal judge.
Needless to say, helping highly qualified legal
professionals reach the Federal bench has been one of the
favorite parts of my job. I have gotten to do it an awful lot.
So I can speak with a bit of experience when I say that Jenn is
exceptionally qualified for the role we are discussing. She
will interpret the law as it is written and ensure to the best
of her ability that our Founders' principle of the rule of law
will prevail.
I would like to close by recognizing Jenn's four children,
Avery, Everett, Eli, and Augustine, who I am sure are thrilled
that their mom sits before this Committee today in
consideration to be a Federal judge. Jenn, you and your family
were incredibly strong through the loss of your husband, Jeff,
in 2023. Your resilience is an inspiration to all of us. There
is no doubt he is looking down today with so much pride in his
family.
So, Mr. Chairman, thank you for allowing me today to give
my insight on this stellar nominee. I am confident that
Jennifer Mascott will serve our country well. I look forward to
her consideration and her confirmation.
Chairman Grassley. Thank you, Senator McConnell.
Now, Senator Wicker.
STATEMENT OF HON. ROGER WICKER,
A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Wicker. Thank you very much, Chairman Grassley and
Ranking Member Durbin and my distinguished colleagues on this
Committee.
Senator Hyde-Smith and I have a great honor today of
presenting two very outstanding members of our State Supreme
Court for the two vacancies of district judge in the Northern
District of Mississippi. Senator Hyde-Smith has served in the
State Senate with both of these distinguished jurists before
they went on to the bench. And, well, let me say she has known
both of them as judges and one of them as a colleague since
when she was herself a member of the State Senate.
And I will take the lead in introducing Justice Bobby
Chamberlin, and Senator Hyde-Smith will take the lead in
introducing Justice Jimmy Maxwell, but please know that we
support them both.
From years of observing the personal character of Justice
Bobby Chamberlin, I can assure this Committee that he is a
rock-solid choice and ready to assume this office. I have known
him for many years and had an opportunity to observe him in
many, many capacities. He is a graduate of the University of
Mississippi School of Law, and immediately upon graduation, he
went back and began work in the private sector. He was actually
a partner in one of the outstanding firms in DeSoto County,
Mississippi.
He has excelled in the practice of private law. He has been
a municipal court judge. He has been a city prosecutor for the
city of Horn Lake, Mississippi. He has been appointed a special
master in Chancery Court. He has worked for years as attorney
for the DeSoto County Board of Supervisors, the governing
legislative board of county Government in our State of
Mississippi. And as I said earlier, he served as State Senator
for DeSoto County for some 5 years, where indeed he did serve
with Senator Hyde-Smith as a colleague.
Then in 2005, Governor Haley Barbour thought enough of
Senator Chamberlin to appoint him as a circuit judge in
Mississippi's 17th Circuit, a position which he held for over a
decade until, in 2016, he decided to run for the position of
Supreme Court Justice. Now, in some States that is appointive,
but in our State it is elective, and it is, I think, a
testimony to Justice Chamberlin's fairness and even-handedness
that in the runoff election for that position of Supreme Court
Justice in his home county of DeSoto County, the fastest
growing county in the State of Mississippi, he received 93
percent of the vote. So I think that underscores what I have
known for a long time, that the people who know him best have
confidence in him, and they have seen him in all of these
capacities over the years, and they thought enough of him to
give him 93 percent of the hometown votes.
He is a family man. He and his wife Kim, who is herself a
dedicated public servant, they raised their son William there
in DeSoto County in Hernando and the United Methodist Church of
Hernando. Bobby is clearly ready for this role.
Again, I endorse both of these candidates, Jimmy and Bobby.
I know them by name. I know them personally. They will both
make very fine judges for the Northern District of Mississippi,
and I urge my colleagues to approve their nominations.
Thank you, and I yield back, sir.
Chairman Grassley. Senator Wicker, thank you.
Senator Hyde-Smith.
STATEMENT OF HON. CINDY HYDE-SMITH,
A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Hyde-Smith. Thank you, Chairman Grassley and
Ranking Member Durbin and the Members of this Committee, for
the opportunity to be here today to speak on behalf of my two
very special friends. I am especially grateful to President
Trump for nominating James Maxwell and Robert Chamberlin to
serve as United States district judges for the Northern
District of Mississippi. Both are highly qualified individuals
and bring honor, experience, and integrity to the Federal
bench. I congratulate them on this recognition and offer my
full support for their confirmations.
As Senator Wicker mentioned, I got to know Bobby Chamberlin
as we went into the State Senate together at the same time and
his wonderful wife Kim and their son Will and realized how
outstanding they all are.
Today, it is my privilege to introduce and speak in support
of James Maxwell. He has long served the people of Mississippi
with a distinction as a man of outstanding character and deep
legal experience. Justice Maxwell resides in Oxford,
Mississippi, home to the University of Mississippi, where he
earned both his undergraduate and law degrees. His legal career
reflects a steady rise through increasingly demanding roles,
always defined by professionalism and dedication to the rule of
law.
From 2002 to 2009, Justice Maxwell served as an assistant
United States attorney in the Criminal Division, prosecuting a
wide array of serious cases, from public corruption and white-
collar crimes to major drug trafficking, gang activity, and
violent offenses. His work helped make communities safer and
underscored his commitment to justice.
In 2009, James was appointed to the Mississippi Court of
Appeals, where he served until 2015. There, he worked on a wide
variety of civil and criminal appeals and built a strong
reputation for being fair, thorough, and a sharp legal mind.
Since 2016, Justice Maxwell has served on the Mississippi
Supreme Court. In that esteemed role, he has reviewed thousands
of cases and authored more than 500 majority opinions. This
extraordinary body of work demonstrates both his intellect and
his dedication to careful, principled jurisprudence.
Altogether, his 16 years on the State's two highest courts,
combined with his earlier Federal prosecutorial experience,
make him exceptionally well-prepared to serve on the Federal
bench.
Beyond the courtroom, Justice Maxwell has been an engaged
leader in the Mississippi Bar Association and the State
Prosecutors Association. And while his professional
accomplishments are significant, those who know him best also
speak of his humility, integrity, and faithfulness to both law
and his community.
I would also like to recognize his wife, Mindy, who is here
today in support. Her presence is a reminder of the family and
community that stands behind Jimmy and the values that shape
his service.
In closing, I have full confidence in Justice Maxwell's
qualifications, character, and commitment to justice. He will
be a tremendous asset to the Northern District of Mississippi
and to our Federal judiciary more broadly. I look forward to
working with this Committee and with Leader Thune to ensure a
swift and successful confirmation of both James Maxwell and
Robert Chamberlin to serve in the Northern District of
Mississippi.
Thank you so much.
Chairman Grassley. Thank you, Senator Hyde-Smith.
Now, Senator Tuberville.
STATEMENT OF HON. TOMMY TUBERVILLE,
A U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Tuberville. Thank you, Chairman Grassley and the
Committee, for holding this hearing. I want to begin by
thanking President Trump for selecting these exceptional
candidates. I really enjoyed working with Senator Britt on this
important task.
We need our justice system to focus on upholding the
Constitution, not pushing an agenda, and I am confident that
these three gentlemen will respect the rule of law and will be
impartial in all their interactions on the bench. It is my
honor and privilege to introduce these three individuals who
have been nominated to serve as Federal district court judges
in the great State of Alabama.
Number one, Edmund LaCour for the Northern District. Edmund
is currently the solicitor general of the State of Alabama.
Before assuming this role, he served as deputy solicitor
general. Prior to that, he worked in private practice here in
Washington, DC. Edmund was previously nominated to be the U.S.
district judge by President Trump at the end of his first
administration, but this nomination was later withdrawn by
President Biden. A native of Dothan, Alabama, Edmund attended
Birmingham Southern College for an undergraduate degree and
Yale Law School for his J.D.
Our second nominee, Hal Mooty for the Northern District of
Alabama, Hal Mooty is a partner at Bradley Arant Boult Cummings
LLP in Huntsville, Alabama, specializing in business and
commercial litigation. He has served as the president of the
Alabama Defense Lawyers Association's Young Lawyers Section and
previously served on the Young Lawyers Executive Committee to
the Alabama State Bar. Hal is originally from Montgomery,
Alabama, and he went to both undergraduate and law school at
the University of Alabama.
Our third nominee is Mr. Bill Lewis for the Middle
District. Bill Lewis is a justice on the Alabama Supreme Court.
Prior to being nominated to this role, he served as a judge on
the Alabama Court of Appeals, and earlier, he was the presiding
circuit judge on the 19th Judicial Circuit. Before his judicial
service began, Bill was in private practice in Wetumpka,
Alabama. He is a lifelong Alabama resident. Having grown up in
Wetumpka, Bill attended the University of the South for his
undergraduate degree and Cumberland Law School in Birmingham
for his J.D.
Welcome to all these nominees and their families, which is
quite a few, by the way. So thank you to the Committee for this
opportunity, and I urge swift confirmation of these outstanding
nominees.
Thank you, Mr. Chairman.
Chairman Grassley. Thank you, Senator Tuberville.
Now, Senator Britt.
OPENING STATEMENT OF HON. KATIE BOYD BRITT,
A U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Britt. Thank you, Chair Grassley, Ranking Member
Durbin, for the opportunity to introduce these outstanding
nominees.
Today is a great day, not only for the State of Alabama,
but for our Nation, to get to see these fine men in front of
us. I want to thank President Trump for his exceptional
leadership in nominating each of these individuals, and I want
to thank Senator Tuberville for us being able to work hand in
glove to make this happen and move these to the front of this
Committee.
I want to welcome Justice Bill Lewis, Hal Mooty, and Edmund
LaCour and their friends and family who are here and with them
today. We are so proud to have each and every one of you with
us.
Before us are three nominees for Federal judgeships in our
State who have superb qualifications and a devotion to the
Constitution and the rule of law. I am thrilled that President
Trump has nominated them to serve in the judiciary and am
looking forward to their swift confirmation.
While each of them will have an opportunity to introduce
themselves, I would like to take a minute to highlight some of
their accolades. Justice Bill Lewis has served as a judge in
Alabama's judicial system since 2016 and is currently an
associate justice of the Alabama Supreme Court. Prior to that,
he served as a circuit judge for Alabama's 19th Judicial
Circuit and a judge on Alabama's Court of Civil Appeals. He has
worked as both a prosecutor and a defense attorney and was in
private practice for approximately 10 years before becoming a
judge. He has also served our State in other ways, including as
a member of the University of South Alabama Board of Trustees.
As a graduate of the University of South Alabama and the
University of the South and Cumberland School of Law, he has
received numerous awards and honors and has served with
distinction throughout his career. Born and raised in the River
Region, this is the place that my children call home, and I
have an opportunity to reside. I can say that Justice Lewis has
unquestionable character. He is a pillar of our community. His
story and his grit inspire all who know him, and I cannot wait
for him to be sitting on the bench.
Second is Hal Mooty. Hal is a partner at one of our State's
preeminent law firms, Bradley Arant Boult Cummings. He has an
outstanding record of representing his clients in commercial
litigation across our great Nation, and he has been named as
one of the best lawyers in America for commercial litigation.
Hal has been an active member of the Huntsville community,
having served as a board member and board president of the
Crisis Center of North Alabama, the Development Council of
Huntsville Hospital, the Committee for the Future for the
Children's Hospital of Alabama, and as part of the Madison
County Volunteer Lawyers Program. Every person, every part of
our State is seen by Hal, and he has a relentless pursuit to
make sure that they are fought for.
As a graduate of the University of Alabama for both
undergrad and law school, Hal has, throughout his career,
consistently demonstrated the qualities that are essential to
serving as a member of the Federal judiciary. Having known Hal
for 22 years myself, I can tell you there is no one else who
has the focus. It is unmatched. He has a relentless pursuit of
excellence, and he has a deep sense of justice.
Finally, Edmund LaCour currently serves as the Solicitor
General of the State of Alabama, a position he has held since
2019. A graduate of Birmingham Southern College and Yale Law
School, his legal credentials are unquestioned. As solicitor
general of Alabama, he has represented the State in a whole
host of litigation and Federal court and has been admitted to
practice before every circuit court of appeals in the United
States, as well as the Supreme Court. As a lawyer, he has filed
more than 100 briefs before the Supreme Court and has argued
three cases before the Court. Prior to becoming solicitor
general, he was in private practice at firms including Kirkland
& Ellis and Baker Botts and he has also served as a clerk to
Judge Bill Pryor on the 11th Circuit. As a fellow native of the
Wiregrass, obviously, the entire region is proud to see you
serve.
I believe that all three of these nominees will apply our
laws fairly, uphold the Constitution, and serve with
distinction on the Federal courts. I am proud to support their
nominations and thank them for their willingness to serve and
look forward to their swift confirmations.
Thank you, Mr. Chair.
Chairman Grassley. Thank you, Senator. We aren't going to
ask you any questions, so if you want to go, please leave.
[Laughter.]
Chairman Grassley. Senator Coons, you wanted 3 minutes for
some remarks.
Senator Coons. Thank you.
Chairman Grassley. And maybe I will take a couple minutes
after you get done for rebuttal to you.
OPENING STATEMENT OF HON. CHRISTOPHER A. COONS,
A U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Coons. Well, thank you, Mr. Chairman. Thank you for
allowing me to speak to the nomination of Ms. Mascott to serve
in the Third Circuit.
First, if I might, Professor Mascott, congratulations to
you and to your family. I mentioned in our meeting yesterday, I
have had several personal friends reach out to me to sing your
praises as a wife, a mother, a neighbor, a friend, a colleague.
And I too want to offer my condolences on the passing of your
husband, Jeff. I personally know how devastating pancreatic
cancer is.
I want to thank you for your service at the Department of
Justice and the White House Counsel's Office and your
willingness to continue to serve. My question, as I posed
yesterday, though, is why that service should be in the
Delaware seat on the Third Circuit. You were nominated by
President Trump to serve as general counsel of the Department
of Education, a position that fits well with your
administrative law and constitutional regulatory background.
That nomination was just withdrawn yesterday. Why not serve
there? You could serve on the D.C. Circuit, which handles lots
of administrative and constitutional cases, many more than the
Third Circuit. Why not serve there?
You have been nominated instead to sit on the Third Circuit
in the Delaware seat, long held by Judge Kent Jordan. You are
not a member of the Delaware Bar. You have never appeared or
practiced in the Delaware State or Federal courts. As best as I
could tell, your only connection to Delaware is a vacation home
in Bethany Beach.
That is in sharp contrast to the jurist you have been
nominated to replace. Judge Jordan clerked in Delaware,
practiced in Delaware, worked in our U.S. Attorney's Office,
served as a district court judge in Delaware. You weren't even
admitted to practice in the Third Circuit until May, just 4
days after the White House mentioned you were potentially under
consideration.
This is not your fault. This is an issue between me and the
White House on whether they were ever actually working in good
faith with Senator Blunt Rochester and me. We interviewed and
recommended several conservative Delawareans, members of our
bench and bar. I guess they just were not conservative enough.
Apparently, there is not a single member of the Delaware bench
or bar the White House thought was good enough because they
have instead nominated a law professor from Washington.
Ms. Mascott, I appreciated our conversation yesterday when
we met for the first time, but your lack of practical legal
experience and your extreme views on Presidential power concern
me gravely. You are an academic, an advocate, but you have not
practiced torts or bankruptcy, criminal law, corporate law, and
yet you will grade the work of Delaware's district and
bankruptcy judges.
Last, in a moment when there is profound tension in our
political system and our legal system about the boundaries
between Articles I, II, and III of our Constitution, just a few
months ago, you said the Supreme Court's decision in Humphrey's
Executor should be struck down. Humphrey's Executor has been
settled law for 90 years and is in many ways the foundation of
the boundaries between executive power and the work of this
body. Now you will testify, I expect, that I can count on you
to apply fairly what is left of that landmark precedent.
I will close. I hope you come to understand the unique and
important the welcoming and supportive role of the legal
community in my State, a place you do not know but have now
raised your hand to serve. I welcome the chance to question you
today, but I regret to inform you I will oppose your
nomination.
Thank you, Mr. Chairman.
Chairman Grassley. I am going to put most of my statement
in the record, but I just want to read some names that are
precedent for what you talked about, Professor Mascott. We got
Katzmann, New York, 2nd Circuit, Neil Gorsuch, obviously, when
he was on the 10th Circuit; Judge Bybee, got both of Nevada--
got both Senator Reid and Senator Ensign to return the blue
slip for them. Allison Rushing is another example. Judge Julie
Rikelman, Boston seat on the First Circuit, she never practiced
in Massachusetts, but Senators Warren and Markey backed her
anyway and the Senate confirmed her. So those are some examples
that I am going to put in the record.
But there is a famous memorable speech by Senator Tillis
begging the Committee Democrats to respect his objection to
circuit nominee Ryan Park and warn that the shoe would be on
the other foot, and this is what Senator Tillis said: ``I am
wondering what Thom Tillis needs to show up in the Trump
administration, the Thom Tillis that was here the last time who
tried to work with you all on some judges, or the Thom Tillis
that reflectively votes no. I will tell you the same thing next
year when the roles are reversed. You are either going to make
my job harder by doing the right thing and respecting your
colleagues today, or you are going to make my job easier
because I am going to go right down the line with the
administration.''
So that's the end of that now. We are ready for the new
nominee. Professor, would you please come to the table but
don't sit down right away because I would like to swear.
[Witness is sworn in.]
Chairman Grassley. Thank you. Now, you can make your
opening statement and introduce anybody that you want to
introduce who is here or not here in support of you.
STATEMENT OF JENNIFER L. MASCOTT, NOMINEE TO SERVE AS UNITED
STATES CIRCUIT JUDGE FOR THE THIRD CIRCUIT
Professor Mascott. Thank you, Mr. Chairman.
Chairman Grassley. Please push the red button.
Professor Mascott. Yes. Thank you, Mr. Chairman, and thank
you to the Committee for having me here today. I want to begin
by thanking President Trump for the honor of his nomination to
a seat on the U.S. Court of Appeals for the Third Circuit and
for the opportunity of a lifetime to serve as a lawyer again
now in the second Trump administration.
I also want to thank the many mentors like the judges for
whom I clerked, Justice Thomas and Kavanaugh, from whom I have
learned so much. Thank you to Senator McConnell for his warm
introduction. I'm very grateful earlier in my career for the
chance to serve as a staffer on the Senate and House sides of
the Hill and during part of that time period for a member of
the Kentucky delegation where Terry Carmack of Senator
McConnell's office was my chief of staff.
Before testifying, I also want to thank members of my
family and longtime friends and colleagues who are here and
introduce my family. But before that, I want to reflect on
several key figures who are not here. My parents, who had
children quite a bit later in life, they were wonderful people
and made me so much of who I am today. My dad was a minister
and helped raise funds for a number of international nonprofit
religious organizations, both in Africa and India, and through
those efforts introduced us to people from around the world. My
mom had been a high school English teacher, and before they had
children of their own, they helped raise foster children.
They taught the value of hard work, excellence,
determination, and a love of learning, and they esteemed public
service, helping to develop a deep appreciation and respect for
the freedoms we have in this amazing country we're all blessed
to call home.
And then my husband, Jeff, he passed away from pancreatic
cancer about 2 years ago. He was clever, entrepreneurial, and
devoted to his family and his God. He became a young leader in
our church. He was a great man and father, and his piercing
affection taught me and our children a bit of what it means to
be adored and deeply known.
We were young. After I finished high school at 16, we met
in college and were married soon after we finished school. We
both at that time worked for this body, Congress, on the House
side and sold one of our cars to pay the security deposit for
our first apartment on the Hill. And then with ingenuity and
determination, he brought us to where we are today.
And here with me are our four children, courageous, kind,
compassionate, strong, and so much fun.
And my parents-in-law, Tom and Jenny, career-long educators
in the Montgomery and Howard County public school systems who
essentially have become father and mother to me. My brother-in-
law, Brent Mascott, an elementary school principal, plans to be
here shortly after he finishes meeting with the school
superintendent of the system to start the school year; and my
sister-in-law, Amy Mascott, a Blue Hen, graduate of the
University of Delaware, also a public school educator, she
generously took the time to attend today, along with a number
of other friends and colleagues.
It would be an unbelievable honor to enter judicial service
and a gift of the kind of opportunity that in many ways can
happen only in the kind of system we have here in America that
provides immense opportunity for education and service,
betterment, and selection of one's own profession.
Mine was not a family of lawyers. One grandmother, one of
eight, was the first daughter in her family to finish high
school, as I understand it. One grandfather stayed in school
just through the eighth grade. The other was orphaned in his
teens, joined the Army soon thereafter, and eventually becoming
a short-lived professional boxer and then Baptist minister. A
number of cousins have served in local law enforcement. And I
would value the opportunity to continue that tradition of
public and community service and preservation of the rule of
law if this body were to vote to confirm me.
Thank you, and I look forward to your questions.
Chairman Grassley. I thought you were going to introduce
people that were here.
Professor Mascott. Well, my in-laws, Tom and Jenny Mascott,
and my children. Thank you, Chairman.
Chairman Grassley. You bet. Thank you.
Professor, you had a rare opportunity to clerk for not one,
but two Justices on the Supreme Court, Justice Thomas and then
Judge Gorsuch on the 10th Circuit. What did you take away from
these clerkships about the proper role of a judge?
Professor Mascott. Well, Chairman, thank you. I am deeply
honored to have been able to serve both alongside and for and
later teach with Justice Thomas and Justice Kavanaugh when he
was on the D.C. Circuit, and they both brought a lot of
humility to their service on the Federal bench and
understanding of the limited role in our system of a Federal
judge to decide concrete cases and controversies, fairly apply
the principles of law, look deeply at the public understanding
of text in the Constitution and statutes, and apply the law
with justice and fairness and humility without favor to any
particular kind of party.
Chairman Grassley. You directed litigation clinics at two
law schools where students worked on appellate briefs before
the Supreme Court and Federal courts of appeal. What have you
learned from mentoring students in these real-world cases? And
how will that experience shape your approach to complex
appellate cases when you are on the bench?
Professor Mascott. Well, thank you, Senator. It was an
immense honor to be able to teach students, first as an adjunct
at my alma mater, GW, and later at Scalia Law School and
Catholic. And I was so happy to come in this morning and see
actually several former students working here, staffers present
right now at the hearing working for you all and continuing
just a great tradition of service.
With the work particularly in founding the Student
Litigation Clinics, focused on issues of separation of powers,
those were great opportunities to help students get practical
experience writing briefs, looking at important constitutional
issues. The clinics had the offer--the honor, as I believe you
mentioned earlier in your opening remarks, at times of even
filing amicus briefs in the Supreme Court on behalf of Members
of this Committee, sometimes even for as many as 100 Members of
Congress in important cases dealing with student loan payments,
the meaning and significance of the now reversed Chevron
doctrine, and other important issues cutting across all three
branches of Government, the important role of freedom and
limited Government in this country. That is a tradition I know
this Committee is working every day to try to uphold as well.
Chairman Grassley. You have been before Congress many times
on topics ranging from executive privilege to the role of
Federal courts and administrative law. How has that experience
shaped your perspective on the judiciary's role in our system
of separated powers?
Professor Mascott. Well, Senator, I was really grateful for
the opportunity here in this Committee and also on the House
Judiciary Committee, as you mentioned, to be able to testify a
number of times on the role of Federal courts in the
confirmation hearings for two Supreme Court Justices on issues
of regulatory law and executive privilege. And with the
Committee's often exacting questions, it was really an
opportunity to see how this body unpacks legal questions and is
dedicated to its role in our system which, of course, in
Article I is really preeminent with policymaking and
establishing rule of law, preserving freedom.
And I was really grateful the Committee brought me in to
unpack issues not only about how the three branches at the
Federal level interact but also the way in which the Federal
Government's designedly limited role preserves freedom of the
States to be able to govern people and preserves freedom of
families and religious institutions and folks in local
communities.
Chairman Grassley. I referred in my opening statement about
how your scholarship has been cited by the Supreme Court in
more than one opinion, and you have even been referenced by
name during oral arguments. How has your experience as a
professor and scholar influenced the way you would approach
precedent as a judge?
Professor Mascott. Well, the opportunity as a professor to
study and teach and write on the Constitution would be
foundational because it has really increased even more my love
and respect for the document for our freedoms and provided a
lot of opportunity to dig deep in the history of understanding
the meaning of the text and phrases in the Constitution and how
the Founders, in drafting and then ratifying among the State
ratification conventions that text, were focused on preserving
liberty and freedom and wrestling with accountability for
governmental actors and focusing on the preeminence of
elections in selecting policymakers.
Chairman Grassley. Senator Durbin.
Senator Durbin. Thanks, Mr. Chairman.
Professor, welcome back.
Professor Mascott. Thank you.
Senator Durbin. I am glad you are here today, and
congratulations on your nomination.
Professor Mascott. Thank you.
Senator Durbin. You clerked for Justice Thomas on the
Supreme Court. You also testified before this Committee against
the Supreme Court ethics reform legislation at a hearing in
June 2023. That hearing followed investigative reporting that
revealed Justice Clarence Thomas received and failed to
disclose gifts worth millions of dollars with some estimates
placing the total value at over $4 million. This was confirmed
by exhaustive Committee investigation and subpoenas that my
staff and I conducted when I was Chairman of the Committee.
So I have several questions I would like to ask you first.
If you are confirmed to serve on the Third Circuit, will you
commit to abiding by all the rules and regulations governing
judicial ethics, including Federal statutes and the code of
conduct for U.S. judges?
Professor Mascott. Oh, Senator, absolutely. I would be
committed to all ethics requirements, yes, Senator.
Senator Durbin. I am going to assume unless you say
otherwise that you had no personal knowledge of Clarence
Thomas' receiving any gifts.
Professor Mascott. Senator, that is correct. I was his law
clerk, yes.
Senator Durbin. All right. You came before this Committee
to testify on an effort we are making to try to establish a
code of ethics for the highest court in the land. We know that
there is a code of ethics that applies to Federal judges other
than the Supreme Court and how it is enforced, and we are
trying to write something that would apply to Supreme Court
Justice Thomas or any others who have millions of dollars'
worth of undisclosed gifts. Since you came and testified
against our legislation, I will ask you a very general
question. How do you believe the Supreme Court should be
governed when it comes to ethics?
Professor Mascott. Well, so, Senator, I was grateful to
have the opportunity to come here back at that time during a
challenging time. Just on your earlier questions, I just need
to say again how honored I was to serve as a law clerk for
Justice Thomas and have the deepest respect for him and his
character and his integrity.
I appreciate your question about Senator Whitehouse's
proposed legislation at that time. In my recollection of my
testimony on that act--and I think I may have been the only
Republican witness in the Committee testifying that day; I
could be wrong about that--but that we were talking about the
various constitutional or not aspects of the bill and that my
testimony focused not really on policy questions of ethics but
some of the particulars in the act like the lower court panels
sitting to evaluate recusal decisions of Supreme Court Justices
and that I was pointing out that in our system that has the
Supreme Court vested with judicial authority at the top of
Article III, that there were real constitutional questions
about allowing inferior judges, as referred to in the
Constitution, inferior courts, to sit in judgment really of any
decisions of the Supreme Court and that there were also a lot
of open questions in our system about the way that ethics
decisions should be adjudicated, but I do not recall commenting
on the policy of the Justices' decision to file recusals.
And again, my understanding is that even though it is not
covered statutorily in quite the same way as lower courts at
the Supreme Court by its own statements and commitments, it
upholds the statutory recusal requirements in exactly the same
way and with the same rigor that lower courts do.
Senator Durbin. So when it comes to constitutional
compliance, do you believe that receiving millions of dollars
in gifts and not disclosing them is in the best interest of our
Constitution?
Professor Mascott. Well, Senator, I--again--and I don't
mean to comment first on the premise of the question. My
recollection is that all reporting requirements there were
dealt with and addressed. And the constitutional question,
again, I think the provisions in the bill as I recall that were
the focus of my testimony are about how these types of
requirements are to be enforced. And the Supreme Court, as I
recall, I think, a statement by Chief Justice Roberts at the
time, again, emphasized how devoted the Supreme Court and every
Justice is to complying with ethics requirements.
The main constitutional and legal questions before the
Committee that day were which actors in our system are
responsible for making sure those agreements are followed and
questions about how two co-equal branches are to interact and
how lower court judges interact with superior court judges.
Senator Durbin. I think the reputation of the Supreme Court
is important enough for us to be willing to consider new ideas
on enforcement. Current rules do not work. There are too many
gifts that go undisclosed to the Justices serving in the
highest court of land. The Supreme Court of the United States,
the highest court in the land, should not have the lowest
standard of ethics.
And when you testified, and as you mentioned, the only one
who testified against this bill for reform, it left a lasting
impression with me. I respect very much your education and what
you have achieved in your life. It is remarkable. But this is
one question that still remains unanswered as far as I am
concerned.
Thank you very much.
Professor Mascott. Thank you, Senator.
Senator Kennedy. Mr. Chairman, point of order. Could we ask
your team to either turn up the air conditioning or build a
fire, one or the other?
Chairman Grassley. I am sure somebody heard the request.
Senator Lee.
Senator Lee. Thank you very much.
Ms. Mascott, it is a pleasure to have you here. We are
grateful to have you here.
On this last point, I do think it is important to remember
that separation of powers matters. We are talking here about a
coordinate branch of Government. The highest court in the land,
the Supreme Court of the United States, unlike the lower courts
is not a creation of the Congress. We determine its size, but
we can't relegate that into nonexistence, as we theoretically
could do with any of the inferior courts.
And so when we are talking about the apex of a coordinate
branch of Government, the question is not whether to have those
standards in place. The question is who sets them and who does
not, and that is not a question of whether you want rules to
apply. They do have rules, but they are rules that they
themselves have adopted consistent with existing Federal law.
Ms. Mascott, you have been nominated to the U.S. Court of
Appeals for the Third Circuit, a court that is near and dear to
my heart as I served as a law clerk back during the William
Howard Taft administration----
[Laughter.]
Senator Lee [continuing]. And enjoyed that immensely. As
you approach this role, tell me how you would go about
interpreting text, statutory or constitutional, as that is
arguably the single most distinguishing feature of the judicial
role, particularly the judicial appellate role.
Professor Mascott. Yes, Senator. So in looking at statutory
and constitutional text, I would be looking for the plain
meaning or the public understanding of the text that is before
the Court in that particular case. And, as this body knows,
that often--it always includes starting with the text itself,
not just the text of the word in isolation but understanding
whether the phrase is a legal term of art, looking to the
surrounding provisions, looking to how the word is used in
other legislation enacted at the same time.
But another important point is the timing of the meaning of
the phrase would, of course, be relevant based on the time the
document became law, so for a statute, at the time it was
enacted; and for the Constitution, at the time it was ratified
by State conventions.
And if there is still, you know, question to get
background, you know, other times people will use the evidence
of outside sources to understand what the common understanding
or plain understanding of a text would have been. So in my work
the Stanford Law Review article is probably the most emblematic
of my deep look at a constitutional phrase.
I also looked at dictionaries at the time of ratification
and used actually a technique that was coming into use at the
time called corpus linguistics put forward by Brigham Young
University with its data bases to look at thousands of uses in
ordinary or legal language about how a word is used to further
understand its meaning. And the importance is to know exactly
what definition of meaning was given legal impact by the folks
voting on the text at the time, which is why one wants to
understand not only how the decisionmakers themselves but the
public more broadly understood it because it is not about the
individual mind of the legislature but the objective meaning of
the text and the document.
Senator Lee. Fantastic. I can't wait to tell my brother
about your plug for corpus linguistics, especially out of BYU.
[Laughter.]
Senator Lee. Yes, and I think that is important when we
talk about that approach looking at the original public meaning
at the time of passage if a statute or at the time of
ratification if it is the Constitution or a subsequent
amendment thereto is important and that does matter. In fact,
it is exactly what matters.
Now, insofar as the meaning of the text is plain and clear
on its face, it is going to be an easier task. Where there are
ambiguities, that is where lawyers earn their fee, and that is
where judges do their best and hardest work. Of those things
where it is not plain, what are some of the things that you
would look to to resolve ambiguities? And in particular, to
what extent is it helpful to gain insight into statements
perhaps reflecting a particular subjective viewpoint of a
particular lawmaker on something? And by that, I mean floor
statements, statements made in debate, and so forth.
Professor Mascott. So Senator, if there was a text where
the meaning wasn't originally clear--and as an attorney in the
Office of Legal Counsel at the Department of Justice, this was
the kind of question we often received. So I--in my experience,
it should take a lot to reach the conclusion that text is truly
ambiguous. A lot of hard work should be done looking at that
phrase and surrounding phrases in advance and, as I mentioned
before, dictionaries and other sources.
You mentioned the particular statements of lawmakers, so
what we sometimes call legislative history. So if it is a
collection of statements looked at as one piece of evidence,
perhaps okay, but there would never be an instance where the
intent of one individual person would have legal impact on the
meaning of a text because the Constitution in Article I,
Section 7 made this whole body through bicameralism and
presentment and the President responsible for enacting text
institutionally and not just one by one.
Senator Lee. So in other words, even if you could take one
of those statements, and even insofar as one of those
statements evidenced a subjective intent on the part of that
lawmaker, that isn't relevant, regardless of whether they
subjectively believed that? Unless that was somehow consistent
with the original public understanding of it, that really has
no bearing?
Professor Mascott. Correct, Senator, yes.
Senator Lee. Yep, thank you. I see my time has expired.
Thanks, Mr. Chairman.
Chairman Grassley. Senator Coons.
Senator Coons. Thank you.
Professor, are you a member of the Delaware Bar?
Professor Mascott. Senator, I am a member of the Virginia
and Maryland Bars as a long-time public servant here in this
area.
Senator Coons. Have you ever practiced law in Delaware?
Professor Mascott. Senator, I am admitted to the Third
Circuit. I practice law, as I mentioned, as a public servant
mostly here in Government.
Senator Coons. Have you ever practiced law in Delaware?
Professor Mascott. Senator, I have not. I practice law in
this area.
Senator Coons. Have you made any argument in the Federal or
State courts of Delaware?
Professor Mascott. Senator, again, as a public servant----
Senator Coons. You can treat these as yes and no questions,
please, Professor. Have you ever filed a brief in a Delaware
court?
Professor Mascott. Senator, I filed a brief in the Third
Circuit. As your questions point out, as the President's
nominee to the Third Circuit, I have been nominated to a seat
that by custom now is within Delaware and would look forward,
if this body were to confirm me, in joining the legal community
specifically in Delaware. I would plan to have chambers in
Wilmington. But right now, my practice has been as an academic
and here in Washington, DC, as a public servant.
Senator Coons. So your record of scholarship and public
commentary advocacy is quite lengthy, but I am concerned that
your actual practice is quite short. How many depositions have
you taken or defended?
Professor Mascott. So, Senator, as principally an appellate
lawyer and----
Senator Coons. I think the answer is none. How many motions
in limine have you argued?
Professor Mascott. Senator, my practice has been mostly at
the appellate level, so I have filed dozens of appellate
briefs. I have not argued motions in limine. I did argue to
verdict, however, as the record shows, a district court case
defending Title IX for the Department of Education, and so have
argued in both district and appellate courts on behalf of the
Federal Government.
Senator Coons. My point is simply that the Third Circuit's
docket is substantially made up of criminal cases, bankruptcy
cases, patent cases, very little in terms of constitutional
administrative law, which is your specialty. And you have been
nominated to essentially rule on appeals from the district
courts, in particular the district courts of Delaware. And this
long, long tradition of States getting to choose a member of
their bench and their bar to go to a circuit is so that the
values and the tradition, the legal concerns of that State are
most respected.
Let me move to your substantive work because my core
concern is that our Framers drafted a Constitution in order to
constrain powers, the separation of powers, which you have
taught. They put Congress as the Article I branch, not the
President because they were principally concerned about
constraining an overreaching executive.
In a brief that you filed challenging President Biden's
efforts to cancel student debt, you wrote, ``The power of the
purse is one of Congress' most potent checks on the executive
branch.'' I asked you yesterday if you had ever advised the
White House on impoundment issues, whether President Trump
could refuse to spend money Congress has appropriated, and you
said that you had. Did you advise the White House President
Trump can refuse to spend money legally appropriated by this
body?
Professor Mascott. So, Senator, I appreciate your question
reference to Article I and appropriation. I know we talked
about that a bit yesterday. And also, you know, having clerked
for Judge Kavanaugh, he, as a former executive branch lawyer,
also pointed out the President's role in having to sign off or
veto legislation.
The particular question you talked about, I believe--I
recall in our discussion that I had mentioned that I had not
been working on that issue recently, that I was asked a
discreet question actually prior to the start of the
administration on the constitutional question related to that
topic. But beyond that, really sitting here today as a judicial
nominee with some of these issues playing out in the courts as
we speak, I cannot further comment on the question.
Senator Coons. You publicly stated in March of this year
that the Supreme Court's 90-year-old Humphrey's Executor case
was wrongly decided. Do you stand by that statement?
Professor Mascott. So, Senator, as an academic--and I have
taught in other forums--I strongly stand by my past work.
Sitting here as a judicial nominee, what I also mentioned
yesterday a number of times was my commitment as a lower court
judge to fully and completely applying Supreme Court precedence
and also the case that you mentioned, Humphrey's Executor, in
the Supreme Court's own writings that has referred to it in the
past decade, 10 or 15 years, as a narrow exception to the
broader principle that the President, vested with the executive
power, needs to supervise the executive branch, and I would
apply all those principles fully.
Senator Coons. You were just in an exchange with Senator
Lee where you talked about the importance of hewing toward the
text. I think the Federal Trade Commission Act of 1914 could
not have been clearer. In fact, the Humphrey's Executor
decision was a unanimous decision by the Supreme Court, and it
has been respected, not as a narrow exception, but as frankly
the foundation of the boundary between the President and dozens
of critical regulatory agencies. It prevents a President from
whimsically removing based on partisan political or policy
differences, something FDR was trying to do to a member of the
FTC. Yesterday, the D.C. Circuit reaffirmed the holding of
Humphrey's Executor. Why should we have confidence that we can
count on you to uphold this 90-year precedent that just months
ago you have argued was wrongly decided? Will you recuse
yourself from cases applying that precedent, given your
advocacy for its reversal?
Professor Mascott. So, Senator, if I were to have the honor
of this body to confirm me, I would follow all statutory
recusal requirements, and I understand one of those
requirements to be to recuse from particular matters on which I
would have worked and also cases where I might have a financial
interest at stake, and of course I would fully comply with all
statutory recusal requirements.
Senator Coons. Last question. Do you think Congress can
constitutionally restrict the removal of any official in the
executive branch on any basis, whether it is for inefficiency
or neglect of duty or malfeasance because, as is currently
being hotly contested, there are critical boundaries between
Article I and Article II powers, and you have been a relentless
activist on behalf of expanding the scope of executive power.
Is there any way Congress can restrict the removal of any
executive branch official?
Professor Mascott. Senator, as you point out with it being
contested, the contours of the constitutional power of Congress
to constrain the President's supervisory power or to fashion
characteristics on the contours of the institution of offices
is currently being contested in courts, and so I am not going
to be able to speak to the absolute merits on that question.
We did discuss Congress' role in fashioning and creating
offices. We discussed the President's power to supervise the
executive branch. And as I mentioned, if I were to have the
honor to be confirmed, I would fully and faithfully apply the
text and structure of the Constitution and decisions by the
Supreme Court, of which I would be fully bound. Thank you.
Senator Coons. Ms. Mascott, you come from a great family.
You have been a fierce, determined, and capable professor. I
appreciate our conversation yesterday and your answers to my
questions today. Thank you.
Professor Mascott. Thank you, Senator.
Senator Britt [presiding]. Senator Kennedy.
Senator Kennedy. Professor, congratulations. I believe you
testified that you think the Constitution should be interpreted
according to its original public meaning. Is that right?
Professor Mascott. Yes, Senator.
Senator Kennedy. What does original public meaning mean?
Professor Mascott. Yes, Senator. So the original part of
that phrase refers to the fact that when we look at
interpreting a text, we want to interpret it at the time it
was----
Senator Kennedy. Professor, look me in the eye and just
answer my question. What does original public meaning mean?
Professor Mascott. It means the meaning of the text as it
was understood by the public at the time it became law.
Senator Kennedy. Okay. So you think Brown v. Board of
Education was incorrectly decided?
Professor Mascott. Well, Senator, I think Brown v. Board of
Education was correctly decided. Scholars who have looked at
the original meaning of phrases at that time and their
reasoning in that case sometimes----
Senator Kennedy. Well, how many----
Professor Mascott [continuing]. Question the reasoning of
the case.
Senator Kennedy. How many people in the United States of
America at the time the Constitution was drafted do you think
supported racial integration of schools? You think that was a
majority view, do you?
Professor Mascott. Well, Senator----
Senator Kennedy. Do you----
Professor Mascott [continuing]. At the time----
Senator Kennedy. But first, Professor, do you think that
was a majority view? Do you think most Americans at the time
the Constitution was drafted supported integration of public
schools, racial integration?
Professor Mascott. Well, Senator, I don't know as a
sociological matter what percentage of people thought what at
that time. I should point out that when we got to Brown v.
Board of Education, of course, there had been several
fundamental amendments to the----
Senator Kennedy. But isn't that inconsistent with your
statement that you have to interpret it according to original
public meaning?
Professor Mascott. Well, what about the 14th Amendment and
the 13th Amendment and the 15th Amendment? So original public
meaning would mean that those----
Senator Kennedy. Well, what about them?
Professor Mascott. Well, that would mean we would interpret
those amendments and those protections with the understanding
of the text and structure at the time those amendments were
ratified, which is different, of course, in the 19th century--
--
Senator Kennedy. Let's go back to Brown v. Board. Look, I
think Brown v. Board was correctly decided, and I suspect you
do too. But if you say we interpret the Constitution according
to the way that people at that time understood it, do you
really think that people at that time in America supported
racially integrated schools? Do you really----
Professor Mascott. Well----
Senator Kennedy [continuing]. Believe that?
Professor Mascott. Well, Senator, I think at the time of
the ratification of the 13th, 14th Amendment--and 15th, all
which have----
Senator Kennedy. But do you think people at that time
originally at that time supported integrated schools?
Professor Mascott. Well, Senator, on that particular
question, I don't know it as a policy matter whether they were
thinking about that particular issue. I think they certainly
understood that the 14th Amendment, for which a massive part of
this country essentially lost lives fighting the Civil War,
certainly understood it to require racial equality----
Senator Kennedy. But, Professor, you are not answering my
question. I am trying to understand how you--I am just trying
to understand how you think. It is very easy to say we
interpret the Constitution according to its original public
meaning, which, as I appreciate your testimony, means the way
people who read the Constitution at that time interpreted it.
Is that right?
Professor Mascott. Yes, Senator.
Senator Kennedy. Okay. Do you think that most people at
that time looked at the United States Constitution and said,
well, here it is, big as Dallas, racially integrated schools
are required? Do you really believe that?
Professor Mascott. Senator, I don't know, but I----
Senator Kennedy. And if you don't--I don't think you do
because I think historically that wasn't the case.
Professor Mascott. Well----
Senator Kennedy. So how do you square that with the holding
of Brown v. Board?
Professor Mascott. Well, I guess what I'm trying to say is
I think there are several steps in between that are--have not
come up yet in our conversation, which is that you look at the
text and structure, which of the 13th, 14th, and 15th
Amendments clearly is requiring racial equality. And then over
time, that has to be applied to different questions as they
arise in context.
So if the requirement is that all races be treated equally
under the law, and the evidence shows that segregated schools
is not doing that, then the requirement could be applied to
integrate schools.
Senator Kennedy. When you interpret a statute, you talked
about interpreting it according to its plain meaning. What if
the statute is ambiguous?
Professor Mascott. Well, Senator, if the statute----
Senator Kennedy. What do you do if it is ambiguous?
Professor Mascott. If it's ambiguous on the particular
question coming before the court, I start with that phrase, but
I also look at the context of surrounding provisions.
Senator Kennedy. I understand you define ambiguity as the
language plus the surrounding language.
Professor Mascott. Yes.
Senator Kennedy. I get that part. How ambiguous does it
have to be, 51 percent ambiguous or just a little bit
ambiguous?
Professor Mascott. So I have to say, I would use the same
approach essentially in all cases, regardless of the ambiguity,
because I would always start with the text, move to the
surrounding provisions with the aim of fully understanding what
Congress and the President had enacted, and only at that
point----
Senator Kennedy. Professor, I am going to run out of time.
With respect, answer my question.
Professor Mascott. Well, I----
Senator Kennedy. Okay? You are giving me professor talk.
How ambiguous does it have to be?
Professor Mascott. I mean, I think under the Supreme
Court's recent precedent in Chevron, it underscored that the
Court can never just rest and say it is ambiguous. The Court
has to come up with an answer.
Senator Kennedy. Yes.
Professor Mascott. So I would----
Senator Kennedy. So why don't you just look at legislative
history?
Professor Mascott. Well, I would--well, you can't look at
legislative history statements one by one because----
Senator Kennedy. Why not?
Professor Mascott [continuing]. The individual intent----
Senator Kennedy. Why not?
Professor Mascott. Well, Senator, with respect because this
body has its role in our system as an institution, not one by
one. So your personal understanding of the law----
Senator Kennedy. You know----
Professor Mascott [continuing]. Doesn't matter.
Senator Kennedy [continuing]. This will be my last
question. I am sorry. Well, Coons went way over. So you are
telling me that it doesn't help you at all to go through and
look at the congressional record or read the committee reports
or any of that? You don't think that is helpful in interpreting
what a statute means?
Professor Mascott. It depends on the way in which it is
being read. If it gives helpful statutory history, if it helps
to refer to other portions of context, sure, but not to give it
legally binding impact in and of itself. I would always be
looking at a broad range of sources and use each of these
statements as just one piece of evidence about what people
understood the statute to mean at the time. So, no, I would
never take a piece of legislative history in isolation and give
it legal impact.
Senator Kennedy. Thank you, Madam Chair.
Professor Mascott. Thank you.
Senator Britt. Senator Blumenthal.
Senator Blumenthal. Thanks, Madam Chair. Thank you for
being here and congratulations on your nomination. I would
say----
Professor Mascott. Thank you.
Senator Blumenthal [continuing]. That, prior to the Dobbs
decision, you were a pretty zealous advocate of overruling Roe.
Is that correct?
Professor Mascott. Senator, I do not recall ever advocating
for the overruling of Roe.
Senator Blumenthal. Well, I think in December 2021 you
said, ``The most constitutionally correct outcome in Dobbs
would be for the Court to conclude that the 14th Amendment due
process clause, a guarantee of process protections, contains no
substantive right.'' Is that your position?
Professor Mascott. Senator, yes. My scholarly and academic
work would have been consistent with the outcome of the Dobbs
decision and understanding there not to be a substantive due
process clause in the 14th Amendment.
Senator Blumenthal. You called the draft of Dobbs when it
was leaked in May 2022 ``a marvel of a draft.'' Do you think it
is a marvel of a draft? It became the Court's decision and its
opinion in the case, correct?
Professor Mascott. Senator, it did. And so, yes, I mean, I
have spoken highly of the Dobbs decision. As I mentioned
previously to the Senators on the Committee, would fully and
faithfully apply the Supreme Court precedent and was happy to,
when asked, provide extensive, you know, commentary about the
constitutional methodology in the Dobbs opinion. I think
actually some of those statements might have first happened
again in a hearing by this Committee because, as I recall,
there was a Subcommittee hearing on Senator Whitehouse's ethics
reform bill the morning after the opinion was leaked, and this
Committee was asking for feedback.
Senator Blumenthal. You called it a marvel of a draft?
Professor Mascott. Yes, and I wrote also in The Wall Street
Journal about the opinion as well, Senator, yes.
Senator Blumenthal. And you said about Roe that it was,
``not workable'' and ``really sat far out of the mainstream of
constitutional reasoning of the Court over the past few
decades.'' You said Roe was out of the mainstream after it was
well-established and well-accepted law for decades?
Professor Mascott. Well, Senator, yes, consistent with the
Supreme Court's own majority holding in Dobbs, which pointed
out that even using traditional stare decisis factors, the Roe
v. Wade decision was not one that merited the Court's stare
decisis effect because of the development in the law over time,
the fact that the Supreme Court itself had distanced itself
even in follow-on decisions about abortion from the Roe
reasoning and pointed out that the Court's text and tradition
approach led to a different outcome in Dobbs, leaving the
policy decision to the States and the people.
Senator Blumenthal. Let me, with apologies, interrupt
because I have limited amounts of time. You were asked also
about the ramifications of Dobbs, and you, in effect, dismissed
concerns that Dobbs would affect other substantive due process
cases. And you said, ``Loving v. Virginia, contraception, those
are so far away from the Court's decision in Dobbs that they
almost should not even be, I think, discussed in a realistic
sense at this point in time based on this particular
decision.'' So you do not view Dobbs as impacting in any way
Loving v. Virginia or contraception cases? Is that correct?
Professor Mascott. Number one I read the Court in Dobbs to
be very specifically grappling with the issues before it and
looking case-by-case at the relevant history of its own
reasoning in that line of cases. And I think the Court--the
majority opinion made that very clear, and then there were also
some concurring opinions that underscored it, Senator.
Senator Blumenthal. So you see Dobbs not requiring or
implicating the potential reversal of those other decisions?
Professor Mascott. That is correct. Not at this time, and
of course, as you know, the only reason a case even gets to the
Supreme Court is if the people have litigated it. And I think
the point I was making in those comments you referenced is that
Dobbs was very specifically oriented toward one line of cases
being litigated at that time. Thank you, Senator.
Senator Blumenthal. And let me ask you about one other
area. I think you've been an active member of the Federalist
Society, haven't you?
Professor Mascott. Yes, Senator.
Senator Blumenthal. And in fact, you received the
Federalist Society Joseph Story Award, which goes to lawyers
who have demonstrated excellence in legal scholarship and who
have made significant public impact in a manner that advances
the rule of law and free society, correct?
Professor Mascott. I was very honored to get that, yes,
Senator.
Senator Blumenthal. But I am sure you are also aware that
President Trump has attacked the Federalist Society, claiming
that it gave him bad advice on his judicial nominees, and he
has called its founder Leonard Leo a sleazebag. Do you agree
with President Trump's criticisms of the Federalist Society?
Professor Mascott. Senator, I believe your statement is
touching on judicial nominations, and President Trump, you
know, alone, of course, is responsible for nominations. And
other than that, I think I'm happy to answer questions about my
nomination, but I have, as you point out, a significant
background with the Federalist Society and was honored to
receive the award.
Senator Britt. Senator Blackburn.
Senator Blumenthal. Thank you.
Senator Blackburn. Thank you, Madam Chairman.
Before I ask my questions, I do want to make a comment, and
Chairman Grassley touched on this at the beginning of the
hearing. It is so disheartening, and actually it is almost
laughable to hear our colleagues on the other side of the dais
complain about lack of consultation with the White House.
Now, under President Biden, there were numerous Members,
and Senator Grassley talked about and mentioned Senator Tillis
also this morning, and me, and Senator Hagerty that were not
consulted at all. And there were not one, not two, but three
judicial nominees that the Biden White House moved forward on
without working with Senator Hagerty and me. So my colleagues
across the dais had the opportunity to say something about
those actions at that time, and they chose not to. They all
went along with what they felt like was the position of the
White House. So I find it, as I said, concerning,
disheartening, and really curious as to why they would take the
position they have.
Professor Mascott, I want to give you a chance to respond
to some of the claims that I have heard from my colleagues
across the dais that you are not qualified for the role. And I
found it very interesting to hear them talk about this because
they rubberstamped people that were brought forward by the
Biden administration who were blatantly unqualified, and they
were inexperienced judicial nominees. And I think that your
credentials speak for themselves. I noted that you achieved the
highest GPA at George Washington Law School, the highest in
history----
Professor Mascott. Thank you.
Senator Blackburn [continuing]. Which is significant. And,
of course, your clerkships, which have been discussed this
morning, and you have held senior positions at the DOJ. You
have spent years as a professor in constitutional and
administrative law. And your list goes on and on. So speak for
a moment about why you are ready, why this has prepared you to
be a fair and unbiased judge.
Professor Mascott. Thank you so much, Senator Blackburn.
And I am deeply honored, of course, by President Trump's
nomination to a seat on the Third Circuit and this Committee's
consideration. And as has been mentioned by some other Senators
and Senator McConnell, I have had the honor of being a public
servant and working on all three branches of Government,
multiple positions there. I have been really grateful to serve
for many years as a law professor, teaching students, some of
whom are even working here today as committee staff, during
that time, being able to file dozens of amicus briefs,
sometimes on behalf of Senators of this Committee, in courts
around the country, in the Supreme Court, and then working as
an attorney in the Department of Justice and now the White
House on issues of separation of powers and testifying at this
Committee.
And if I were to have the deep honor to be confirmed by
this body, I would, in every case, bring exacting rigor and
care and acknowledge the role of the judge as a very limited
one in our system to resolve just discrete cases and
controversies on questions that are brought before us where
there is jurisdiction.
Senator Blackburn. I wanted to talk with you a little bit,
and you have written several pieces on the Presidential
constitutional authority to remove executive officers, and I
noted your law review article in 2018, ``Who are `Officers of
the U.S.?' '' And I know that there is discussion around the
President's ability to remove these officers from
administrative agencies. And I know you can't talk about
specifics, but talk generally about the State of the law when
it comes to the President's constitutional removal power.
Professor Mascott. Thank you, Senator. And so, as you
mentioned, I want to be very careful sitting as a judicial
nominee now and not as an academic in addressing issues that
are in a very real way before many courts and many cases right
now in the country. But as you have referenced, those pieces
were mentioning in the Stanford piece and then others that the
Constitution vests the executive power in the President.
And it is by design because the President, through the
electoral college is, of course, selected by the American
people, and that if the President has the duty to carry out
that power, the idea that that includes within it the
supervisory power, and we would never want in our system of
Government anyone really to be exercising policymaking power
who is not accountable back to the people. And so that just
raises questions about if there are full tenure protections,
whether individuals might be at some point too insulated from
the political system and Presidential supervision for it to be
consistent with the constitutional structure.
Senator Blackburn. Thank you. Thank you, Madam Chairman.
Senator Britt. Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
Professor Mascott, welcome. Is it fair to say that you have
fairly little actual litigation experience outside of serving
as amicus counsel?
Professor Mascott. Well, Senator, as I believe the Senator
Judiciary questionnaire points out--and also, actually, that
was quite extensive experience with dozens of amicus briefs,
sometimes for Senators here. I also mentioned the background--
--
Senator Whitehouse. But an amicus brief is different than
actually trying cases. Have you ever tried a case, for
instance, been the lead counsel in a case that was tried to
verdict?
Professor Mascott. So, Senator, I believe as the letter
that we submitted yesterday indicates--it was talking about the
District of Massachusetts matter that I argued. It was a
summary judgment in full trial, collapsed into one hearing, and
argued that to verdict on the Title IX Department of Education
and then also had the honor to argue on courts of appeals
during my time at the Department of Justice and have served in
all three branches of Government, of course.
Senator Whitehouse. And with respect to your connections to
Delaware, have you ever voted in Delaware?
Professor Mascott. Well, Senator, as I was discussing with
Senator Coons, we, of course, have had a long time home----
Senator Whitehouse. It is a pretty simple question. I would
prefer if I didn't get filibustered, and I actually got an
answer to a simple question. Have you ever voted in Delaware?
Professor Mascott. Well, Senator, as a public servant and
professor here, no. I have been voting in Maryland.
Senator Whitehouse. Have you ever registered to vote in
Delaware?
Professor Mascott. Well, Senator, as a public servant and
academic here, I am registered to vote here. If this body----
Senator Whitehouse. Do you have a driver's license or any
other record of licensing from the State of Delaware?
Professor Mascott. Senator, I do not yet have a Delaware
driver's license. I do have a car that is insured in Delaware
with--in anticipation----
Senator Whitehouse. Because you have a summer house there?
Professor Mascott. We have had a long-time home in--yes.
Senator Whitehouse. And you were not admitted until May
into the Third Circuit?
Professor Mascott. Senator, I became admitted in May in the
Third Circuit, yes.
Senator Whitehouse. And you have no blue slip from either
of the two Democrat Delaware Senators?
Professor Mascott. Senator, I am really honored to be the
President's nominee, and----
Senator Whitehouse. With no blue slip, correct?
Professor Mascott. Well, I don't--I didn't believe there
were blue slips at the circuit court level at this point for
any circuit court nominees.
Senator Whitehouse. That was undone by our friends on the
other side of the aisle, and now that is the new tradition, and
I am clarifying that you have none, correct, right?
Professor Mascott. Senator, I don't because it has not been
used for circuit court nominees.
Senator Whitehouse. And your nomination to the Department
of Education as general counsel was withdrawn when, today?
Professor Mascott. Senator, I believe it was referenced
that it was yesterday.
Senator Whitehouse. Yesterday, okay. You were on the board
of the New Civil Liberties Alliance, I believe, at the time
when Jeffrey Clark was hired. Do you recall that hiring?
Professor Mascott. Senator, I don't--well, I don't know
what you mean by recall the hiring. I was on the board of the
New Civil Liberties Alliance and just--and--up through about
July of 2021. And, as I recall, what happened around that time
is that--and I had a conversation with the director about it--I
stopped being a board member. They were bringing litigation
that involved an opinion that I had written at the Office of
Legal Counsel in the executive branch, and I strongly disagreed
with their stance in that litigation. It was actually bringing
the opposite view. I also expressed that it was----
Senator Whitehouse. I asking you about the hiring of
Jeffrey Clark.
Professor Mascott. But that's my--I guess my point is, as a
member of an advisory board, first of all, of the group, I
wouldn't have had anything to do with it, and your issue has--
--
Senator Whitehouse. So you weren't aware of it?
Professor Mascott [continuing]. Nothing to do with----
Senator Whitehouse. You weren't aware of it at the time?
Professor Mascott. I read newspaper accounts of his hiring
on the New Civil Liberties Alliance. As a board member,
advisory----
Senator Whitehouse. Nobody contacted you to ask that you
support----
Professor Mascott. Oh, no, no. No.
Senator Whitehouse [continuing]. His hiring----
Professor Mascott. Nope.
Senator Whitehouse [continuing]. And you weren't----
Professor Mascott. Nope.
Senator Whitehouse [continuing]. Consulted by him? You
didn't interview him?
Professor Mascott. No, no. It was like a 24-member advisory
board, a couple of dozen people. No.
Senator Whitehouse. Got it. You constantly use the
pejorative term ``administrative State.'' You have called for
the repeal or the overturning of Humphrey's Executor. You have
called to undo Chevron deference. You have supported the so-
called major questions doctrine. All of these signals are
extremely important to the fossil fuel industry, which has a
decades-long battle against agencies that regulate its
pollution, and which is the dominant donor interest to the
Republican Party, and which heavily funded the half-billion-
dollar enterprise to capture the Supreme Court. How on earth
can you expect anybody representing an interest opposed to the
fossil fuel industry to get a fair hearing from you?
Professor Mascott. Senator, if I were to have the honor to
be confirmed at the Third Circuit, as mentioned, I would be
holding the role of a judge, which is to resolve fully and
impartially cases and controversies, not rule on policy
matters. And also, if one looks at a record, even of amicus
briefs in the clinics, these are cases that are being brought
on legal principles, and at times for parties that are holding
different policy views, and I would continue to have the same
tradition of impartiality for the rule of law if I had the
honor of being confirmed.
Senator Britt. Senator Schmitt.
Senator Schmitt. Thank you, Madam Chair. And I would
actually followup on Senator Whitehouse's argument. The little
guy gets a better shot now. Look at the Loper Bright case.
These were fishermen that, through the administrative State,
were being then forced to pay for their own inspectors on the
boats. And the leviathan of Government that was aimed against
them, including their pleas for help, were ignored. So I
actually appreciate your position on as it relates to the
administrative State more broadly, but also your positions I
think is the importance of separation of powers, and you are a
national expert on that. And I am very excited about your
nomination, so congratulations.
Professor Mascott. Thank you, Senator.
Senator Schmitt. Last year, of course, the Supreme Court
overturned the Chevron deference doctrine, and you were
gracious enough to participate in our post-Chevron working
group, and I have the report here, which provides and outlines,
I think, a way forward now that that deference is no longer
with us, thankfully.
In your view, what is the importance of that Loper Bright
decision?
Professor Mascott. Senator, I think it was quite a
significant way in which the Supreme Court looked, in that
case, at the text of the Administrative Procedure Act, which,
as this body knows, governs procedural practices across
administrative agencies, and simply underscored and reaffirmed
the idea that when statutory text is before a court, the court
is supposed to look at the text as it was enacted by this body
and signed by the President and not give a thumb on the scale
in favor of the administrative agency's interpretation of the
statute because--during the administrative agency's own
regulatory proceedings but take a full and fair look at what
the law's text means.
Senator Schmitt. So does any deference remain in
interpreting statutory text?
Professor Mascott. Not on questions of law after the Loper
Bright decision.
Senator Schmitt. And you will faithfully apply that
decision as a Third Circuit judge?
Professor Mascott. Yes, of course.
Senator Schmitt. A couple other questions I want to get to
quickly. At Catholic University's Columbus School of Law, you
ran a Separation of Powers Institute, is that correct?
Professor Mascott. Yes, Senator.
Senator Schmitt. Why do you think the separation of powers
is so important? Why do you think--as Justice Scalia once
pointed out, that a lot of dictatorial, even communist regimes
have a parchment of paper extolling the importance of
individual rights, but it is the separation of powers that
ultimately allows that to be meaningful in this country. Why do
you think it is so important?
Professor Mascott. Yes, Senator. It is core to our
constitutional structure because I think the Framers understood
that decisionmaking needs to be divided up among multiple
people to keep those of us who want to serve and have power
accountable ourselves. And so at the Federal level, there's
three different branches, as this body knows, but there's also
the separation of powers vertically between the Federal
Government and the States. And the policymakers are all
accountable through elections back to the people, and it is
core to our freedoms and our liberty and our prosperity.
Senator Schmitt. And through that vertical and horizontal
protection, it is meant to ultimately protect individual
liberty, right?
Professor Mascott. Correct, yes.
Senator Schmitt. All of it is dispersed----
Professor Mascott. Yes, Senator.
Senator Schmitt [continuing]. Power and--yes.
Professor Mascott. Yes, absolutely.
Senator Schmitt. I just have a couple final questions on a
vertical stare decisis. In recent months, the Chief Justice,
Justice Kavanaugh, and Justice Gorsuch all emphasized the need
for lower court judges to give some level of precedential
weight to Supreme Court emergency docket decisions. And
interestingly, many Democrat appointed judges are refusing to
do that.
I heard a lot during the initial confirmation process from
my Democrat colleagues about how they were so concerned that
President Trump wasn't going to obey court orders. Well, it
turns out, district court judges appointed by Democrats with
overtly partisan leanings are refusing to obey orders from the
Supreme Court on questions that are four corners. There is no
distinguishing. They just don't want to do it because they
don't like President Trump.
As a Third Circuit judge, will you respect Supreme Court
precedent in emergency docket decisions?
Professor Mascott. Senator, yes, I will respect all Supreme
Court precedent.
Senator Schmitt. And do you have any issues with
overturning a lower court judge who, on your read, did not
follow Supreme Court precedent?
Professor Mascott. Senator, I hesitate to say anything at
all that would suggest I am giving an opinion on a particular
case, but as a general matter, I would consider myself on the
appeals court to be responsible for following Supreme Court
precedent myself. And if I saw it not followed in a decision
that was under my review, to reach a holding that is consistent
with the Supreme Court precedent and reverse the lower court.
Senator Schmitt. So if a lower court judge were ignoring
the Supreme Court, like my friends on the other side have
wanted to juice up the public that President Trump would do,
which he has never done, you would have the courage in that
moment to say to that lower court judge, you need to follow
actually Supreme Court precedent in ruling here?
Professor Mascott. If I thought a lower court decision was
incorrect with that Supreme Court precedent, yes, I absolutely
would reverse it if I had jurisdiction and make it be
consistent with the Supreme Court precedent, yes.
Senator Schmitt. Thank you. Congratulations. I think you
are going to be great on the bench. Thank you.
Professor Mascott. Thank you.
Senator Britt. Senator Klobuchar.
Senator Klobuchar. Thank you. Thank you very much, Madam
Chair. Issues have already been raised about Delaware, and I
have a lot of respect, as does everyone in this room, for
Senator Coons and his views of who should--his ability to weigh
in on who should be a judge in his State. But I am going to put
that aside. I know that has been raised, and I am very
concerned about that.
I want to lead with what Senator Schmitt was asking about,
and that is Justice Scalia's comment that our Constitution
separates powers to prevent the centralization of power in one
person or one party because when power is centralized in one
person, ``the game is over''--that is his words--for rights.
So, President Trump has claimed, ``I have an Article II
where I have the right to do whatever I want as President.'' He
said that as recently as--on August 26, he said, ``I have the
right to do anything I want to do. I am the President of the
United States.''
Do you believe that the President is able to do, ``anything
he wants to do''?
Professor Mascott. Senator Klobuchar, of course, I--it's
not for me to comment on individual, you know, statements
really by anyone else. The matter of Presidential discretion,
as this body knows, within Article II and the executive power,
there are a number of responsibilities that the Executive has
within which the Executive----
Senator Klobuchar. But I am just asking----
Professor Mascott [continuing]. Has full discretion----
Senator Klobuchar. Okay. Okay. I am just asking you if you
think, under our Constitution, the President has the right to
do anything, as he said----
Professor Mascott. Well----
Senator Klobuchar [continuing]. He wants to do?
Professor Mascott. Well, I suppose it--I don't know the--I
suppose it depends on the context of the remarks is kind of
my--with respect, my point, if we're talking about a pardon
decision, if we're talking about nomination decisions, there
are many, many ways in which the President has full discretion
that would----
Senator Klobuchar. But you will not say that he doesn't
have the power to do whatever he wants to do under the
Constitution. He said anything he wants to do. He said ``the
right to do anything I want to do.'' That is what he said.
Professor Mascott. Well, Senator, I guess I'm saying that
it--we're--it's--Presidential discretion depends on the context
of the situation. You mentioned before separation of powers. Of
course, also, like we have talked about today, Congress has a
lot of power----
Senator Klobuchar. You won't say it, so I guess the answer
is clear. So last October, you told a group of students that
you believe that, ``Presidents are actually too weak.'' That's
at Yale. The President has unilaterally frozen appropriated
funds, shuttered congressionally created departments, attacked
the independence of the Federal Reserve and agencies Congress
set to be independent, refused to put Democratic commissioners
on independent commissions, imposed costly tariffs, detained
individuals without due process, and gone after universities,
law firms, and journalists. Do you still believe that
``Presidents are actually too weak'' after these unprecedented
power grabs?
Professor Mascott. Senator, without commenting on a lot of
various, you know, actions and current issues that might be
before the courts or currently are, my recollection of the
context of the statement that I was--that you quote was that it
was a conversation about Presidential supervision of the
executive branch. And at that time, my understanding of the
Constitution remains to be that the President is vested with
the executive power and therefore is in charge of the executive
branch. And I believe I was making comments on, historically,
as the Supreme Court itself has pointed out in different
opinions, Presidents have not always been free to fully
supervise their branch. And I was putting forward a hope that
the constitutional principles, as they are historically
understood, would continue to be respected.
Senator Klobuchar. Okay. Could we just move to guns here?
As you know, we have had a number of horrific shootings in
Minnesota this year, including involving assault weapons. You
have praised Justice Thomas' views on the Second Amendment,
which are often in dissent even on a very conservative Supreme
Court. What is your understanding of the Second Amendment and
whether Congress is permitted to pass laws to regulate the sale
of guns? And I ask that because Scalia actually said, ``Like
most rights, the right secured by the Second Amendment is not
unlimited. It is not a right to keep or carry any weapon
whatsoever.''
And Thomas was the only one who struck down a law to stop
domestic abusers from possessing a gun, legislation I worked
on. He was also one of just two Justices who would have struck
down regulations of ghost guns. And in June 2025, he would have
taken a case challenging Maryland's assault weapons ban.
So what I want to know is, given that you have praised him,
what is your view on your understanding of the Second Amendment
and whether Congress is permitted to pass laws to regulate the
sale of guns in any way?
Professor Mascott. So, Senator, I want to be careful in--as
in all my answers, of not straying into commenting on something
that could come before me as a judge, but I agree with the--or
would follow Supreme Court precedent that there is an
individual right to bear arms and that in looking case-by-case
basis, it is important to look at the history and tradition of
what the regulation of guns was at that time. And so if a case
came before me raising that question, I would faithfully and
fully apply Supreme Court precedent.
Senator Britt. Thank you. I would like to enter a letter
into the record from 53 legal scholars. They write, ``We are
united in our view that Professor Mascott would be an
outstanding addition to the Federal judiciary. Professor
Mascott's impressive legal career includes service in all three
branches of the Federal Government, in private practice, and in
the legal academy. Her work has been cited not just by many
scholars but by judges at every level of the Federal judiciary,
including the Supreme Court. Some of us agree with her
analysis. Others do not. We agree that, on the whole, Professor
Mascott's academic work demonstrates the sort of intellectual
rigor and depth that will serve her well during her career as a
judge.''
Professor Mascott. Thank you.
Senator Britt. Thank you.
Senator Welch. Thank you very much, Madam Chair.
Professor Mascott, the Congress has authorized the creation
of inspectors generals. In fiscal year 1924, it saved $71
billion. In FY 1923, it saved $93 billion. Is it your view that
Congress has the authority to establish inspector generals that
review the appropriations and expenditures that Congress
authorizes?
Professor Mascott. So, Senator, as with all the questions,
I want to, in answering, stick with general principles in case
there would ever be a case before me raising questions related
to inspectors general. I don't understand there to have been a
general constitutional question raised about inspectors
general. I mean, I think in--with respect to the question about
their role in the system, as I mentioned in prior discussions
on executive power, it would always, of course, be important
that the office is structured so that that position is
ultimately under the supervision of the executive branch and
ultimately the President. I realize that raises constitutional
tension with the role of the inspector general to look at
records.
Senator Welch. There is a tension, okay? Congress clearly
has the right to appropriate funds, correct?
Professor Mascott. Yes, it is a constitutional power, of
course, to appropriate funds.
Senator Welch. And in the power to appropriate funds, do
you contest the obligation that Congress has to make certain
there is oversight in the expenditure of those funds?
Professor Mascott. Well, Congress--or, sorry, Senator, as
the Supreme Court's indicated in precedent in the last couple
of years, part of Congress' legislative power, yes, includes
the ability to get records and to find out what is happening in
the agencies that it legislates.
Senator Welch. You have some question as to whether
Congress, in pursuance of that obligation to oversee the wise
use of taxpayer money according to appropriations Congress
made, the Congress can't have an inspector general that is
doing that work for us on a daily basis on behalf of the
American people?
Professor Mascott. Oh, I certainly think Congress can
create an office that is responsible for accounting and keeping
records and can ask for records.
Senator Welch. The Executive has fired the inspectors
general, correct?
Professor Mascott. Well, I don't--as a factual matter, I
don't recall how many firings there have been. My question also
said it needs to be subject to----
Senator Welch. It doesn't matter how many. The Executive
has fired without giving Congress the 30-day notice required in
the statute.
Professor Mascott. So--but, Senator, my earlier question--
and again, now we're starting to get into the kind of specifics
of things that could come before me if I were a judge, but in
general----
Senator Welch. That is specific.
Professor Mascott [continuing]. Even inspectors general,
anybody who is responsible for any portion of the executive
power has to be responsible to the President, and it is because
of the core----
Senator Welch. So----
Professor Mascott [continuing]. Value in our system----
Senator Welch [continuing]. That is----
Professor Mascott [continuing]. Of elections.
Senator Welch. But that is the tension. We have a
responsibility in Congress to appropriate funds. Correct. We
have a responsibility to make certain that the funds that are
appropriated and taxed, paid for by the American people, are
wisely spent. Do you have a dispute with that?
Professor Mascott. Senator, you do, but with respect, when
we are talking about inspector general, which is in your
hypothetical----
Senator Welch. I am going to interrupt for a second----
Professor Mascott. Okay.
Senator Welch [continuing]. Because we are not getting an
answer here. And I am acknowledging there is a tension, but it
goes back to what Senator Klobuchar said. There is a tension
because in the constitutional system, it was designed to have a
tension so that there wouldn't be the concentration of power in
one branch, the executive, the legislature, or the judiciary.
Let me ask another question. If Congress has the authority
to impose tariffs, and that is a constitutional responsibility
and right we have, is that correct?
Professor Mascott. Yes, Congress has legislative
responsibility for taxing, yes.
Senator Welch. So does the Executive have the legal
authority to impose a tariff because the Executive doesn't like
what the judicial process is doing in a country like Brazil?
Professor Mascott. Senator, the question of tariffs is
actively----
Senator Welch. No, I am not----
Professor Mascott [continuing]. Before the courts.
Senator Welch. I am not asking just about the tariffs. I am
asking, is there constitutional authority for an Executive to
decide to use the tool of a tariff because he disrespects and
dislikes the judicial policy in another country?
Professor Mascott. Senator, my understanding of the legal
basis for the tariffs is statutes that this body enacted with
broad discretionary language, and tariffs within the terms of
those statutes would, of course, be lawful.
Senator Welch. Last question. Who won the 2020 election?
Professor Mascott. Senator, President Biden was certified
as the winner of the 2020 election.
Senator Welch. So you can't tell me who won.
Professor Mascott. Well, Senator, President Biden was
certified the winner of the 2020 election.
Senator Welch. Did he win the election or did it just
accidentally get certified?
Professor Mascott. Senator, I have answered that question.
He was certified the winner of the election.
Senator Welch. I yield back.
Senator Britt. Senator Schiff.
Senator Schiff. Thank you, Madam Chair.
Professor, you have appeared before the Committee many
times, but the last time you were in Committee was for a
hearing entitled ``When the President Does It, that Means It's
Not Illegal: The Supreme Court's Unprecedented Immunity
Decision.'' At the time you described that immunity decision as
modest, and I want to ask you about the modest impact of that
decision.
When John Sauer was here for his confirmation hearing, I
asked him about an argument he made in that case before the
court of appeals in which he was asked specifically by the
court of appeals judge, one of them, if the President were to
order SEAL Team 6 to assassinate a political opponent, would he
be immune? His answer, apparently, was yes, unless the
President's party was willing to impeach him first. Is that
your view as well? Would he be immune from prosecution for
using the military to assassinate a political opponent?
Professor Mascott. Well, Senator, as a lower court judge, I
would be fully bound by Supreme Court precedent. I don't--I
mean, on that particular question--and this is one reason I
address the opinion as modest--the opinion addresses only
portions of Presidential immunity. It specifically is
addressing criminal immunity.
Senator Schiff. I will ask you a specific question. Would
the President be immune from prosecution if he ordered SEAL
Team 6 to assassinate a political opponent? Yes or no?
Professor Mascott. Senator, under the Supreme Court
precedent on that question, the Supreme Court has specifically
not answered it.
Senator Schiff. Is that a difficult question? Is that an
open question in your view?
Professor Mascott. Well, Senator, under the contours of
Trump v. United States, which deals with criminal immunity, I'm
not sure that it fully answers all of the political mechanisms
that would be in place to address and keep such a horrific
situation from ever occurring.
Senator Schiff. So you are unclear as to whether a
President could be prosecuted for that. Is that what you are
saying? You don't know the answer?
Professor Mascott. Well, I think what I'm saying is that
within the particular contours of criminal immunity discussed
in that opinion, it addresses actually what is an official act.
And so I think the first threshold question would be whether
one could ever conceive of such a thing as an official act.
Senator Schiff. I don't want to filibuster my question. It
is very simple. If the President tomorrow would order SEAL Team
6 to assassinate a political opponent, in your view, is he
immune from criminal prosecution, absent an impeachment first?
Professor Mascott. If it's not an official act, a phrase
that has not yet been fully defined in the courts, he's----
Senator Schiff. If he is using the military to do it, which
the Court said he has absolute immunity when he deploys the
military, is he immune or not?
Professor Mascott. Well, I don't read the Court's decision
to say that any use of the military outside of official acts
comes within its immunity contours. And as this body knows,
because of various drone strikes and other things----
Senator Schiff. So under the question I asked you, what is
the answer, Professor? Yes or no? You are----
Professor Mascott. Senator----
Senator Schiff [continuing]. Used to answering questions
and asking your student questions. I am asking you a very
simple question. Yes or no? Is the President immune if he uses
SEAL Team 6 to kill a political opponent?
Professor Mascott. Senator----
Senator Schiff. Yes or no?
Professor Mascott [continuing]. With respect----
Senator Schiff. Okay.
Professor Mascott [continuing]. I think the Supreme Court--
--
Senator Schiff [continuing]. You are not willing to answer
the question. Let me ask you a different question. It was
recently reported that the President and his family made around
$6 billion from the sale of crypto assets. Some of that money,
much of that money comes from the Gulf. If the President were
to sell a foreign policy decision to a Gulf nation in exchange
for a crypto donation, is he immune from prosecution for that?
Professor Mascott. Senator, I don't know anything about the
situation that you are describing. As I have said----
Senator Schiff. But you know something about the immunity
decision. You said it was modest. I am trying to determine just
how modest you think it is. Can the President sell U.S. foreign
policy to the highest crypto donor and have a get-out-of-jail-
free card?
Professor Mascott. Senator----
Senator Schiff. Or is he liable for prosecution?
Professor Mascott. Senator, if I may, the Constitution has
many constraints for all of us. To carry----
Senator Schiff. You don't want to answer that question. Let
me ask you a very different question. If the President were to
use the military in direct violation of court order,
deliberately, knowingly, blatantly use the military in
violation of court order, is he immune from any liability?
Professor Mascott. Senator, as I said when I testified last
September about the decision, the Clinton administration had an
opinion----
Senator Schiff. I am not asking about the Clinton
administration.
Professor Mascott. Well, this is directly relevant. The
President--the position of the Clinton administration is that
the President, while serving----
Senator Schiff. I am not asking the position of the Clinton
administration. I am asking your position. Your view of the
immunity decision, which you have described as modest, I am
trying to determine just how modest you think it is.
Professor Mascott. So----
Senator Schiff. You are unwilling to say a President can't
kill an opponent and be liable. You are unwilling to say the
President can't sell foreign policy of the United States for
cryptocurrency. You're unwilling to say he can't do that and
still be immune. My question is, can he use the military in
deliberate violation of court order and be immune? Yes or no?
Professor Mascott. Senator, you are asking very specific
questions about whether our criminal justice system is the
forum to punish----
Senator Schiff. Madam Chair, I yield back.
Senator Britt. Thank you. I would like to enter into the
record a letter from 48 former Justice Department officials
that are familiar with Professor Mascott's work. They
explained, ``Her academic scholarship has been cited in Supreme
Court opinions. She has argued high-stakes Federal cases, and
she has submitted scores of briefs in courts across the
country. Mrs. Mascott has been a world-class mentor to hundreds
of aspiring lawyers. She was also a standout attorney at the
Department of Justice, and her judgment is beyond reproach. She
will make an excellent judge.''
Without objection, the letter is entered into the record.
Senator Britt. Senator Booker.
Senator Booker. Thank you very much, Madam Chairman.
And Ms. Mascott, this doesn't directly pertain to you, but
I just want to say for the record, I am watching, in the short
time I have been in the United States Senate, the continued
deterioration of the advise-and-consent role of the United
States Senate. I know Senator Coons very well, one of my few
friends I had in the Senate before I became a Senator, who
works in a bipartisan way, in a way that is a model really for
the United States Senate. He made it very clear to the White
House he was willing to work with them to find a candidate
acceptable to them that could be a consensus and unifying
candidate. But unfortunately, they are strongly objecting to
your nomination.
And I know and I have heard from Members of this Committee
on the other side of the aisle how much they reacted when a
similar situation happened, or at least when a nominee was put
forward in the Biden administration that didn't ultimately go
forward to a vote. Well, this mirrors my experience with the
vacant Third Circuit court seat in New Jersey, which was filled
by Emil Bove. With your nomination, we now have two judicial
nominees to the Third Circuit that do not have home State
Senator support.
More than that, their objections, I think, are principled
because of your lack of ties to the circuit on the appellate
court. You will be reviewing decisions of the District Courts
in Delaware, New Jersey, Pennsylvania, and the Virgin Islands
who haven't appeared in this circuit and have very few ties.
There is a reason why our Framers put these very important
pillars into our Constitution.
And what I am seeing right now is something that I know
confidently that my colleagues on the other side of the aisle
would not accept, would find problematic. And to do it in a
district where there are Senators who are very much willing to
support Republican nominees that are done in a process that
brings us together and doesn't yet again not only divide us,
but ultimately continues to deteriorate the role that we have,
I find highly objectionable.
But Ms. Mascott, you are before us, and I want to jump
right in. In your Senate questionnaire, you describe your
selection--I am sorry. When the President tried to fire FTC
commissioners, I believe illegally so, Rebecca Slaughter and
Alvaro Bedoya, I led over 40 of my colleagues in an amicus
brief before the Court. In our brief, we defended the statutory
protections Congress gave to the FTC commissioners to prevent a
President from firing an FTC commissioner without cause. These
protections were upheld by the Supreme Court in a 100-year-old
precedent, almost 100-year-old, the Humphrey's Executor
decision, which I know you are familiar with.
These protections exist because we need the FTC and other
independent agencies to remain independent. The FTC breaks up
monopolies, protects children's privacy online, and protects
consumers by encouraging competition that keeps prices low at
the grocery store, the pharmacy, and gas stations. But you
argued that Humphrey's Executor was ``not correctly decided.''
You were arguing essentially that independent agencies, that
the FTC, maybe even the Federal Reserve, were never meant to be
independent and shall serve at the pleasure of the President.
Can you explain how an agency tasked with protecting American
consumers can possibly remain independent if a President can
fire its members at will for any reason?
Professor Mascott. So, Senator, thank you for the question,
and I want to be careful in giving an answer. I know you
referenced in my academic writings to not stray into definitive
statements that would be a problem as a judicial nominee.
Structurally, with constitutional principles, my scholarship
and those comments were referencing the principle that the
President is vested with the executive power and so needs to be
fully in charge of the executive branch, and that within our
system we have checks for everyone. And so if there were a
fully independent commission, who would be responsible for
checking their actions if it is not the Presidential
supervisor? Now certainly Congress, through its appropriations
power, through the contours of the power that it gives to the
office, through imposing constraints, would certainly have a
role. And so I think that is a way in which a separation of
powers would operate effectively.
Senator Booker. So I am going to have more questions for
the record, but I want to just let you know clearly that I
believe we have a President who has authoritarian ambitions. I
believe we have a President right now who is openly violating
court orders, openly violating clear principles of our
Constitution. We have a President that is threatening judges
that disagree with him and the independence of the judiciary.
We have a President that is assuming responsibilities like
spending powers clearly laid out in the Article I branch.
I am doing a lot of reading recently about the
deterioration of democracies around the globe, and it is
amazing how this President is doing things that speak to a very
chilling and very sobering reality of a person who does not
have respect for our Constitution and is doing things, to me,
that could undermine our democracy, its strength, the trust in
our institutions, or worse.
I have a big suspicion now that he is putting forward
judges that are more loyal to him than they are to
constitutional principles. I believe we are in a dangerous
time, and I am going to have questions for you for the record,
but I will say to you in this open hearing that your job is not
to be President Trump's lawyer on the courts, but it is a
sacred obligation.
And when the independence of agencies, when the checks and
balances of our Constitution are under attack, as they are
right now, it really is chilling to me that we have a judge
nominee before us that cannot state unequivocally that they
will protect not just the Constitution, but the important and
urgent independencies of agencies and the urgency we have right
now to deepen our commitment to constitutional principles. And
so I look forward to getting your answers on the record, and I
thank you very much for the indulgence to the Chairwoman.
Senator Britt. Thank you. Professor Mascott, you have had a
lot coming at you. I want to say congratulations on your
nomination, and I wanted to give you the opportunity to think
if there are any questions that you would like more time to
answer or to dig into, I certainly would love to hear those
responses. I know how these back-and-forths can be, and
certainly, we would love if there is anything that you didn't
get to address to give you that opportunity to do that.
But when I am looking at your background, graduating from
law school with the highest GPA ever recorded at George
Washington University Law School, clerked for two Justices on
the Supreme Court, and authored 29 published scholarly papers
with a combined total of over 5,700 downloads, you and your
work have been specifically cited by Justices of the Supreme
Court both in written opinions and oral arguments. We have
heard some today about your time in academia.
What I think people need to understand is that you have not
retreated to the ivy tower of academia. Unlike most law
professors, you clearly kept one foot in appellate practice and
then the other filing amicus briefs obviously in consequential
appeals before the Supreme Court and Federal courts of appeals
and also being there in the classroom.
Supreme Court Justices have even mentioned you by name at
oral arguments, spotlighting the position that you have
advanced in an amicus brief. You have also stood in Federal
court on behalf of the United States and authored scholarship
that Supreme Courts have cited eight times, underscoring your
contributions to these courts and scholarly understanding of
all that is in front of us. That blend of practice, appellate
advocacy, and scholarship, all while juggling the demands of
being a professor are rare and exceptional.
I would love for you to take a few minutes and talk a
little bit about how you believe that has shaped your judicial
philosophy, and then also would like to hear anything that you
feel like you haven't had an opportunity to answer.
Professor Mascott. Thank you very much, Senator. And I've
been really honored to serve in all of those venues, and if
this body were to do the honor of confirming President Trump's
nomination of me to the Third Circuit, I would of course carry
out that duty with a lot of seriousness and rigor, upholding
the rule of law to the best of my ability impartially according
to the text and structure of the Constitution. And the
opportunity to serve in all three branches of Government has
really helped to provide experience that I think would give a
good foundation of being able to understand the limited role of
a judge.
And as far as more comments, I'm just very grateful for
everyone's time this morning and am just really so thrilled and
moved to think about the possibility of continuing to be able
to serve this country if I were confirmed to the judiciary.
Senator Britt. Well, thank you for your willingness to
serve.
This concludes panel 1. We appreciate your testimony, Ms.
Mascott, and you are excused.
Professor Mascott. Thank you.
Senator Britt. Will the witnesses for panel 2, the
nominees, please come forward and stand at the witness table. I
will now administer the oath. Would you all raise your right
hand, please, and answer this question?
[Witnesses are sworn in.]
Senator Britt. Thank you very much. You may be seated.
Well, welcome. And as customary in our process, if you
desire to introduce the people that are with you, including
your family, then you may be able to do that and then give your
opening statement. We are going to start with Justice
Chamberlin, and then we will just go right down the line.
Justice Chamberlin, the floor is yours.
STATEMENT OF HON. ROBERT P. CHAMBERLIN, NOMINEE TO SERVE AS
UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
MISSISSIPPI
Judge Chamberlin. First, I would like to thank Chairman
Grassley, acting Chairperson Britt, and Ranking Member Durbin.
I appreciate you and the Members of this Committee for holding
this hearing.
I would like to thank President Trump. It is a tremendous
honor to receive this nomination and to be here today.
I would also like to thank Senators Wicker and Hyde-Smith
for their kind remarks earlier this morning. I've known each of
them for many years, and I greatly appreciate the kind words.
I have with me today my wife, Kim. We just celebrated 33
years of marriage not very long ago. She herself has been a
public servant for decades, and importantly to me today, she
has stood by me during any endeavor I have undertaken, and I
have tried several during my career.
I would like to thank a few people or mention a few people
that are not here today but that are viewing from home or
otherwise. My mother, she would not--she's back home in
Hernando. She would not miss this for anything in the world
other than her irrational fear of flying, which I believe is
the same reason my mother-in-law is watching from home.
I would like to recognize my brother, Larry, and his--my
sister-in-law, Juanita, who are both doing the same, as well as
my brother-in-law, Don, and my sister-in-law, Sydney. Finally,
I would recognize my son, William, and my daughter-in-law,
Sarah. They are back home in Jonesboro, Arkansas, where they
work for Arkansas State University, him in the athletic
department, her in communications, and they are getting ready
for their first-ever matchup against the University of Arkansas
in football. And as you know, in the South, football is king.
I would briefly mention a couple of mentors if I may. I
would mention Bill Austin, who gave me my first job back in my
hometown. He and the law firm, Billy Myers, Mary Monteith,
Debbie Brandon, each taught me many, many things in their own
way about the law, and I am greatly appreciative to Bill Austin
for taking me under his wing.
I would also like to mention my aunt, Jeanette Martin. She
was the political member of the family, and she taught me that
it doesn't cost anything to be nice to people.
And finally, I would like to give a short dedication at
this hearing to my oldest and dearest friend, who passed away
unexpectedly a month ago. If you knew Louie Smith, you would
love him, and I want to dedicate this hearing to him.
I thank you each for this honor, and I look forward to
answering your questions.
Senator Booker. Madam Chairwoman, he mentioned an
extraordinary wife. I just don't know of all the incredible
women that are out there who it is. Can he identify her? There
she is.
Senator Britt. And also, congratulations on your incredible
news, speaking of outstanding wives.
Senator Booker. I don't know about the judge and his
qualifications. I am looking forward to reading more about him,
but I do want to know how you keep a woman that is much better
than you and stay married to her, so I look forward to that.
Senator Britt. He just got engaged this weekend. It is a
whole thing.
Judge Chamberlin. Congratulations.
Senator Booker. Thank you very much.
Judge Chamberlin. And I outkicked my coverage.
Senator Booker. I did too, sir, as a football player,
former football player, as the Chairwoman's husband, I know
what that means.
Senator Britt. Congratulations, Senator Booker. Mr. LaCour.
STATEMENT OF EDMUND G. LaCOUR, JR., NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA
Mr. LaCour. Thank you, Senator Britt. Thank you to Chairman
Grassley, Ranking Member Durbin, other Members of the Committee
for having this hearing today. I'm deeply honored to be here.
I'd like to first thank Almighty God, to whom I owe all
good things. I would like to also thank President Donald Trump
for the great honor of this nomination. I've got a few people
to thank, including my lovely wife, who I think was taking my
boys out on a little tour of the Senate. She should be back
momentarily. Thank you as well to the dear friends of ours who
are keeping our two younger and noisier children while we are
up here in D.C. We love you all very much. Thank you to the
many family and friends who are here present and also watching
from afar, especially to my parents who always instilled in me
the value of developing my talents to serve others and who made
so much of that possible for me.
Finally, I would like to thank many former colleagues and
current colleagues of mine who helped shape me as a lawyer,
past colleagues at Baker Botts, Bancroft, and Kirkland, as well
as my current colleagues at the Alabama Attorney General's
Office who've set the bar so high as a lawyer--or as lawyers
and helped me to reach it. Thank you to the judge I clerked
for, Chief Judge Pryor, who has been just a phenomenal mentor
and example as a man and a jurist. And then finally to Attorney
General Steve Marshall, who gave me the opportunity to serve
our home State and has supported me in so many other ways since
then. Thank you.
Senator Britt. Yes, and your wife and boys have entered the
building.
Justice Lewis.
STATEMENT OF HON. WILLIAM W. LEWIS, NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA
Judge Lewis. Thank you, Madam Chair. I can't tell you what
an honor it is to be before this Committee. As a political
science major, I am very happy right now.
Also, Ranking Member Durbin, Senator Grassley, thank you
for allowing me to be here. I'd like to thank President Trump
for the nomination. I'd like to also thank Governor Ivey for
supporting me in my role as a State judge. And I'd also like to
thank the people of Alabama, who have pretty much unanimously
supported me throughout my political career.
We have a lot of brothers and sisters in my family, so in
the interest of time, I won't introduce all of my family
specifically, but all these folks in church on the front row
here are my family, and I am honored to have them here, as well
as my many friends and colleagues and even employees. Thank
you.
Senator Britt. Thank you very much.
Justice Maxwell.
STATEMENT OF HON. JAMES DONALD MAXWELL, II, NOMINEE TO SERVE AS
UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
MISSISSIPPI
Judge Maxwell. Am I on?
Senator Britt. You are.
Judge Maxwell. Senator Britt, Chairman Grassley, Ranking
Member Durbin, Members of the Committee, I want to thank you
for holding this meeting here today, and I want to give special
thanks to Senators Hyde-Smith and Senator Wicker for their kind
words and their support throughout this process. And I want to
thank President Trump for the nomination and for that honor.
It's been a dream of mine to serve on the Federal bench in the
Northern District of Mississippi.
They told us to keep our remarks brief, and I'm going to
try to do so, but I do have a few family members to recognize
and some special guests. And the first one, of course, that I
want to start with is my wife, Mindy Maxwell, who I actually
met in the Federal courthouse for the Northern District of
Mississippi while I was in law school. And we've been married
now for 23 years. And I want to say this to Senator Booker. I
can tell you beyond a shadow of any doubt that when the good
Lord put Mindy Maxwell on this planet, he didn't create another
woman like her, and she has been a very special wife, wonderful
to me, and a terrific mother to our children. She's also a
consummate professional, and, you know, she's also my best
friend. And I know that--and I congratulate you on your
wedding, and I hope that you have that same experience that
I've had with my wife, Mindy.
Senators, I wish that my kids were here today for you to be
able to meet them. They're both in college, hopefully in class
right now. My daughter, May, is a sophomore at Justice Lewis'
alma mater, Sewanee, in Tennessee, and my son, Trip, is playing
football. He's a quarterback. He's a redshirt sophomore, kind
of near your old stomping grounds. He's out in California
playing in Los Altos at Foothill Community College, at least he
was last night when I checked with him. I don't know if he's
hit the portal today, which is definitely a possibility.
[Laughter.]
Judge Maxwell. Moving on from that, Senators, my mother,
Bebe Maxwell, was not able to attend today. She would have
loved to have been here. I know she's watching on TV from
Derma, Mississippi, population of 900, probably on her knees
praying for me like she has done for most of my life. My
sister, Amanda, is watching from Houston, Texas.
And I have some special guests. My law clerk, Beth Archer,
is here. My judicial assistant, Ellen Ford, is here, and one of
our family friends, Blake Neely.
Before I conclude and close, I wanted to say a few words
about somebody who is no longer with us but who has been a
mentor throughout my life, and that's my father, Jim Maxwell.
He was a trial lawyer's trial lawyer. My rides to school as a
kid were a little bit different probably than most others. I
didn't get to control the radio. He did, and he played tapes of
the greats, Racehorse Haynes, Melvin Belli, Moe Levine, Percy
Foreman, and later on Gerry Spence. Looking back, I hated it at
the time, but right now, I'm glad he didn't change that dial.
Senators, just in closing, I want to thank you again for
this opportunity. I look forward to answering your questions.
Senator Britt. Thank you.
Mr. Mooty.
STATEMENT OF HAROLD D. MOOTY, III, NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA
Mr. Mooty. Senator Britt, Chairman Grassley, Ranking Member
Durbin, Members of the Committee, thank you for this
opportunity to appear before you today. I'd like to begin by
thanking President Donald Trump for the honor of nominating me
to the United States District Court in my home State of
Alabama.
To Senator Tuberville, thank you for those kind words
during the introduction.
To Senator Britt, God is good more than anyone else. It's
been your tireless service to this country that inspired me to
answer the call to serve. Thank you.
Senator Britt. Thank you.
Mr. Mooty. I'd like to, first, for 17 years of private
practice, I could spend all morning taking up too much time
thanking everyone. I just want to start with my family. My
mother and father are both here from Montgomery, along with my
brother. My father taught me what it means to be a lawyer and
how to treat other people with respect, and I know my brother
has learned similar lessons practicing law with my father.
My immediate family from Huntsville is here. My lovely
wife, beautiful and also a practicing attorney, and our two
middle school-aged children are here from Huntsville. And so
many others made the trip to D.C. to support my nomination. I'd
like to thank them for making the trip. And also, thank you to
those who are watching remotely for also supporting me through
this process.
Senator Britt, thank you again, and I look forward to
answering the Committee's questions.
Senator Britt. Thank you. I am going to reserve my time for
later in the hearing.
And Senator Durbin, I am going to go ahead and kick it to
you.
Senator Durbin. Thanks, Senator Britt. Appreciate it, and
thank you all for being here. I apologize for stepping away,
but Senator Grassley and I were actually on the Senate floor
conducting some business relative to the Committee, so we were
not taking lunch breaks. We were busy during that period of
time.
Mr. LaCour, you were Solicitor General for the State of
Alabama. Is that true?
Mr. LaCour. That's true, Senator.
Senator Durbin. And there came a time when you were
involved, I believe in 2023, in the drawing of maps for--were
they legislative or congressional districts?
Mr. LaCour. Senator, that case is still in active
litigation, and I am an attorney for my clients. I want to be
careful not to tread on any privileges. But there is some
evidence that came out in litigation that State lawyers were
advising State officials on issues of State law, which is
something that the Attorney General's Office in Alabama, and in
many States, does do with pending legislation.
Senator Durbin. Could you clarify, were these legislative
districts or congressional districts?
Mr. LaCour. Sorry, Senator. These were congressional
districts.
Senator Durbin. Okay. And the case is still pending?
Mr. LaCour. Yes, Senator. We have appealed to the U.S.
Supreme Court.
Senator Durbin. Public reporting and testimony revealed
that you played a significant role in working with the State
legislature to create maps that continue to disregard Federal
court orders and suppress the influence of Black voters. Would
you like to comment on that?
Mr. LaCour. Senator, yes, I would like to say, again, we
have arguments that we advanced in the case as to why that 2023
map is consistent with Section 2 of the Voting Rights Act and
with equal protection clauses demands that States not use race
to sort voters into different districts. And when it comes to
defiance of court orders, I don't think any court order has
been defied in that case. There was a court order in 2022, back
in January, a preliminary injunction entered against our
earlier 2021 plan, and that order was complied with to the
point where we got a stay from the U.S. Supreme Court.
Senator Durbin. I hate to interrupt you, but I am going to
ask a specific question so that we get to the heart of this.
State lawmakers said you helped draw the new map as solicitor
general in a room across from State legislatures. You pushed
for the inclusion of so-called legislative findings and helped
write talking points for them. Are you aware of that assertion?
Mr. LaCour. Senator, I'm aware of that evidence and those--
--
Senator Durbin. True?
Mr. LaCour [continuing]. Allegations. Senator, all I'm
going to say is what the evidence shows in the case because,
again, I'm an attorney that is still litigating. There are
privilege issues that I do not want to overstep.
Senator Durbin. In the case of Allen v. Milligan that went
before the U.S. Supreme Court, I understand in 2022 you argued
that Section 2 of the Voting Rights Act required evidence of
discriminatory intent to prove a violation. Do you understand
now that that is different than what the law says?
Mr. LaCour. Senator, we presented several arguments in that
case. I think the Supreme Court has agreed that intent is not
irrelevant under Section 2 of the Voting Rights Act. In that
case, we presented an argument that was similar to one that
Frank Easterbrook had adopted for the Seventh Circuit, that if
you're trying to determine whether a map is dilutive, it's
helpful to have a benchmark, a dilutive compared to what. And
we had argued that if a plan that is being attacked under
Section 2 of the Voting Rights Act looks like a map you might
expect from a race-neutral process, then it's not
discriminating against anyone on account of race. Ultimately,
the Supreme Court, by a 5-to-4 vote, did not adopt that
particular argument, but the litigation continues.
Senator Durbin. Judge Lewis, you have been on the bench
since 2016. The Alabama judicial canons state that ``It is
desirable that a judge or candidate for election to judicial
office endeavor not to be involved in the internal workings of
a political organization.'' You have served as a member of the
executive committee of the Elmore County political organization
since 2006, including chairman since 2018, and the State
party's executive committee since 2008. Why did you not follow
the recommendation of the Alabama judicial canons?
Judge Lewis. Senator, that was--it is a recommendation, but
I also checked with the ethics and, of course, the JIC, which
is our regulatory agency, and they were--they permitted me to
do that.
Senator Durbin. Pardon me? Who permitted you?
Judge Lewis. The Judicial Inquiry Commission, JIC. It's our
regulatory body. And we run partisan elections in Alabama. I'm
an elected official, so that was kind of a segue into my
political career.
Senator Durbin. Thank you. Senator Britt, I would like to
have an additional 60 seconds if you don't----
Senator Britt. Absolutely.
Senator Durbin [continuing]. Object.
Senator Britt. Absolutely.
Senator Durbin. Justice Maxwell, in Nash v. State, you
upheld a 12-year sentence for a defendant convicted of a
misdemeanor--12 years--convicted of a misdemeanor for
possessing a cell phone while in jail. You wrote, and I quote
in that decision, ``While obviously harsh, the sentence is not
grossly disproportionate.'' Twelve years in prison for a
misdemeanor possession of a cell phone. Please explain.
Judge Maxwell. Senator, first, I would like to clarify that
I was not the trial judge in that particular case, and this was
not a misdemeanor charge. It was a felony offense that was
charged by the district attorney, and our role as the
Mississippi Supreme Court was to decide whether that was a
lawful sentence within the parameters set by the legislature.
And it fell within the parameters that were set by the
Mississippi legislature, and it was a 9-to-0 decision by our
Supreme Court on that question, whether it was a lawful
sentence.
Senator Durbin. The defendant had a wife and three children
that depended on him, had been staying out of trouble with the
law for nearly a decade since his prior conviction. The crime
was victimless, and the facts suggest that his crime was
accidental and likely caused by a failure in booking
procedures, and yet you thought 12 years for a misdemeanor was
warranted?
Judge Maxwell. Senator, I did not impose my personal
thoughts about that particular sentence. What I did was follow
the letter of the law.
Senator Durbin. But what was the range of sentencing in
that----
Judge Maxwell. The range was up to 15 years in prison.
Senator Durbin. From what low number? 6 years, right?
Judge Maxwell. I'm not--I don't remember the minimum range.
We were just looking at----
Senator Durbin. I think it was 6.
Judge Maxwell [continuing]. Whether it was within the
parameters.
Senator Durbin. Twelve years for possession of a cell
phone.
Thank you, Madam Chair.
Senator Britt. Thank you, Senator Durbin. Senator Kennedy.
Senator Kennedy. Thank you, Madam Chair.
And congratulations, gentlemen. I thought I would just
start down here, and then move this way if thats' okay.
Judge, what is the rational basis test?
Judge Chamberlin. Senator, I believe the rational basis
test is going to be one of your least stringent tests, and
whether a law has a rational basis for the outcome intended or
the governmental interest that you're trying to obtain.
Senator Kennedy. Okay. What if the legislature--or the
Congress, as the case may be--doesn't list a reason? What if
they just pass the statute?
Judge Chamberlin. Senator, I would submit that that
probably happens many times, and I think it's the role of the
court--when determining such matters as a definition, I think
it's the role of the court to determine whether the usage of
that statute--using its wording in plain meaning, whether the
usage of that statute is going to reach the governmental
interest that you hope is obvious, but sometimes you have to
determine.
Senator Kennedy. So you just create the basis, the reason
for the statute?
Judge Chamberlin. I don't think that you create it,
Senator, but I don't think that most statutes--to be honest, I
don't think that they tell you what they are trying to
accomplish so much as they say this is the law. For example,
possession of a narcotic that's going to say it's illegal to
possess this. We determine if there's a rational basis that
forwards the ends of the governmental interest.
Senator Kennedy. Well, how do you determine if there is a
rational basis? Do you look at the statute, or do you look
behind the statute?
Judge Chamberlin. Well, I think that you always look at the
statute. Now, I think you also look at any other precedent or
case law that is interpreted to the statute. However, you look
to the language of the statute to determine what it does and
what effect that might have.
Senator Kennedy. Okay. Counselor, let's suppose that a
legislature passes a statute that says if you have a college
degree or a more advanced degree, you don't have to take a
driver's license test. And let's assume for a second that the
Federal court has jurisdiction over a challenge to the
constitutionality of that statute. What test are you going to
apply, Counselor?
Mr. LaCour. Senator, that would be a classification that
doesn't turn on any sort of protected characteristic, and so it
would be a rational basis test that would apply in that
instance.
Senator Kennedy. You don't see any suspect classification?
Mr. LaCour. No, Senator.
Senator Kennedy. You don't see any fundamental right?
Mr. LaCour. No, Senator.
Senator Kennedy. What if the legislature didn't provide--so
you would use the rational basis test?
Mr. LaCour. I would, Senator.
Senator Kennedy. And you would uphold that statute?
Mr. LaCour. I think there could be some rational basis that
a court could conceive of to justify that statute, and rational
basis is not----
Senator Kennedy. So you would invent the rational basis,
the reason for the statute?
Mr. LaCour. That's generally how the test has been applied
by the Supreme Court and by lower courts, and as a district
court judge, I would be bound by that Supreme Court precedent.
Senator Kennedy. Okay. Judge, tell me the difference, sir,
between notice pleading and fact pleading?
Judge Lewis. Notice pleading, of course, goes to your due
process issues under the 14th Amendment.
Senator Kennedy. What is the difference between notice
pleading and fact pleading? We use two systems----
Judge Lewis. Yes, sir.
Senator Kennedy [continuing]. In America, as you know.
Judge Lewis. Yes, sir. Notice pleading is based on--of
course, that goes under your jurisdiction--your personal
jurisdiction, and then the fact pleading, of course, goes into
your subject matter jurisdiction.
Senator Kennedy. What system does the Federal judiciary
use, notice or fact?
Judge Lewis. Fact.
Senator Kennedy. Okay. Judge let me--I am about out of
time. Can I have 30 more seconds, Madam Chair? You heard me
talk to the nominee for the Third Circuit about how she would
interpret the Constitution, and she said that the Constitution
should be interpreted according to its meaning, as understood
by the people in America at the time the Constitution was
passed. Do you agree with that?
Judge Maxwell. I do, Senator.
Senator Kennedy. Okay. Let me ask you what I asked her. How
do you square that with Brown v. Board of Education?
Judge Maxwell. I would adopt a lot of what she said,
actually. I believe the 14th Amendment, as it came in, you
know, addressed a lot of----
Senator Kennedy. The 14th Amendment was later.
Judge Maxwell. It was later. It was a----
Senator Britt. Can you turn your microphone on, please?
Thank you.
Judge Maxwell. Sorry about that. I believe Brown v. Board
of Education is directly decided.
Senator Kennedy. I do, too, but when my friends--and I am a
textualist as well, but when my friends say, well, we have to
interpret the Constitution in accordance with the way the
average American viewed the Constitution at the time, I say,
okay, it seems fair to me. Do you think that the average
American at that time looked at the Constitution and supported
and believed that it provided for racially integrated schools?
Do you think that was the majority view at the time?
Judge Maxwell. Senator, all I know is that Brown v. Board
of Education is good law, and it was correctly decided.
Senator Kennedy. And why do you think it was correctly
decided? I agree with you, but why?
Judge Maxwell. Well----
Senator Kennedy. If you interpret the Constitution by
looking at its public meaning at the time?
Judge Maxwell. Separate was not--it was inherently unequal,
not equal----
Senator Kennedy. It was what?
Judge Maxwell. I just don't believe that there is a--any
appetite in this country for any type of du jour type of
segregation. I believe that that case----
Senator Kennedy. At the time the Constitution was passed?
Judge Maxwell. I'm talking about right now. I believe that
it's good law----
Senator Kennedy. No, but I mean----
Judge Maxwell [continuing]. Senator.
Senator Kennedy. Okay. I have gone way, way over. I am
sorry, Counselor, I didn't get to you.
Mr. Mooty. No problem, Senator.
[Laughter.]
Senator Britt. Senator Blumenthal.
Senator Blumenthal. Thanks, Madam Chair.
Let me follow that line of questioning by asking all of
you, do you think Brown v. Board of Education was correctly
decided? We will go right down----
Judge Chamberlin. Senator, I believe, as a general rule, it
would be improper of us to comment on the validity or give a
thumbs up and down to most opinions. However, it's been
traditional among the nominees that have come before this
Committee regarding Brown v. Board of Education, and I will
follow that and State my opinion, which is I believe it was
correctly decided.
Senator Blumenthal. You do believe it was correctly
decided?
Judge Chamberlin. Yes, sir.
Mr. LaCour. Senator, I agree with what Justice Chamberlin
just said. Yes, Brown v. Board was correctly decided.
Senator Blumenthal. Thank you.
Judge Lewis. Senator, I am very thankful for Brown v. Board
of Education. I do believe it was correctly decided.
Judge Maxwell. Same answer.
Mr. Mooty. Same, Senator. I do believe Brown v. Board was
correctly decided.
Senator Blumenthal. Thank you. Let me ask then each of you,
do you believe that Loving v. Virginia was correctly decided?
Judge Chamberlin. Senator, I would preface with the same
comments about commenting on cases, but I think for the same
reason a moment ago that there are two cases, Brown v. Board of
Education and Loving v. Virginia that have been commented on
regularly, and I will maintain that tradition and state I do
agree with that opinion and believe it was rightfully decided.
Senator Blumenthal. Thank you.
Mr. LaCour. Yes, Senator. As a beneficiary of interracial
marriage, I also agree that Loving v. Virginia was correctly
decided.
Judge Lewis. Yes, Senator. I--again, I think there has been
precedent from prior nominees that those two specific cases we
are able to comment on, and I do believe it was correctly
decided.
Judge Maxwell. Senator, I believe it was correctly decided.
Mr. Mooty. The same, Senator. I do believe Loving v.
Virginia was correctly decided.
Senator Blumenthal. Let's go to another case, Obergefell v.
Hodges.
Judge Chamberlin. Senator, as I began a moment ago when you
asked about Brown v. Board of Education, I would first say it's
improper to comment on whether these decisions were wise, and
our opinion as lower court judges below the Supreme Court, of
course, I think it would be improper for us to comment on that.
I did make exceptions for two cases because that has been
traditional before this Committee, but I do have to limit it to
that and will be unable to respond to the question.
Senator Blumenthal. So on what basis do you distinguish
Brown v. Board of Education and Loving v. Virginia from
Obergefell? They are both well-established, long-accepted
precedents of the U.S. Supreme Court. Do you think that Loving
and Brown were correctly decided, but you are unwilling to
comment on Obergefell?
Judge Chamberlin. Senator, I simply distinguish those
because it has been traditional among nominees to respond
regarding Brown v. Board of Education and Loving v. Virginia.
Senator Blumenthal. Well, I wouldn't say--if I may
interrupt with all due respect----
Judge Chamberlin. Yes.
Senator Blumenthal [continuing]. I wouldn't say it is
traditional. I have just been asking this question for the last
couple of years, and that happens to be the way nominees
respond. They are willing to comment on Loving and Brown but
not on Obergefell. We can go on to Griswold. There is no
tradition here. I am asking you as an individual and a nominee
for the United States District Court, do you think that
Obergefell was correctly decided?
Judge Chamberlin. Well, Senator, as I said a moment ago, it
is the better practice not to comment on the wisdom or
correctness of these decisions. As you just stated, it's been
asked about these cases for a period of time, and I'm merely
following the line of tradition in answering the cases
regarding Brown and Loving.
Senator Blumenthal. So, essentially--and again, I don't
mean to say this with any disrespect to any of you, you are
just doing what has worked for the previous nominees?
Judge Chamberlin. No, sir, I'm just following what they
have done as I felt those were answers that have been----
Senator Blumenthal. Okay.
Judge Chamberlin [continuing]. Acceptable.
Senator Blumenthal. I will give others the opportunity to
comment on Obergefell as well.
Mr. LaCour. Senator, Obergefell is binding precedent of the
U.S. Supreme Court, and I would apply it faithfully if I am so
fortunate as to become a Federal District Court judge.
Senator Blumenthal. Do you think it was correctly decided?
Mr. LaCour. Senator, just like Justice Kagan and Justice
Jackson and other nominees who appeared before this court, I
would not want to be seen as giving a preview as to how I might
decide any related case, which I think if I were to give a
thumbs up or thumbs down or otherwise grade the papers of the
U.S. Supreme Court----
Senator Blumenthal. Well, I am not going to argue with any
of the nominees, but there is nothing pending right now that
would involve your, in effect, commenting on something that is
potentially before a court where you would serve.
Let me go on to the rest of you and just give you an
opportunity to respond.
Judge Lewis. Justice--Senator, my response will echo the
other two colleagues, but I will say, as a district court, what
does matter is binding Supreme Court precedent. And as long as
the Supreme Court precedent--looking at it analytically from a
legal perspective, it is right. And so as long as that's the
precedent, then yes, we will follow it.
Senator Blumenthal. Thank you.
Judge Maxwell. Senator, it's binding precedent, and I would
follow it if confirmed to the district court.
Mr. Mooty. Senator, I agree with my colleagues. I will
follow all binding Supreme Court precedent, including
Obergefell, if I am fortunate enough to be confirmed to this
position.
Senator Blumenthal. Thank you all for your responses to my
questions. And thank you, Madam Chair.
Senator Britt. Senator Moody.
Senator Moody. Thank you, Madam Chair. That is fun to say.
And I apologize for my colleague, Senator Kennedy, who thinks
he is a law professor during these hearings and launches into
the Socratic method, probably gave you nightmares and harkened
back to law school. He indeed takes very seriously this
Committee's role in making sure we have the highest caliber of
those that are confirmed for these lifetime posts. So we
certainly thank the President for nominating such well-
qualified and hardworking individuals whose accomplishments are
great, but from what I can tell, your commitment to the
Constitution and the rule of law may be even greater. And so I
am very proud to be here today and participate on this
Committee.
I have actually, as you can see, I am the newest Member of
this Committee, but yet I have served in the judiciary as a
judge and in the other branches of Government. I was a State
attorney general and a Federal prosecutor at one point, so I
appreciate the breadth of experience that this panel
represents. Thank you very much.
But I am not letting you off the hook, Mooty, and I think
it is only right, since I am Senator Moody, to question
Attorney Mooty. One of the biggest threats, I think, right now
to our republic is the delicate balance of power that we have
in our three separate branches. And again, having served in
every branch, I think for the continued strength and prosperity
of this Nation and the freedom of our people, we have to always
go back to a very strict respect of the scope of power of each
of the branches.
And from Thomas Jefferson to Abraham Lincoln, there has
always been a concern of judicial tyranny and that if you have
a judge or a body that is consistently given the task of
checking the power of the legislative branch or checking the
power of the executive branch, in turn, that unchecked judicial
power may evolve into a type of judicial tyranny or oligarchy.
What concerns me is the increasing perception by the public
of the judicial branch because I believe the failure of many
historical Nation States started when people stopped trusting
the judicial branch, started inferring that the judicial branch
cared more about policy preferences or political influence than
they did about reason and analysis.
And so I think right now, the biggest challenge we face as
a Nation is the public's perception of this third branch and
the danger that that presents to what was envisioned for this
country by our Founders. And we celebrate 250 years next year,
what our future looks like as a Nation.
And so you will be given a lifetime appointment. Many have
gone on to experience that horrible sickness called robe-itis.
I have seen it many times. But I think where the danger becomes
is where that overtakes the commitment to go back to what your
duty is first and foremost as a judge, an independent judge
with the job of using the Constitution and the law that is
given to you independently without any bias.
And so, I would like to hear--and we will start with you,
Mr. Mooty, and as far as I can get down the line--how do you
believe your judicial philosophy or your nomination and
ultimate confirmation will allow us to restore and ensure
public trust in the judiciary?
Mr. Mooty. Thank you, Senator. I am fully committed to this
body to faithfully apply the law of the land, the Constitution,
and all Federal law faithfully and impartially and treat all
persons who appear before me with dignity and respect and to
give each case in controversy, as Article III specifies, the
attention that it is due.
And I will add, this body conducted a hearing on the
judicial branch being the least dangerous branch, as specified
by Alexander Hamilton in Federalist Paper 78. It's only the
least dangerous branch, Senator, if the judges, if we're
fortunate enough to be confirmed, remember our role, Senator,
as one of three separate but equal branches of Government and
not attempting to legislate from the bench. And I'm committed
not to do that if I'm fortunate enough to be confirmed.
Senator Moody. And I see I am out of time, but I thought it
was only fitting I started there. Everybody else starts with
you, you poor thing.
[Laughter.]
Madam Chair.
Senator Britt. Thank you so much, Senator Moody.
And, you know, on that note, I will go ahead and start with
him as well so that way we can double up.
Look, each of you have outstanding and unique
qualifications to serve as Federal judges. Whether it be as
judges or advocates, each of you bring the necessary and
important experience to the Federal judiciary.
Mr. Mooty, I will start with you. Can you speak to what
experiences you have had over the course of your career that
make you feel most qualified to serve in the position in which
you have been nominated? And then we will go all the way down
to Justice Chamberlin.
Mr. Mooty. Thank you, Senator. I grew up in the courtroom.
I was born on my dad's first day of his last semester in law
school. I remember watching him try cases at a very young age.
I remember working as a runner in his law firm and deciding I
wanted to be not just a lawyer but a litigator in the courtroom
at a very young age. And after 17 years in private practice and
trying cases in Federal and State courts, appearing in Federal
and State courts across the country, I feel like I was born to
do this, Senator, and serve the public and my country in a
manner that I feel like God has set me on a path to be back in
the courtroom but for a lifetime appointment serving the public
in a country that's given me so much, Senator. Thank you.
Senator Britt. Thank you.
Judge Maxwell. Senator, to echo Mr. Mooty's comments, I was
also raised by a lawyer, and he taught me at an early age the
important aspects of justice. I said riding to schools those
mornings, we were listening to trial lawyers lecture, and I've
taken that with me. I've been very blessed to have my own legal
career kind of based on his shoulders.
For the past 16 years, I've served as a judge on our
State's highest courts, and I've had the ability to decide
basically every aspect of criminal and civil case. I've been
around some excellent mentors on both the State Supreme Court
and the Court of Appeals. But to truly get down to answer your
question, what kind of separates me and uniquely qualifies me
to serve in this role is the fact that I have been a Federal
prosecutor in the Northern District of Mississippi, and it's
where I got--it's where I cut my teeth as a lawyer. I learned a
lot of lessons from the judges there, some tremendous judges,
Neal Biggers, Allen Pepper, Glen Davidson, Mike Mills. I
learned lessons and also took a lot of lumps, and that is a
part of the experience.
We've heard a lot of questions about policy, about the
Constitution, but what it gets down to as a judge is when you
walk in that courtroom, can you not only call balls and strikes
like we have always heard the analogy from Chief Justice
Roberts, but can you have a consistent strike zone for all the
parties? What's a strike for one lawyer or one party can't be a
ball for another. And I can submit to this Committee that if
I'm confirmed to this position, it would be like coming home to
that Federal family in the Northern District of Mississippi.
Senator Britt. Thank you. Justice Lewis.
Judge Lewis. Senator, I come from a background where I was
the first person in my family to graduate from college. We came
from a meager background. And when I go to court, especially in
the early years of my legal profession, I saw myself in a lot
of clients that came through there, not necessarily the
criminal ones, but just in general. And that's one of the
things that really has shaped my legal career. I believe that--
and my judicial philosophy. I believe that everybody that comes
into that court deserves to have their voice heard, regardless
of where they are on the issues, regardless of where they come
from, regardless of what they look like, regardless of who they
are.
I was pretty much--I pretty much spent just about every
minute of my legal career as an attorney in the courtroom. I
practiced in civil litigation. I practiced in criminal
litigation. I practiced as a prosecutor, a defense attorney. I
handled civil rights cases. I handled civil cases. I've
practiced in three States. And so I've got a broad background
that I bring with me to this potential judgeship.
But then also, those experiences as a lawyer factored into
the way I handled myself and carried myself as a judge. As a
circuit judge, my circuit was one of the busiest circuits in
the State of Alabama. I handled pretty much more cases in my
circuit as any circuit judge in the State based on our
caseload. And what that taught me was to manage dockets
efficiently but also to make sure that everybody did have their
voice heard.
When I went to the appellate level, it was much different
because then I was in a position where I was able to be
analytical. I was able to research cases. It also gave me the
opportunity to see how other judges in the State did things,
what worked, what didn't, and how they treated people as well.
And then when I became a supreme court justice, the focus
shifted. Of course, I was still working on trying to get a
consensus. As a trial court judge, what I say goes, and if you
don't like it, appeal, right? But then as a--as an appellate
judge, you've got to get a consensus. You've got to get other
folks to gravitate to your issues. At least you have to try to.
And that helped hone my skills in being analytical with legal
arguments and things of that nature.
And also, as a supreme court justice, we're dealing more
with State and even to an extent Federal policy. And so I have
a broad background on every level of the legal profession, and
I believe that will be very beneficial if I am to be confirmed
as a judicial nominee.
Senator Britt. Thank you. Mr. LaCour.
Mr. LaCour. Thank you, Senator Britt. I've been fortunate
in my career to get to cover a broad array of legal issues in a
broad array of venues from the Northern District of California
to the Southern District of New York, from the Middle and
Northern Districts of Alabama all the way up to the U.S.
Supreme Court, litigating nearly every one of the Bill of
Rights and many other issues as well. And I think that's given
me a good experience in terms of being able to get a new issue,
get up to speed quickly, try to get the right answer, and then
move on, and I think that's a really important skill for a
judge to have, to be able to master an area of the law quickly
so they can provide justice both by getting to the answer that
the law demands but also getting an answer to the parties
before you quickly so they can either appeal or move on with
their lives. And so that's something that I hope to be able to
bring is a degree of skill and a lot of hard work to the bench
if I'm fortunate enough to be confirmed.
Senator Britt. Thank you. Justice Chamberlin.
Judge Chamberlin. Senator, first, I hope I'm not out of
line if I correct a terrible omission from earlier today. I did
not mention my father, who passed away in December, and his
91st birthday would have been on Labor Day. He would have been
so proud today.
Senator Britt. Certainly.
Judge Chamberlin. To answer your question, I did not grow
up the child of a lawyer. My father was a truck driver. My
mother worked an assembly line. My earliest legal influences
were Perry Mason and Ben Matlock.
Senator Britt. I like it.
Judge Chamberlin. But my father and mother instilled a
sense of the necessity of education in us, and I'm happy to
have obviously obtained a law degree.
My experience that most prepares me for this job is that I
served 12 years as a circuit court judge. That's a trial judge
level for the State courts in the State of Mississippi. I've
run a courtroom. I've run a docket. I know the appropriate
judicial temperament. I know the appropriate judicial demeanor,
and I would hope to be able to bring those to the job if I'm
fortunate enough to be confirmed.
Senator Britt. Thank you very much.
I am out of time, but the beauty of being the Chair is you
get to take more time. So I'm going to come right back across
just very quickly if you don't mind answering, what qualities
do you have that you find important for a Federal judge to
aspire to and that you hope to emulate on the Federal bench?
And many of you may have referenced this in your previous
answer, which is fine for you to reference back to that. But we
will start with you, Justice Chamberlin.
Judge Chamberlin. As a U.S. district court judge nominee
and for a U.S. district court position, first would be with any
judicial position, integrity. I think integrity is about as
important as it gets, of course a dedication to the law, and an
appropriate--for reasons I did just mention, appropriate
judicial demeanor and appropriate judicial temperament.
Senator Britt. Excellent. Mr. LaCour.
Mr. LaCour. So I'd like to think that I've learned from my
former boss, Chief Judge Pryor, the value of, as I mentioned
before, hard work. He recently served--or was commemorated for
serving 20 years on the 11th Circuit, and several of his
colleagues had commented in the Alabama Law Review that there
were few judges as hardworking as him. He's well known as a
sharp legal analyst, and I hope I can be the same. But in terms
of just getting opinions out the door and getting justice to
the parties is something that I've admired and hope to emulate.
Senator Britt. Thank you. Justice Lewis.
Judge Lewis. Yes, Senator. Work ethic and integrity is what
I think is the primary characteristic of a judge. I believe
that my long legal career has taught me that most people,
regardless of where they are on the issue, when they leave a
courtroom, it's my job as a judge to make sure that they know
that the system has worked, maybe not in their favor, but in
the fact that they have had their day in court, have had their
say, and feel like the system is working for them.
And I think Senator Moody touched on it a little bit, the
perception of the judiciary is in a State that concerns me, and
I believe that, as a district judge, it's our role as being
the--on the Federal level that has the most access to the
public to instill that confidence in everyone that this system
works for everyone, whether it be a traffic ticket or a capital
murder litigation, which I've been involved in on numerous
occasions as well, at the end of the day, that person needs to
feel like the system is there to hear them and make them feel
like they are a part of this country.
Senator Britt. Justice Maxwell.
Judge Maxwell. Senator, I believe that integrity is
paramount. Respect for the litigants before you is extremely
important. And another quality that hasn't been mentioned yet
is courage. Judges have to have the courage to make difficult
decisions. You can't just put your, you know, finger in the air
and check the pulse of what's going out there with your
constituents because we only really have one constituent, and
that is to the law, maybe, too, to the Constitution of the
United States. And judges cannot push the law where they want
it to go, or we all get to the wrong place. We have to follow
the law, and if we do that, everyone in this room is going to
end up in the right place.
Senator Britt. Thank you. And the last word of the day to
Mr. Mooty.
Mr. Mooty. Thank you, Senator. My colleagues have given
excellent answers to this question, and I don't want to repeat
any of their attributes, so to give a different one while
adopting all of theirs, preparedness, Senator. I've practiced
for long enough to know that a lawyer and their client can tell
when a judge is not prepared for a hearing or for a trial or
for an appearance. I've learned from a lot of great mentors,
know what you can control. And I teach my young litigation
associates that you can control your level of preparedness when
you walk into a courtroom, and that's something that I've tried
to do every single time I set foot in the courtroom is make
sure I'm the most prepared. I would take that to the bench,
Senator, and instill a level of confidence not just with the
lawyers but with the parties themselves. This judge is
prepared, and the preparedness shows respect, and the
preparedness shows integrity, Senator. Thank you.
Senator Britt. Thank you so much, Mr. Mooty.
Well, thank you all for your time today. Congratulations on
your nomination. Congratulations to your families. We are
thrilled to have each and every one of you here with us. Thank
you to the nominees, obviously, for your testimony today.
Written questions for the record may be submitted up until
September 10 at 5 p.m., of which the quicker you get back your
answers, the faster we get to have an opportunity to put that
before the full Committee.
And with that, thank you again, and this hearing is
adjourned.
[Whereupon, at 1:14 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
A P P E N D I X
The following submissions are available at:
https://www.govinfo.gov/content/pkg/CHRG-119shrg61890/pdf/CHRG-
119shrg
61890-add1.pdf
Submitted by Ranking Member Durbin:
Alliance for Justice, Opposition to Chamberlin, letter........... 2
Alliance for Justice, Opposition to LaCour, letter............... 4
Alliance for Justice, Opposition to Mascott, letter.............. 6
National Women's Law Center, Opposition to Mascott (NWLC), letter 9
People For the American Way (PFAW), Opposition to LaCour, letter. 17
People For the American Way (PFAW), Opposition to Mascott, letter 21
[all]