    [Senate Hearing 119-212]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 119-212

                  CONFIRMATION HEARING ON FEDERAL APPOINTMENTS

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED NINETEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  JUNE 4, 2025

                                   __________

                              Serial No. J-119-47

                                   __________

             Printed for the use of the Committee on the Judiciary

                     [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                            www.judiciary.senate.gov
                                www.govinfo.gov

                                   ______

                     U.S. GOVERNMENT PUBLISHING OFFICE

    61-981                    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

                                  ----------

                              OPENING STATEMENTS

                                                                       Page

    Grassley, Hon. Charles E.........................................     1
    Durbin, Hon. Richard J...........................................     3
    Hawley, Hon. Josh................................................     8
    Blackburn, Hon. Marsha...........................................     6
    Schmitt, Hon. Eric...............................................     9

                              VISITING INTRODUCERS

    Hagerty, Hon. Bill, U.S. Senator from Tennessee..................     6

                                    NOMINEES

    Bluestone, Zachary M.............................................    39
        Questionnaire................................................    55
        Responses to written questions...............................    93
        Additional materials.........................................   159

    Divine, Joshua M.................................................    40
        Questionnaire................................................   166
        Responses to written questions...............................   224
        Additional materials.........................................   302

    Hermandorfer, Whitney D..........................................    11
        Questionnaire................................................   313
        Responses to written questions...............................   363
        Additional materials.........................................   448

    Lanahan, Maria A.................................................    41
        Questionnaire................................................   487
        Responses to written questions...............................   523

    Stevens, Cristian M..............................................    42
        Questionnaire................................................   587
        Responses to written questions...............................   639

                                    APPENDIX

    Items submitted for the record...................................   705

                  CONFIRMATION HEARING ON FEDERAL APPOINTMENTS

                                  ----------

                            WEDNESDAY, JUNE 4, 2025

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice at 10:18 a.m., in
    Room 216, Hart Senate Office Building, Hon. Charles E.
    Grassley, Chairman of the Committee, presiding.
        Present: Senators Grassley [presiding], Lee, Cruz, Hawley,
    Kennedy, Blackburn, Schmitt, Moody, Durbin, Whitehouse,
    Klobuchar, Coons, Padilla, Welch, and Schiff.
        Also present: Senator Hagerty.

            OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
                 A U.S. SENATOR FROM THE STATE OF IOWA

        Chairman Grassley. Good morning, everybody. Today we'll
    consider five impressive judicial nominees. On our first panel,
    we'll hear from Whitney Hermandorfer, nominee for circuit judge
    for the Tennessee seat on the Sixth Circuit. On our second
    panel, we'll hear from four district court nominees; Joshua
    Divine, to the Eastern and Western District of Missouri,
    Zachary Bluestone, Maria Lanahan, and Christian Stevens to be
    Eastern District of Missouri. I'm grateful to my colleague,
    Senator Hawley and Schmitt for agreeing to co-chair this
    hearing when I leave in a few minutes.
        The exercise of our constitutional advice and consent role
    for judicial nominations is one of the most important functions
    of our Committee for the obvious reason that Article 3 judges
    serve for life, and the judges we confirm will impact the lives
    of Americans for decades to come. I'm pleased that the
    President has sent five strong choices to the Senate for our
    first hearing.
        Although the controversial moments in our Committee often
    draw the most attention, it's important to remember that we
    have a long tradition of cooperation across the aisle even in
    the face of heated political differences. Over the last 4
    years, the Biden Administration put forward many controversial
    judicial nominees, most would not have been the choice of any
    Republican on the Committee, but elections, as we all know,
    have consequences.
        Despite our disagreements with their judicial philosophy, a
    substantial majority of the judicial nominees during the last
    administration received bipartisan support, and as my colleague
    on my left here now, then he was Chairman of the Committee,
    Senator Durbin, ``We are proud of the fact that these nominees
    have bipartisan support. More than 80 percent of them received
    bipartisan support.'' I'm proud of that as well, and I hope
    that we can have the same bipartisan support for highly
    qualified nominees before us.
        I worry that partisanship will hamper these efforts.
    Recently, the Ranking Member has raised the prospect of a
    blanket hold on U.S. attorney nominees. I hope that we can work
    together to avoid this. Confirming U.S. attorneys by roll call
    will consume more than 230 hours of Senate floor time and will
    keep us from working on other important matters for the
    American people. There is a longstanding precedent that U.S.
    attorneys are confirmed by voice vote, or unanimous consent
    with few exceptions.
        I understand and know where some Democrats are coming from,
    and that is because our former Republican colleagues held
    several U.S. attorneys at the end of the last administration.
    But make no mistake, that this isn't what you can legitimately
    call a precedent for blanket obstruction at the beginning of an
    administration before even a single one of these 93 U.S.
    attorneys have been filled.
        Holds should be used selectively, and this Senator has used
    holds as well. Blanket holds intended to wholly obstruct the
    confirmation process, or misguided and threaten to undermine
    the Senate's advice and consent. As the Ranking Member said in
    the last Congress, if the obstruction of U.S. attorneys is
    carried out, ``public safety will suffer across the United
    States.'' I agree with this sentiment and think that we should
    not place politics over keeping the Americans safe.
        The Ranking Member, and I agree that as he says, ``There
    cannot be one set of rules for Republicans and another set for
    Democrats,'' or as I would like to say, ``What's good for the
    goose is good for the gander,'' but we've also shouldn't take a
    single Senator's actions as setting precedent for Senate-wide
    precedent. This will result in inevitable and destructive race
    to the bottom.
        As Chairman and Ranking Member, I hope together we can
    agree to maintain the traditions, so the Senate will work. We
    both remain committed to the blue slip despite pressure from
    respective sides. I hope that we can also remain committed to
    moving qualified U.S. attorneys efficiently and using holds
    only on an individual basis or as last resort.
        Turning to our nominees now, today's business, we'll hear
    from five highly qualified lawyers. I'll leave it to the
    introducers to describe their qualifications in depth, but I'll
    briefly comment about the nominee to be Circuit Judge.
        Whitney Hermandorfer is uniquely impressive even by high
    standards of this Committee. She's clerked for three of the
    sitting Supreme Court justices. She was valedictorian of her
    law school, and she was co-captain of the women's basketball
    team at Princeton. After one hard fought loss, her college
    basketball coach said simply, ``She isn't afraid of anybody.''
        Ms. Hermandorfer's grit is not limited to the basketball
    court. As a director of the U.S. Strategic Litigation Unit in
    Tennessee, she's led major cases on important issues of civil
    rights and the separation of powers. She is widely praised by
    practitioners across the political spectrum for her brilliant
    legal mind, hard work, kindness, and professionalism.
        Our district court nominees are also highly qualified, and
    I'll let Senator Hawley and Schmitt speak about them and their
    qualifications. We look forward to hearing from each of them
    today.
        Now, Senator Ranking Member Durbin, Senator Durbin.

             OPENING STATEMENT OF HON. RICHARD J. DURBIN,
               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Senator Durbin. Thanks, Mr. Chairman. This is an historic
    meeting for the approval of Federal judges. We're doing things
    differently today than they've ever been done since I served in
    the U.S. Senate. What's happened? Well, a decision was made
    last week by Attorney General Bondi that the Justice Department
    would no longer cooperate with the American Bar Association
    rating process for judicial nominees.
        What's going on here? Why is this being changed so
    abruptly? Well, you look back and you can understand it, if you
    look at the history of it. During the first term of Donald
    Trump, the names were submitted to the American Bar Association
    of each of his judicial nominees. Nine of those nominees were
    found unqualified to serve on the Federal bench by the American
    Bar Association. Yet, President Trump in his first term,
    pursued anyway. Eight of them ended up being approved for the
    bench. What is that all about?
        The American Bar Association has a process of going to the
    peers and colleagues of the nominees and asking; what was your
    experience in the courtroom as a judge, as co-counsel, as
    opposing counsel, what did you think this individual was doing
    in their professional capacity? Were they prepared for the
    case? Did they comport themselves honorably? Just basic
    questions. And the nominees then are subject to rating by the
    American Bar Association; qualified, well-qualified,
    unqualified.
        Under Trump's first term, as I mentioned, 9 or 10 were
    found unqualified. Eight of them were approved for lifetime
    appointments to the Federal bench. All right, so Durbin, what
    about your nominees under President Biden? 235 were approved by
    this Committee? Were any of them found unqualified by the
    American Bar Association? Not one.
        So, the difference is the Attorney General has decided to
    protect against the vulnerability that some nominees, maybe
    even some today might have been find found unqualified. I think
    that's a mistake. I think that kind of professional valuation,
    which has been going on under, under Presidents of both
    political parties for decades should continue. But the Trump
    administration second term has decided the ABA is no longer
    welcome to review judicial nominees. That's a mistake.
        And then there's the Trump Administration's rejection of
    the Federalist Society. The Federalist Society. I asked this
    question for 20 years, literally 20 years. What's going on
    here? Why is this the secret handshake of all the Republican
    nominees that they belong to the Federalist Society created by
    Leonard Leo and others?
        What does it mean? A lot of the nominees would say, oh,
    it's just a free lunch. Go and listen to a lecture. It doesn't
    mean a thing, but it turns out to be a recurring pattern that
    if you're going to be considered as a serious nominee on the
    Republican side, you've got to be part of the Federalist
    Society.
        But guess what happened? Just recently last week, President
    Trump wrote on Truth Social, ``I am so disappointed in the
    Federalist Society because of the bad advice they gave me on
    numerous judicial nominees.'' From President Trump. He also
    called one of the organization's longtime leaders, Leonard Leo,
    ``a real sleazebag who probably hates America.'' From President
    Trump's own mouth. Yet, during his first Presidential campaign,
    then candidate Trump quote said, we're going to have great
    judges, conservative, all picked by the Federalist Society.
        President Trump's mindless inconsistencies are a classic
    example of situation ethics. But when they toss out the
    American Bar Association and they toss out the Federalist
    Society, they don't want anyone looking over the shoulders of
    the nominees to find out what they believe, what they've said,
    what they've done. I don't get it. I don't think that's in the
    best interest of picking the right people for the judiciary of
    either political party.
        And then there's this issue that the Chairman raised. And
    he and I are friends, so this is not a personal thing. We have
    been wrestling with this, at least between us, in conversation
    for weeks about how to resolve it. Here's what it boils down
    to. Trump's first term, 94 U.S. attorney appointees, Democrats
    in majority in the Senate. ``Boy, that must have been a battle
    royal.'' It was not. They were all approved by voice vote. In
    the Committee, voice vote on the floor, because that was a
    custom in practice.
        We decided that we'd do a background check through the FBI
    of these U.S. attorney nominees, and then basically agreed to
    them on a bipartisan basis. Things were going along pretty
    well. I think both political parties felt that it was a fair
    process and then something happened. One of the Senators from
    the State of Ohio, JD Vance, who went on to become Vice-
    President, decided to object to these voice votes on the floor
    of the U.S. Senate.
        So, he wanted to put 2 or 3 days of procedure into the
    choice of each of the U.S. attorneys. It stopped the process as
    the Chairman just noted, when you start taking 3 days or 4 days
    for 93 nominees, you start eating up the calendar of the Senate
    and they can't do anything else.
        I appealed to JD Vance, then-Senator at the time, saying
    you don't want to do this. To put an end to this process is
    just not appropriate, and it's not fair to these nominees.
    You're not objecting to any single person being unqualified.
    You're saying that every one of Biden's nominees has to go
    through a 3-or 4-day process on the floor. It it's just
    unmanageable, and it's unreasonable.''
        And guess what? The tables turn. There comes a time when
    you want to move these by voice vote and we're going to have to
    say, as Democrats, we're going to follow the Vance precedent.
    So, it isn't just the fact that JD Vance started it, but I
    would go to the floor four different times asking for unanimous
    consent for him to reconsider this position. ``Don't do this.
    Stick with the original approach we used under President Trump
    at first term and President Biden as well.'' He would not budge
    an inch.
        And when he was off campaigning for a Vice-President, a
    group of Republican Senators, I'm not going to name names, but
    they're all a matter of record, joined on the floor to sustain
    this Vance precedent. I've been saying to Chairman Grassley,
    you expect me to just look the other way. Now, U.S. attorneys
    are coming before us and I'm supposed to say, ``Well, let's go
    back to voice votes again.''
        One set of rules for Democrats, another set of rules for
    Republicans. That's the mess we're in. We can work this out and
    we should. I've got to hold on one nominee from Florida. I've
    spoken to both Florida Senators about it. It isn't personal.
    We've got to find a way out of this that is fair and
    bipartisan, and that we're going to stick with for both
    political parties. You just can't change the rules overnight.
    And that's what we're faced with.
        So, Mr. Chairman, this is more than just the ordinary
    meeting of the nominees to be considered by this Committee.
    This is the first time there's no ABA involvement. The
    Federalist Society is now a suspect sleazebag group when used
    to be the required approval before anyone's taken seriously.
    And we still have to resolve the mess left behind by Vice
    President Vance.
        Chairman Grassley. I don't expect you to know this, but I
    had at least one conversation with----
        Senator Durbin. You want me to hear you?
        Chairman Grassley [continuing]. Yes, but I wanted to--I
    want to tell everybody. I want to, at least to my colleagues
    here, that I had at least one conversation with one of the
    Senators other than Vance that was holding up nominations
    because I thought this set a bad precedent. Maybe you and I can
    work it out. Can we?
        Senator Durbin. I hope so.
        Chairman Grassley. Okay. I do have a short rebuttal to what
    you said about the ABA. The ABA can still send letters to the
    Committee, just like any other organization. But Attorney
    General Bondi's decision to no longer provide them special
    access to nominees is hardly surprising. For decades,
    Republicans have criticized the progressive bias of the ABA.
    These complaints aren't new and are why the Bush administration
    stopped conferring with the ABA to select nominees.
        Examples of bias by the ABA rating abound. Just last
    Congress, the ABA told us that the Biden appointee, Charnelle
    Bjelkengren, was ``qualified'' to be a Federal judge. At the
    hearing, she didn't even know what the Article 2 of the
    Constitution was. The same ABA famously told us that Republican
    appointee, Judge Frank Easterbrook, a highly respected law
    professor who had argued 20 cases before the Supreme Court was
    in some members estimation, not qualified.
        The ABA has chosen to act as a partisan progressive
    organization. They advocate for transgender causes, racist DEI
    policies, and the outlandish assertion that the Equal Rights
    Amendment is now part of the Constitution. The ABA has recently
    sued the Trump administration for cutting USAID funding, and
    its current President has publicly attacked the administration.
        The ABAs political bias is obvious and has been for years.
    It's no surprise that the current administration doesn't trust
    the ABA to be a neutral arbiter of the nominees' appointments.
        Now, we'll go to Senator Blackburn to introduce the nominee
    from her State.

              OPENING STATEMENT OF HON. MARSHA BLACKBURN,
               A U.S. SENATOR FROM THE STATE OF TENNESSEE

        Senator Blackburn. Thank you, Mr. Chairman, and I am
    absolutely so pleased to introduce Whitney Hermandorfer. She is
    President Trump's nominee to fill the vacancy on the Sixth
    Circuit Court of Appeals. She is his very first judicial
    nominee for his second term, and I am thrilled that we have
    such an outstanding and qualified nominee to come before us.
        Whitney is a native Tennessean, and she grew up in the
    Nashville area. She attended the Harpeth Hall School where she
    was a standout, and today, we have a lot of those alums
    watching to see Whitney as she is here before our Committee.
    She received her BA magna cum laude from Princeton, where she
    was co-captain of the women's varsity basketball team. She
    received her JD from George Washington University, and as you
    mentioned Mr. Chairman, she graduated first in her class, and
    she served as editor-in-chief of the Law Review.
        So, she is smart, she is athletic, she is well-rounded, she
    is accomplished, and that is repeated in her career. After she
    finished law school, she was an associate at Williams &
    Connolly where her practice mainly involved appellate
    litigation, and regulatory and administrative law. In addition,
    she has clerked for four Federal judges, including three
    Supreme Court justices; Justice Alito, Justice Barrett, and
    then-Judge Kavanaugh when he was on the DC Circuit.
        After clerking, Whitney joined Williams & Connolly, again,
    from 2021 to 23. In 23, Whitney also served as an adjunct
    professor at her alma mater, George Washington University Law
    School. Since 2023, Whitney has served as director of the
    Strategic Litigation Unit in the Office of Tennessee Attorney
    General Jonathan Skrmetti. In that role, Whitney leads a team
    of talented attorneys in the AGs office fighting to protect the
    interest of Tennesseans and our State, and active policies.
        In his second term, President Trump is looking to fill our
    Federal judiciary with the best of the best. There is no doubt
    in my mind that Whitney fits this mold. She will be a tireless
    advocate for our Constitution, someone who will apply the law
    as it is written, not try to rewrite the law or the
    Constitution from the bench, and she's imminently qualified to
    serve on the Sixth Circuit.
        I could not be more honored than to support her nomination.
    And Mr. Chairman, I'm looking forward to working with you and
    Leader Thune to really get her confirmation completed very
    soon, and see her seated on the bench.
        Thank you.
        Chairman Grassley. Senator Hagerty.

                    STATEMENT OF HON. BILL HAGERTY,
               A U.S. SENATOR FROM THE STATE OF TENNESSEE

        Senator Hagerty. Chairman Grassley, Ranking Member Durbin,
    thank you for allowing me to join today. It's my privilege to
    join Senator Blackburn in introducing Whitney Hermandorfer, a
    terrific Tennessean, and someone who is now President Trump's
    nominee to be Circuit Judge of the United States Court of
    Appeals for the Sixth Circuit.
        Whitney's story begins at home in our home State of
    Tennessee. Let me begin with her academic background. She may
    well be the most credentialed lawyer to ever appear before this
    Committee. Whitney began at Princeton University earning her
    sociology degree magna cum laude. While she was excelling in
    the classroom, she was a leader on the court, a different sort
    of court, serving as co-captain of the women's varsity
    basketball team.
        Next, George Washington University Law School. She
    graduated first in her class. Not only that, Whitney served as
    editor-in-chief of the Law Review, making her scholastic
    success all the more impressive. Whitney then accumulated the
    most prestigious series of clerkships that I've ever seen. She
    clerked on the District of DC for my friend, Judge Dick Leon,
    for then Circuit Judge Brett Kavanaugh. And finally, on the
    U.S. Supreme Court for Justices Samuel Alito and Amy Coney
    Barrett. Frankly, that's remarkable.
        Most recently, she served as the director of the Strategic
    Litigation Unit in the office of the Tennessee's Attorney
    General. She served as the lead strategist and advocate for the
    State of Tennessee in its most complex and its most sensitive
    cases. We just distinguished herself in that role as an
    advocate.
        She brings profound insights regarding the structure, the
    genius of our Constitution. She weaves careful, nuanced
    reasoning throughout her briefs and oral arguments, earning the
    respect of the judges before whom she appears. She's proven
    that she has the experience and the demeanor that our very best
    judges possess.
        Though impressive, Whitney's professional achievements are
    only one side of this exceptional person. Her story is classic
    Tennessee. She hails from Franklin just south of Nashville,
    child of a songwriter, a musician, and a stay-at-home mother.
    She graduated from Harbert Hall High School, and was the co-
    captain of her school's basketball team that won the State
    championship during Whitney senior year.
        Now back at home in the rolling hills of middle Tennessee,
    Whitney fills what little spare time she has as a proud wife
    and mother of three daughters, and somehow still finds the time
    to fit in coaching her daughter's third grade basketball team
    and teaching Sunday school at her church. You can't spend 5
    minutes with Whitney and not be impressed by humility and her
    genuine kindness. Her optimism is simply infectious.
        But perhaps most important is Whitney's genuine love for
    our Constitution. She understands the Constitution must be
    interpreted according to its original meaning, that its meaning
    doesn't shift due to changes in public opinion, nor the
    preferences of whoever it is that's sitting on the bench.
    Whitney is the very best and the very brightest that our Nation
    can offer.
        I'm confident that Whitney will, if confirmed, administer
    justice without fear or favor, and without preference to the
    poor, rich, the weak, or the powerful. Whitney Hermandorfer is
    an outstanding nominee to serve in the Sixth Circuit, and I
    urge all my colleagues in the Committee to quickly advance her
    nomination. Thank you, Mr. Chairman.
        Chairman Grassley. Thank you, Senator Hagerty. And if you
    want to, you can stay here, go, whatever you want to do,
    Senator. Now, we're going to have Senator Hawley and Senator
    Schmitt. We'll start with Senator Hawley.

                OPENING STATEMENT OF HON. JOSH HAWLEY,
               A U.S. SENATOR FROM THE STATE OF MISSOURI

        Senator Hawley. Thank you very much, Mr. Chairman. This is
    a great day for the State of Missouri. It is an honor today to
    introduce four outstanding Missourians who are being nominated
    by President Trump for the Federal bench. And we're very proud
    of the fact that these are President Trump's first judicial
    nominees from the State of Missouri.
        Let me start with Missouri's Josh Divine, who is our
    current solicitor general. Josh's experience as solicitor
    general is wide-ranging. He has litigated in trial courts and
    appellate courts in the State Supreme Court, in Federal trial
    courts, in Federal appellate courts, dozens and dozens. It may
    be hundreds of times by this point. And any way you look at his
    record, his success record, it's astounding.
        Just to quantify it in dollar terms, Josh, as Solicitor
    General of Missouri, has won in dollar terms, he has a $725
    billion, that's with a B, billion dollar win record for the
    State of Missouri, including a judgment against China for the
    harms caused to Missourians during COVID-19 of $25 billion.
        Josh comes to us from Yale Law School. He's been a clerk at
    the U.S. Supreme Court for Justice Clarence Thomas. He worked
    in the Missouri Attorney General's office, first as a deputy
    solicitor general, where I had the privilege to hire him in
    2017. Been here in the Senate as chief counsel to me, serving
    on this Committee, and then back to the Solicitor General's
    office now in the State of Missouri.
        And he's done all of this while serving his wife and
    family, which is probably the most important service he's
    rendered. They're here today, his beautiful and brilliant wife,
    Elizabeth, and their six children. And I think, I hope it's
    okay if I tell everybody that number seven is on the way. So,
    Elizabeth and the kids are all with us today, and we are so so
    glad to have them.
        I'll just add one other note, which is something about
    Josh's personal fortitude. Just a couple of years ago, while he
    was in the midst of these very high profile, high intensity,
    high stakes lawsuits. Josh suffered a catastrophic accident and
    was confined to a wheelchair. His early prognosis was he may
    not ever walk again, but Josh fought to regain his ability to
    walk just as he has fought for Missourians in court day in and
    day out.
        And you'll see here in a moment when he walks to the table
    that he has now fully regained his ability. We thank the Lord
    for that. But we also look at his tenacity and the character
    that it displays like Josh Divine.
        Maria Lanahan comes to us from the Missouri Attorney
    General's Office. She's a graduate of Gonzaga University, the
    University of Chicago Law School, and she has been a force as
    the principal deputy solicitor general in the State of
    Missouri. Here, again, Maria's experience is wide-ranging,
    litigating in courts at every level, trial courts, appellate
    courts, Federal courts, State courts.
        Before joining the attorney general's office, she had elite
    federal clerkships. She served in private practice, she did in-
    house counsel work. I'm really taken with what Missouri
    Attorney General Andrew Bailey, who's here today, by the way.
    We welcome you, General Bailey. It's great to see you. Andrew
    said that Maria was, in his view, one of the finest legal minds
    in America, and one of the finest legal minds he has ever
    served with. It's a delight to see Maria here today.
        Zach Bluestone, his legal career has taken him literally
    everywhere, and he has excelled everywhere he's been. He's had
    stints at Georgetown, the University of Oxford, Harvard Law.
    Zach is surely among the best educated lawyers that we'll see
    on this Committee. He clerked on the Eighth Circuit Court of
    Appeals. He has worked in all three branches of the Federal
    Government. He has significant trial and appellate experience
    in both Federal and State court. He worked ably by my side in
    the Missouri Attorney General's office as we worked to protect
    the Constitution and the law. And his record as a prosecutor is
    absolutely second to none.
        And finally, Hon. Chris Stevens. I know Senator Schmitt
    will want to say a lot more about Judge Stevens. So, let me
    just say briefly, we're so proud that he is a Missourian
    through and through. He's a sixth generation Missourian who did
    his undergraduate work at the University of Missouri, graduated
    from the University of Missouri School of Law, spent 15 years
    as a Federal prosecutor in our State. I'm told he is one of the
    best Federal prosecutors we've ever had in the State of
    Missouri, and is now serving ably on the bench in the State of
    Missouri.
        He was first assistant to Senator Schmitt, and he is going
    to make an absolutely terrific Federal judge. I will just say
    finally, Mr. Chairman, in closing, these are four tremendously,
    immensely superlatively qualified nominees, and I look forward
    to seeing them approved by this Committee and confirmed in due
    course on the floor of the Senate. Thank you, Mr. Chairman.
        Chairman Grassley. Thank you, Senator Hawley. And Senator
    Schmitt.

                OPENING STATEMENT OF HON. ERIC SCHMITT,
               A U.S. SENATOR FROM THE STATE OF MISSOURI

        Senator Schmitt. Thank you, Mr. Chairman. It is a great day
    for Missouri, and it is an honor, special honor to have the
    four, the first four picks come from our State. I share that
    sentiment with Senator Hawley and also, I know it's a big day
    for them. It is also, I feel like I can share in a little of
    that pride with all four having worked with me in the Missouri
    Attorney General's office at different times in different
    tenure.
        These nominees also have something else in common. If you
    look at their legal experience, it's marked by exemplary public
    service to the people of Missouri, protecting their liberties,
    protecting their safety, and upholding the rule of law. I'm so
    proud of their careers that they've led that has led them to
    this day, and that President Trump has made such spectacular
    picks for these important positions.
        They're among the finest judges--they will be among the
    finest judges on the Federal bench. I'm confident of that. They
    each also have the highest moral and intellectual fiber. They
    each possess great experience, wisdom and judgment. But rather
    than lumping them all together, let me introduce them briefly,
    individually.
        Chris Stevens, who now serves as a judge, has dedicated his
    life to keeping Missourians safe and promoting law and Order.
    He's a judge currently at the Missouri Court of Appeals for the
    Eastern District. He was my first assistant attorney general,
    and before that was my criminal chief when I succeeded Josh
    Hawley, Senator Hawley.
        As Attorney General, you know, you have to build a team,
    and you have to really utilize that social capital that
    hopefully you've built up and you asking around who are going
    to fill some of these important positions when you're new to
    that spot in your core team. And his name just kept coming up
    over and over by respected lawyers that I knew. And I knew that
    we wanted to have a role to play in keeping Missouri safe.
        And so Chris doesn't live too far from where I live. And we
    met at PJ's Tavern and had a couple Busch Lights, and I
    immediately knew that Chris Stevens was the right guy. And he
    proved it over and over that he is somebody very capable.
        Outside of his tenure in the Missouri Attorney General's
    Office, he had a distinguished career graduating with academic
    honors from both the University of Missouri undergrad and at
    the University of Missouri School of Law, where he was editor-
    in-chief of the Missouri Law Review. Judge Stevens clerked for
    Chief Judge Bowman II on the United States Court of Appeals for
    the Eighth Circuit, and entered private practice at Bryan Cave,
    before serving as an Assistant U.S. Attorney for the Eastern
    District of Missouri for 15 years. And as Senator Hawley
    mentioned, one of the most accomplished Federal prosecutor
    we've seen in generations.
        He was then a partner at Armstrong Teasdale. After working
    at the Attorney General's Office with me, Judge Stevens joined
    the Missouri Court of Appeals, where he is been a judge for 4
    years now. He is a great husband to his wife, Lee, and a great
    father to his children, a devout Catholic. I'm confident that
    Chris Stevens does the right thing every single time, and I'm
    very confident he'll be a great Federal judge.
        Maria Lanahan has dedicated her career to a life of public
    service as well. I had the pleasure of hiring Maria at the
    Missouri Attorney General's Office, first in the Solicitor
    General Unit which was then led by United States Solicitor
    General John Sauer which we're also proud to call a Missourian,
    as well as first deputy solicitor general in my office. Maria's
    determination, focus, and pursuit of the truth helped her excel
    in protecting Missourians rights, reigning in the excesses of
    big government and defending the State in court.
        Maria attended Gonzaga University where she was a member of
    the Gonzaga Women's Basketball Team, and graduated summa cum
    laude from there. She then attended the University of Chicago
    School of Law, where she was the article's editor at the
    University of Chicago Law Review. She clerked for Honorable
    Brian Zahra on the Michigan Supreme Court, before clerking for
    Honorable Raymond Gruender, who I also see here today on the
    United States Court of Appeals for the Eighth Circuit in St.
    Louis.
        Maria worked for Thompson Coburn and Charter Communication
    as litigation counsel. She has been a rockstar in the Missouri
    Solicitor General's Office for the past 5 years. Maria has
    great legal experience in the private sector, in-house
    clerking, and in government.
        Maria is incredibly active in the St. Louis community
    coaching youth basketball as a big sister in the Big Brothers
    Big Sisters of Eastern Missouri, supporting her local parish,
    and in helping provide local educational opportunities for St.
    Louis Youth. Maria is a great wife to her husband, Michael,
    who's here today, a great mother to their children, and also, a
    devout Catholic.
        With her moral character, academic success, her
    professional experience and legal acumen, she's going to be a
    terrific and great addition to the Eastern District of
    Missouri. Welcome, Maria.
        Zach Bluestone. I just want to say a quick word also about
    Zach. I had the pleasure of having Zach in my office on the
    Solicitor General Unit for the first 2 years that I was
    Attorney General of Missouri. He went on to the U.S. Attorney's
    Office, has done great work there. He's intelligent, has all
    the credentials. Georgetown, Oxford, Harvard Law. He's had
    world class training.
        His time as a lawyer has been barked by nothing but
    success. He also clerked for Judge Gruender in the Eighth
    Circuit Court of Appeals, worked for Senator Jim Talent and
    Senator Orrin Hatch, a former Chairman of this Committee. He
    served with distinction in the U.S. Attorney's Office for the
    Eastern District of Missouri. For the last 5 years, he's worked
    in all three branches of government and in both State and
    Federal Government.
        He's dedicated his life to promoting law and order in our
    State, and has done with such distinction in his views toward
    the rights and privileges of the American citizens who stand
    accused of crimes. He's a man of the highest moral character, a
    faithful Christian. He's also going to make an excellent judge.
        Josh Divine. A lot has been said about Josh. He's done
    great work with Attorney General Bailey, did work great work
    with Senator Hawley, worked for me very briefly before coming
    to the Senate. He's brilliant, motivated somebody, widely
    respected for his thoughtful approach to law, to moral
    questions, and to keeping Missouri safe. He's going to be a
    great judge as well. Thank you, Mr. Chairman.
        Chairman Grassley. Thank you, Senator Schmitt. Now, would
    Ms. Hermandorfer, please come to the table. And before you're
    seated, would you please let me swear you in.
        [Witness is sworn in.]
        Chairman Grassley. Please be seated. And our custom is that
    before you give your opening statement, if you want to
    introduce anybody please do that. Proceed.

       STATEMENT OF WHITNEY D. HERMANDORFER, NOMINEE TO SERVE AS
           UNITED STATES CIRCUIT JUDGE FOR THE SIXTH CIRCUIT

        Ms. Hermandorfer. Thank you so much, Chairman Grassley.
    Good morning, Ranking Member Durbin, Members of the Committee,
    thank you so much for scheduling this hearing to consider my
    nomination. Thank you also to Senator Blackburn and Senator
    Hagerty for the very generous introduction and for your
    support.
        I'd also like to thank President Trump for the great honor
    of this nomination. I have here my family with me, my wonderful
    husband, Greg, our three daughters aged nine, five, and two.
    So, far so good girls. They make it through the introduction,
    that's a win from my perspective. My parents, Cliff and Leslie
    Downs, are also here. My father-in-law, Wayne Hermandorfer is
    with us as well. My mother-in-law, Carol is home helping watch
    our dog, which is an important member of our family because he
    keeps my husband company in a house full of girls otherwise.
        We have a dear friend, Jess Black, also with us, family
    watching at home in Nashville. We are blessed to be with many
    family members, my sister, Julianne, and her husband Luke,
    their two children. My brother-in-law and sister-in-law, Ajay
    and Jenny Hermandorfer, also in Nashville, with their two
    kiddos, one on the way. So, many family members have given me
    support throughout my life as have so many members of the legal
    community, coaches, teammates, teachers colleagues, mentors, of
    course, the judges for whom I've clerked. I can't express
    enough the gratitude I feel for their mentorship and support
    throughout my legal career.
        And I'm just so honored to be here. Thank you so much.
        Chairman Grassley. Are you done? You got an opening
    statement?
        Ms. Hermandorfer. I was told to keep it brief, so that's
    what I tried to do, Chairman.
        Chairman Grassley. Okay. Then we will go to questions.
    You've obtained clerkships. It's an impressive accomplishment
    for a young lawyer to be before Supreme Court clerkships. It's
    a mark of great academic distinction. It seems to me, without
    knowing all the history of clerks, that you're kind of in a
    category all by yourself.
        Having clerked for three sittings Supreme Court justices,
    one-third of the court, what lessons from your clerkship will
    you take to the bench if confirmed as a circuit judge?
        Ms. Hermandorfer. Clerking for the distinguished justices
    for whom I clerked was tremendous honor. Something I never
    anticipated I have the privilege of doing. I learned, Chairman,
    the importance of the judicial process. We have a deliberative
    judicial process and an adversarial system for a reason. We
    receive briefing, we hear argument from the parties. We discuss
    issues with colleagues. And through that process, the correct
    rule of law emerges. And that is what is to be followed, and
    that might sometimes diverge from how you originally thought a
    case might come out.
        So, the importance of the process is one thing I learned.
    Of course, I had exposure at all three levels at the Federal
    Judiciary to a tremendous volume and array of types of legal
    matters from sentencing, hearing revocations to the most
    meaningful constitutional questions at the Supreme Court of our
    generation. So, I learned that each case, no matter its
    importance to the Nation, is important to the parties and
    should be treated with respect and care.
        And finally, I learned that you can go through that process
    and issue the correct rule of law. And in our system, people
    might not always agree with the decisions that courts hand
    down. And it's important to understand that in our system
    decisions will not always be popular and that it takes grit and
    courage and determination to carry out your Article 3
    obligation under the Constitution. And so those are things I
    witnessed in the jurists for whom I clerked, and I would try to
    take with me to the bench.
        Chairman Grassley. You've also practiced law at a highly
    regarded law firm, and you've led litigation for the State of
    Tennessee and some of our country's most important recent
    cases. Nevertheless, some progressive organizations have
    suggested that you lack the requisite experience to be a
    circuit judge. So, can you tell us how many cases you've served
    as counsel for a party or as an amicus?
        Ms. Hermandorfer. My best estimate is I've served as
    counsel in probably about 80 to 90 cases, distinct matters,
    ranging from State court, Federal Court. Primarily practiced in
    Federal Courts of Appeals and Federal District Court. And so, I
    think recently the cases have come fast and furiously, and I've
    been privileged to handle a number of nationally significant
    matters on behalf of my home State of Tennessee, as well as
    many other States.
        Chairman Grassley. Has your experience as a lawyer for the
    State of Tennessee on behalf of private clients prepared you to
    be a judge of the Sixth Circuit?
        Ms. Hermandorfer. I would hope they have, Chairman. Again,
    I've represented clients at the law firm of all types, from
    individual criminal defendants, to asylum seekers, to
    businesses, to Fortune 100 companies, to mom-and-pop stores.
        In my current role as director of the Strategic Litigation
    Unit, I've recruited seven to eight attorneys into our office
    to litigate some of the Nation's most significant and complex
    constitutional, statutory, and administrative procedure matters
    on behalf of Tennesseans.
        And through that experience, I have extensive knowledge of
    the Federal court system and of how to approach many of the
    legal issues that would come before me, if I were so fortunate
    as to be confirmed to the Sixth Circuit.
        Chairman Grassley. My last question is, please describe
    what judicial independence means to you?
        Ms. Hermandorfer. So, to me, judicial independence goes to
    the heart of the structure of our constitutional system. The
    Founders set up three branches of government, co-equal
    branches, and the Founders chose to vest accountability for two
    of those branches in the electoral process. So, lawmakers are
    elected and the President so, too, accountable to the people
    through the electoral process.
        By contrast, the Framers placed accountability for Article
    3 judges in a different place. And that is judges are
    intentionally not accountable to electoral politics or to the
    majority in a political sense. Instead, they're accountable to
    the Constitution and to the rules that bind the exercise of the
    Article 3 judicial power, and that includes limiting judgments
    to cases or controversies.
        It means adhering to the jurisdictional limits that bind
    courts, and it means understanding that with the power to issue
    binding rulings that in some cases control the actions of
    private parties and coordinate branches of government, with
    that power comes great responsibility to ensure that rulings
    are proper in scope and legality.
        Chairman Grassley. Thank you for answering my question.
    Now, it's up to Senator Durbin. But before he takes over,
    Senator Hawley, you will take over for me now, please. Go
    ahead, Senator Durbin.
        Senator Durbin. Thank you, Mr. Chairman. Welcome. Thank you
    very much for coming before us today and bringing your great
    family. Terrific. Glad that they're here.
        So, let's get down to basics. Under Article 3, is your
    loyalty to the law and Constitution, or to the President who
    nominated you?
        Ms. Hermandorfer. Under both Article 3 and Article 6, the
    constitutional oath, the oath is to faithfully follow the laws
    that apply in a given case.
        Senator Durbin. And the Constitution?
        Ms. Hermandorfer. Absolutely
        Senator Durbin. Is the executive branch required to follow
    the orders of a Federal court?
        Ms. Hermandorfer. So, of course, this is an issue before
    the Supreme Court right now. And what I heard the Solicitor
    General say is how I understand the law as well, which is if
    there's a judgment issued by a court as to the parties that
    absolutely binds the parties and the way to parties go about
    your business, if you disagree with an order, is to seek maybe
    a stay, or emergency relief, or appellate review.
        Senator Durbin. And after you've exhausted all of those
    opportunities, are you--is the executive branch of our
    Government required to follow the orders of the Federal Court.
        Ms. Hermandorfer. If the Supreme Court issues an order at
    the end of the appellate review process, that order is to be
    followed as to the parties in the case.
        Senator Durbin. Ms. Hermandorfer, I'm a little bit
    interested in the decision that you and the State of Tennessee
    made to file an amicus brief in the Supreme Court in the case
    of Trump v. Casa. That case involved challenges to President
    Trump's unconstitutional executive order that purports to end
    birthright citizenship.
        President Trump's executive order has been blocked by a
    judge appointed by President Ronald Reagan, who said, and I
    quote, ``I've been on the bench for over four decades. I can't
    remember another case where the question presented was as clear
    as this one. This is a blatantly unconstitutional order,''
    referring to the order to end birthright citizenship. The State
    of Tennessee was not a party to that case. You filed this
    amicus brief voluntarily, and you reached a conclusion which
    the court ruled the most blatantly unconstitutional order in
    decades. Why?
        Ms. Hermandorfer. Of course, we were amicus in the case,
    and the decision was made by the Attorney General reflecting
    the values of Tennesseans that we were not satisfied that all
    of the information regarding the contemporaneous meaning of the
    14th Amendment was being presented to the various courts, given
    that the litigation was proceeding so quickly and at such a
    pace through the TRO and PI process.
        So, our role as amicus, as is any amicus role, was to bring
    additional information that could be helpful to the court's
    attention. And what we did there was draw the court's attention
    to contemporaneous 1800's-era sources regarding the meaning of
    the 14th Amendment.
        And I will note Ranking Member Durbin that even in courts
    that disagreed with the President's executive order,
    Tennessee's amicus brief was called out in particular as
    especially well written and mentioned by the judges in the
    hearing. So, I'm hopeful that we provided helpful information
    as the court decision considered the decision, which is all you
    can ask is to ensure the court has all the information before
    it as it deliberates.
        Senator Durbin. Did you agree with President Trump on this
    issue?
        Ms. Hermandorfer. So, the brief did not take an ultimate
    position with regard to the merits of the executive order. What
    it did was say the notion that this is an open and shut case,
    is hard to square with the contemporaneous evidence and
    executive branch practice in the latter 1800's interpreting the
    meeting of the citizenship clause. And so, I stand by
    completely those arguments and the historical sources that we
    advanced to the Court.
        Senator Durbin. You heard my opening remarks, perhaps when
    I relayed my experience with the so-called Federalist Society.
    I asked judicial nominee after nominee, why do you belong to
    this group? Well, it became pretty clear because this was the
    secret handshake, the calling card, if you wanted to be
    considered favorably to be a Republican nominee for a Federal
    judgeship.
        Well, they seem to have fallen on disfavor with President
    Trump. Leonard Leo has been characterized by the President as a
    sleazebag, and he went on to say some other negative things
    about the Federalist Society. So, now there's a new operation
    called the Teneo Network. Are you familiar with the Teneo
    Network?
        Ms. Hermandorfer. Yes, Ranking Member Durbin.
        Senator Durbin. Do you realize it was created by that same
    old sleazebag, Leonard Leo?
        Ms. Hermandorfer. I don't think I was aware of that.
        Senator Durbin. What is it?
        Ms. Hermandorfer. The Teneo Network. And I am a member as
    disclosed on my SJQ. I'm a new member, so I haven't had too
    much involvement, I will say. My understanding is that it's
    similar to the Federalist Society in that it's kind of a
    debating network and a networking group where individuals from
    across industries can get together and discuss the issues of
    the day and get insights into what challenges might be facing
    various industries.
        Senator Durbin. Well, listen, you must lead a pretty busy
    life. Your professional responsibilities, your family
    responsibilities. Why would you want to join this network so
    you can--well, describe for me why would you want to join this
    network?
        Ms. Hermandorfer. So, it was commended to me by colleagues,
    and I'm always interested as a Tennessean in connecting with
    other Tennesseans to discuss the issues of the day. I have not
    had any meaningful involvement given that, I believe, I was
    asked to join or invited to join a week or so before I was
    informed that I was receiving the nomination. And so, I haven't
    attended since then, any sort of events or been involved.
        Senator Durbin. Thank you.
        Senator Hawley [presiding]. I'm going to yield my time now
    to Senator Blackburn. Just before I do, I just want to just
    clarify one thing to make sure I understood your answer, Mr.
    Hermandorfer, to my friend, Senator Durbin's question. He's
    asking about the Casa case. He talked about your brief filed in
    the Casa case. The State of Tennessee was the party there
    filing, is that correct?
        Ms. Hermandorfer. That's right. And there's no filing that
    I would ever make or have made that would not reflect the
    interest of Tennessee.
        Senator Hawley. You're representing your client, this is
    the State of Tennessee. You work for the State of Tennessee?
        Ms. Hermandorfer. That's correct. I'm a State public
    servant who has a client and adheres to the direction of my
    appointed boss, the Attorney General.
        Senator Hawley. And I think your amicus brief also spent a
    good deal of time arguing that courts do not have Article 3
    power to bind non-parties. In other words, it was about
    universal injunctions or nationwide injunctions. Wasn't that a
    core piece of your amicus brief?
        Ms. Hermandorfer. That was an important part of the brief?
        Senator Hawley. Yes, I thought so. Senator Blackburn.
        Senator Blackburn. Thank you, Mr. Chairman. And I have
    three letters I want to submit for the record before I begin my
    questions. One is from Tennessee Governor Bill Lee, and then a
    letter from 24 State Attorneys General, and a letter from
    Tennessee Attorney General Jonathan Skrmetti.
        Senator Hawley. Without objection.
        [The information appears as submissions for the record.]
        Senator Blackburn. Thank you. And to Chairman Durbin, I'll
    be happy to talk with him about the Teneo Network. My son and
    his wife, and so many outstanding young individuals really
    benefit from that. It's been beneficial in their lives. So,
    I'll be happy to enlighten you at a future time.
        I want to also mention, and for all of our nominees, my
    Democratic colleagues ask nearly every nominee this Congress,
    whether the executive branch must follow court orders and then
    they attack the nominees if they don't give a categorical yes
    or a no, because the question is nuanced in its academic.
        Now, yesterday we had a hearing on overreach of district
    court judges and the universal injunctions. Now, my colleague,
    Senator Kennedy----
        Senator Kennedy. I deny----
        Senator Blackburn [continuing]. Posed essentially----
        [Laughter.]
        Senator Kennedy. I deny everything.
        Senator Blackburn. You can't deny this one, buddy. And so,
    he posed essentially the same question to the panel, asking
    whether they would advise a client to defy a court order.
    Professor Shaw was the witness for the Democrats, and here is
    how she answered. And I'm going to quote her, ``I would not
    rule out ever the possibility that a sufficiently egregious
    order there should be some consideration. If there's some way I
    think it's a qualified answer, yes. In an extremely narrow band
    of cases, I think it would be considered, yes.''
        So, the Democrats' own witness at yesterday's hearing on
    the issue of judicial overreach disagrees with them. I suggest
    when nominees are asked this question that is intended to be a
    ``got ya'' question that they just refer back to Professor
    Shaw's answer. I think it's unfair to attempt to conjure up
    disputes with a hypothetical. And these nominees are clearly
    committed to the law and to the rule of law.
        Ms. Hermandorfer, I am so pleased that you are before us. I
    want you to just lay out for this body why you were qualified
    to serve on the Sixth Circuit.
        Ms. Hermandorfer. So, my substantive experience ranges
    across complex areas of law. I've litigated as counsel, dozens
    of cases in the Federal Courts across nine circuits. I've
    argued cases in Federal District Court, Circuit Courts, and
    counsel of record in Supreme Court cases, State Trial Court,
    State Appellate Courts.
        So, I think my litigation experience serves me well, as
    does my clerkship experience in which I was working within the
    judicial branch, getting a firsthand view of the deliberative
    process and the importance of treating every case and every
    party with care and respect.
        I think perhaps the most important qualification, my recent
    work is that I'm not a stranger to litigating cases that I know
    are going to be in the public spotlight and on which people
    have strongly held views in either direction.
        And when you're in a case like that, it is absolutely
    imperative that you treat every issue in every party and every
    opposing counsel with respect because you have to model
    civility the most when you're in a hot button-type situation.
    And I've also gotten a bit of a backbone by knowing that what I
    do will not always be well received by all members of the
    public. And I've learned how to take criticism, and attacks,
    and personal threats, and move forward with professionalism and
    integrity.
        Senator Blackburn. I know you're going to apply the law and
    you're going to protect people's individual rights. So, let's
    talk about how you will approach cases that come before you,
    and describe your method of statutory and constitutional
    interpretation.
        Ms. Hermandorfer. Sure. So, my method reflects the enacted
    text with the ratified text, reflects the will of the people as
    of the time of enactment or ratification. And so, the Supreme
    Court has instructed that if the meaning of the text at the
    time it was enacted or adopted is clear, then that is the
    meaning that fixes your interpretation and governs the legal
    issue that might be before the court.
        Of course, there are situations in which you use other
    tools of interpretation; statutory structure, history
    precedent, and you use all of those tools to get to the answer
    that binds the parties. And in no instance is your own view
    about what the policy should be govern or enter into the
    inquiry.
        Senator Blackburn. Thank you. I yield back.
        Senator Hawley: Senator Whitehouse.
        Senator Whitehouse. Thank you very much. Welcome.
        Ms. Hermandorfer. Thank you.
        Senator Whitehouse. We are here in the Senate Judiciary
    Committee in interesting times given the food fight that has
    erupted in the far right between what I would call the Leonard
    Leo, big polluter faction of the court capture effort, and the
    Trump MAGA election denial faction of the far right. And it's
    going to be interesting to watch as different candidates come
    forward, whether they look more like Leonard Leo, big polluter
    faction sorts, or whether they look more like MAGA election
    denial sorts.
        But clearly, when you've got the President blowing up
    Leonard Leo as somebody who hates America, something is going
    on. What we do know is that probably $600 million was spent in
    the dark money court capture scheme that has been operating now
    for well over a decade, well over two decades actually in this
    country.
        And the still funds front groups that come before the
    Supreme Court on a regular basis and a little orchestrated
    flotillas to give the justices the message as to what it is
    that the big donors behind that whole enterprise want. And it
    may be that what President Trump is beginning to notice is that
    the justices that he put on the Supreme Court are actually more
    responsive to the Leo polluter operation than they are to Trump
    and his MAGA allies.
        If you look at the record, the fossil fuel industry
    essentially wins every time something important to them gets
    before the Supreme Court and Trump is not winning every time.
    And it may have come to his notice that there's a bit of a
    difference between who's winning all the time and who isn't.
    And there's every reason to believe that during Trump-1,
    Leonard Leo and Don McGahn, who was his White House legal
    counsel, were actually operating for the benefit of the Koch
    brothers and the big polluters, that side of the operation, and
    that that's where the loyalty and the policy fell.
        There doesn't seem to be any doubt any longer that this in
    fact, was a political operation. Just recently, the Wall Street
    Journal, which has long been the mouthpiece of the Leo polluter
    side of this current squabble, published an interview claiming
    that those judges have achieved goals for the conservative
    movement that have been on the agenda since the 1970's.
        They're trying to make Trump happy with the decisions that
    he made and to reassure him that this is a really big Trump
    achievement. Whereas Trump and some of his allies are starting
    to recognize maybe this wasn't such a Trump achievement after
    all. Maybe he's the one who got played in this game. Maybe all
    those front groups that are appearing before the Supreme Court
    in those little flotillas and are getting those wins are
    actually reporting to somebody completely else than Trump and
    Trump world.
        So, this is indeed very interesting times. You are
    affiliated with the Teneo Group, which is a Leonard Leo group.
    Interestingly, in the recent hearing that my colleague just
    referred to about the newly discovered ``shock, shock'' that
    there are national injunctions going on here.
        The two Republican witnesses, one was sat in a chair paid
    for by Leonard Leo and his Marble Trust operation that he ran,
    runs billion-dollar slash fund for him from a billionaire,
    pretty sweet deal, and the other one wouldn't answer where his
    chair money came from. It got laundered through donors trust,
    the so-called ``ATM'' of the far right, and he wouldn't even
    answer whether he knew or not where the money for his chair was
    coming from.
        So, my default proposition is that if he won't say it
    probably is also Leonard Leo in the Marble Trust operation. So,
    even in our hearings right here, we have this very potent
    internal food fight between the Leo polluter faction and the
    MAGA election denial faction. And I just wanted to take my time
    and point this out because I think it's highly revelatory about
    what has been done to the judicial branch of government by the
    far right. Thank you, Chairman.
        Senator Hawley. Senator Schmitt.
        Senator Schmitt. Thank you. I want to first say a brief
    word on the judicial nomination success that just happened
    within the last week that we led right here on this Committee,
    kicking the woke, failed American Bar Association out of its
    privileged spot in the judicial selection process.
        In March, I sent a letter, a letter along with four other
    Members of this Committee informing the American Bar
    Association that we would no longer consider ABA
    recommendations on pending legislation or nominees crippling
    their role in the Senate's piece of the judicial confirmation
    process.
        Last Friday, attorney General Bondi joined our cause
    telling the ABA that it would be treated no differently than
    any other leftist activist group in the DOJ piece of the
    judicial confirmation process. I invite the rest of my
    colleagues to join this important cause.
        The ABA is an ideologically captured institution, and it
    has failed in its core mission while the ABA stayed silent
    during the weaponization of our justice system under Merrick
    Garland and Joe Biden, the ABA now has something to say on
    nearly every policy position by the Trump administration.
        Beyond that, the ABA has embraced cultural Marxism by
    forcing its DEI and woke initiatives on law schools across the
    country. When we look at these videos from law school
    graduations, we see activists, not lawyers, not future jurist,
    not people who can keep our streets safe. And this is
    downstream from the disastrous policies put in place by the
    American Bar Association. The American Bar Association was also
    biased in his judicial selection process against Republican
    President's nominees.
        It is high time for us to completely sever our link once
    and for all. This Committee should treat the ABA no differently
    than any other leftist activist group in our internal process
    for future legislative recommendations. And I applaud Attorney
    General Bondi for taking this pivotal step at DOJ.
        Ms. Hermandorfer, with that being said, I see that you're a
    member of the ABA while in law school. It's Okay, we all make
    youthful indiscretions. I'm not going to hold that against you.
    I've seen a lot of resumes in my previous job, and this one,
    it's very impressive. I think the breadth and the range of your
    experience, who you've had a chance to work with, who you've
    got a chance to sort of be mentored by, now in your role
    playing a similar role in mentoring lawyers and taking up
    important causes in Tennessee.
        That experience spans from, you know, administrative law
    and free speech cases that often would come before the Supreme
    Court. I think it's important to point out that that in many
    ways, that breadth of experience can compare very well to
    somebody with maybe a perhaps more narrow focus for a longer
    period of time. In that experience, how do you think you bring
    that to this position that you're being nominated for, a very
    important position, that experience you've had?
        Ms. Hermandorfer. Sure. So, I think familiarity with the
    subject matter, the bread and butter of Federal courts of
    appeals are, you know, statutory interpretation interpreting
    other legal texts, applying constitutional rules. And I've had
    the opportunity to immerse myself in that at the highest level
    for the past number of years now.
        And so, I think familiarity with the subject matter allows
    you to immediately come in with confidence and fulfill, carry
    out your Article 3 role in deciding what the case requires
    holding. And I think being able to jump in is especially
    important given that many of these cases do proceed on an
    expedited timeline.
        And I've litigated you know, emergency cases in the Sixth
    Circuit and you're often under the gun. And I think my practice
    has been very fast-paced; preliminary injunction motions,
    emergency appeals. And so that pace and complexity combined
    will, I would hope, suit me well to make an impact and help the
    court discharge its duties.
        Senator Schmitt. I think, you know, given the uniqueness of
    your background and the number of, I mean, justices on the
    Supreme Court that you've had a chance to work with, what would
    you say that you--what experience specifically would you say
    you've drawn from any one of them as far as decisionmaking or
    temperament?
        Ms. Hermandorfer. I think humility is one thing that really
    comes to mind. It is an extraordinary power, the Article 3
    power to decide cases and controversies, and settles parties'
    rights and the most important cases, at least to the parties,
    and certainly to the country sometimes. And with that power,
    again, comes great responsibility and humility to understand
    the proper role of a judge is to interpret the law, and not to
    make the law or bend the law to whatever policy preferences the
    judge might have individually. And I think the justices and
    judges for whom I've clerked are models of that.
        Thank you. Thank you, sir.
        Senator Hawley. Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Mr. Chair. Ms.
    Hermandorfer, Donald Trump has said, ``I have an Article 2--''
    this is an exact quote, ``where I have the right to do whatever
    I want as President.'' You filed a brief supporting his ability
    to fire Inspector General, and in another brief, you supported
    his attempt to undermine Congress's authority to create
    independent agencies to protect consumers, writing,
    ``Humphrey's branch-busting reasoning was wrong the day it was
    rendered.''
        What is your view of Congress's constitutional authority to
    enact laws and create checks on executive power?
        Ms. Hermandorfer. So, I was, of course, an advocate
    representing a client in all of those briefs. My current
    understanding of the Supreme Court's precedent with regard to
    the President's removal power is that when it comes to
    principal officers. So, that would include heads of independent
    agencies. The President, if that officer is exercising in the
    language of Collins v. Yellen's significant executive
    authority, that that officer must be removed by the President
    no matter the size or role of the agency.
        And in those cases you mentioned, Senator Klobuchar, the
    Supreme Court recently handed down an order staying the
    district court, D.C. Circuit's decision, and indicating that
    with respect, at least to the NLRB and the MSPB, that the
    President likely had the constitutional authority to remove
    those principal officers.
        Senator Klobuchar. And inspector generals, you believe the
    same principle applies?
        Ms. Hermandorfer. So, there are lines of cases discussing
    inferior officers. There is a dispute in the Inspector
    General's case about how to characterize Inspectors General if
    they are indeed characterized as principal officers, then under
    the reasoning of the Supreme Court there would be reason
    potentially to think that the Supreme Court's role in the law
    might govern. There are separate lines of authority for certain
    inferior officers. I stand by the positions in the brief and
    wouldn't want to otherwise prejudge the merits of any
    controversy that could come before me as a judge.
        Senator Klobuchar. Okay. Let's go back to your work as
    Tennessee attorney in the Tennessee Attorney General's Office,
    where you defended the State's near total ban on abortion,
    which does not provide any exceptions for rape or incest. The
    law also contained a narrow medical necessity exception that
    chilled doctors from providing patients with the care they
    need.
        Isn't it true that as a three-judge panel in Tennessee
    noted, the record was, ``replete with examples of abortion care
    being denied in health and life-threatening situations despite
    the State conceding that the--'' now I'm talking, that the
    medical necessity exception would've entitled them to care
    under Tennessee's medical necessity exception?
        Ms. Hermandorfer. So, the decision of the three-judge panel
    at the preliminary phase was that the law should be interpreted
    to require and allow certain abortions provided in serious
    medical situations. Those included, the ones laid out in the
    order, things like premature, previable rupture of the
    membranes, insufficient cervix.
        What the State had argued was the statute that Tennessee
    adopted used the same language that was used and approved by
    the Supreme Court in the Casey v. Planned Parenthood decision.
    It was always the State's position that the language allowed
    abortion care in those serious scenarios. And that is what the
    court held. And that's what the court held as a temporary
    injunction matter.
        Senator Klobuchar. Okay. So, I actually met one of the
    plaintiffs, Rebecca Milner. She had suffered preterm, premature
    rupture of membranes. Her baby was unlikely to survive. And
    continuing the pregnancy put Rebecca at risk of potentially
    life-threatening infection. Yet, because of the law, her
    Tennessee doctor denied her the abortion care she needed. As a
    result, she traveled to Virginia, she developed an infection,
    the doctor said, resulted from the delay in care and required
    emergency treatment for sepsis.
        Given you argued the court should uphold that law, even if
    it didn't work to protect her health, what would you say to
    litigants who question that you can be even-handed in applying
    the law, including to women trying to vindicate their rights?
        Ms. Hermandorfer. So, what I would say is you can read the
    brief, and read the positions that Tennessee took in that case,
    and that I represented on behalf of my clients, and that was
    there were many serious medical scenarios in which abortion
    under the text of the law would and should be permitted. And I
    would say that we were carrying out the will of Tennesseans to
    have that type of life or health exception, but at the same
    time to vindicate a constitutional State amendment that makes
    clear that there is no otherwise non-medical right to an
    abortion under State law.
        Senator Klobuchar. One last question. We are--Steven Miller
    has said publicly that the White House is actively looking at
    suspending the writ of habeas corpus and, ``A lot of it depends
    on whether the courts do the right thing or not.''
        Conservative law Professor Jonathan Adler said the White
    House can look at this question all at once, but it is
    ultimately up to Congress whether the writ should be suspended.
    Do you agree that only Congress can suspend the right to habeas
    corpus?
        Ms. Hermandorfer. So, I think as you mentioned, that is an
    issue that is under active consideration by the political
    branches and could very well come before me, if I were
    confirmed as a judge. So, I think in prudence, as a judicial
    nominee, it would not be appropriate for me to pass on the
    validity of any such arguments.
        Senator Klobuchar. Okay. Thank you.
        Senator Hawley. Senator Lee.
        Senator Lee. Thank you, Mr. Chairman. And thank you, Ms.
    Hermandorfer, for being willing to be here today and to be
    considered for this position.
        I want get to questions in a moment. I do want to respond
    to a couple of assertions that have been made at this hearing
    already, some involving the American Bar Association, and some
    involving the Federalist Society, an organization that I belong
    to for the better part of the last 30 years.
        Look, the Federalist Society is not an advocacy group. It
    does not advocate. It's regarded by many as a conservative
    group, and that's fair because a lot of its members happen to
    be conservative. But its events, unlike most American law
    school classrooms, are open to people of all viewpoints. In
    fact, the panel discussions that it sponsors routinely, as a
    matter of course, do have multiple views represented,
    differentiating it from many other organizations, including
    ABA-accredited law schools, including ABA discussions
    themselves.
        The American Bar Association, I would add is about as
    independent, about as nonpartisan is about as ideologically
    even-handed as the Democratic National Committee. Now, the fact
    that the ABA first had an official role is itself stunning and
    alarming that it continued that long. The fact that it no
    longer plays an official role in this is appropriate. It's
    never appropriate in my view, particularly once the ABA decided
    to be a leftist organization, to be the lawyer's wing of the
    Democratic National Committee has made this inappropriate.
        But if you want to attack the Federalist Society, look no
    further than the fact that the ABA is itself an advocacy
    organization. The Federalist Society is not. So what? It
    provides is an open forum for discussion among lawyers and law
    students, open forum in which multiple viewpoints are in fact
    welcome. It's not an advocacy organization quite unlike the
    American Bar Association in that regard.
        Ms. Hermandorfer, you've accumulated a really impressive
    array of clerkships. It almost seems Grady to me that you've
    clerked for now three members of the current U.S. Supreme Court
    and very admirable that will serve you well. During that time.
    You've had the opportunity, well clerking for no fewer than
    four Federal judges slash justices to observe the role of the
    judiciary. How would you summarize your judicial philosophy?
        Ms. Hermandorfer. My judicial philosophy is that the law is
    to be interpreted by the judge and not made by the judge. And
    what I mean by that is, of course, there's new issue resolved
    and rulings made, but the judge is not supposed to, in the
    words of Alexander Hamilton in Federalist 78, ``substitute his
    or her passion, or policy preference for the will of the
    people, and it's the will of the people that gives all of our
    laws and the Constitution validity, because that's the consent
    of the governed.''
        And so, the judge is intentionally unaccountable to the
    people because there are times when you, the judge, needs to
    issue counter majoritarian rulings and protect rights against
    the majority. But with that comes the responsibility to issue
    appropriate orders and abide the limits on judicial power.
        Senator Lee. In the same issue of the Federalist Papers,
    Hamilton also differentiated between will and judgment. What's
    your--in a sentence or two, just tell me what your
    understanding is of the difference between will and judgment,
    and how you tell them apart as a judge?
        Ms. Hermandorfer. Judgment as a judge is applying the laws
    and the rules of decision neutrally to reach an outcome
    supported by the law. Will, by contrast, is super imposing the
    judge's own policy preferences against what the law would
    require and ruling that way in a case
        Senator Lee. When interpreting the text of a federal
    statute which will often be your role as a judge on the Sixth
    Circuit, you'll have to decide what it means. How best would
    you describe how to go about that subjective intent on the part
    of Congress as a whole subjective intent on the part of the
    sponsor, or this or that Committee staffer who happened to
    write this or that report? Is it the original public? Meaning?
    How do you go about it?
        Ms. Hermandorfer. So, the Constitution prescribes the
    appropriate way to make Federal law, and that's bicameralism
    and presentment of the text. And yes, so this will of the
    internal decisionmaking process or intention is not what you
    look to.
        Senator Lee. I'm so happy to hear, hear you bring up
    Article 1, Section 7, one of the most overlooked parts of the
    Constitution, one of the most important and often overlooked.
    What happens when we neglect that the twin obligation, the twin
    prerequisites of Federal law-making, all Federal law-making
    bicameralism and presentment. What does that do?
        Ms. Hermandorfer. So, from a State's perspective,
    especially part of the grand compromise was having States with
    proportional representation in the Senate who could serve as a
    veto gate for any Federal legislation moving through. When you
    instead bypass that process and issue Federal rules that are
    not reflective of the democratic branches by capitalism and
    presentment, you have a situation where the people in the
    States are cut out of the political process and subjected to
    rules that they don't necessarily have accountability for.
        Senator Lee. I tend to believe--I'll wrap up now. If I
    could just finish this thought, Mr. Chairman. I tend to believe
    that most of the problems in the Federal Government, most of
    the contention around it, most of the discord that you see,
    most of our national debt, most of our sprawling regulatory
    system, all emanates from deviation from the Constitution's
    twin structural protections.
        The vertical protection we call federalism. The horizontal
    protection we call separation of powers. And within the
    legislative process are deviation from this concept of
    bicameralism and presentment being the indispensable condition,
    precedent that without which not of the legislative process.
        We now have 100,000 pages of new law made each year by
    unelected unaccountable bureaucrats accountable to no one
    imposing legal obligations that if you don't obey them, we'll
    fine you millions of dollars, we'll shut down your business,
    can even send you to prison. All without the ascent of either
    House of Congress, much less both, and without presentment to
    the President.
        This is wrong. And this is why you and others who have
    litigated some of these issues are right to point out the
    problem with so-called independent agencies. They lack under
    the Constitution any proper role in the lawmaking process that
    bypasses Article 1, Section 7. Thank you.
        Senator Hawley. Senator Coons.
        Senator Coons. Thank you very much. Ms. Hermandorfer, thank
    you for your service in the Tennessee Attorney General's
    office, and congratulations to you and your family for your
    nomination.
        As you may know, I am not a reflexive no vote on nominees
    of a President of the other party. I've supported President
    Trump's judicial nominees in his first term when they had the
    qualifications and experience for the job, and the character
    and the independence to carry out the role of a judge,
    particularly circuit judge with integrity.
        I am concerned about the striking brevity of your
    professional record. You graduated from law school just a
    decade ago and you spent 4 years with impressive clerkships,
    but often nominees for a position such as the Circuit have real
    experience in court. Have you ever served as the sole or chief
    counsel in any case, tried to a jury verdict?
        Ms. Hermandorfer. Not to a jury verdict, Senator.
        Senator Coons. Have you ever served as the sole of chief
    counsel in any case tried to a final judgment?
        Ms. Hermandorfer. I've served as chief counsel in many
    final judgment cases in trial court. If you mean a bench
    trial--I'm sorry, I don't understand. A bench trial would be
    no, but final judgment, yes.
        Senator Coons. How many direct examinations have you
    personally taken in Federal court?
        Ms. Hermandorfer. As an appellate lawyer, I don't usually
    take direct examinations of--the answer is zero.
        Senator Coons. How many cross-examinations have you taken
    in Federal court?
        Senator Lee. None.
        Senator Coons. How many depositions have you taken?
        Ms. Hermandorfer. Again, as an appellate lawyer, that's not
    really part of my practice. I tend to----
        Senator Coons. How many depositions have you defended?
        Ms. Hermandorfer. I have not defended depositions.
        Senator Coons. How many Federal appellate oral arguments
    have you presented?
        Ms. Hermandorfer. Federal appellate oral arguments, that
    would be four.
        Senator Coons. And how many Supreme Court oral arguments
    have you presented?
        Ms. Hermandorfer. None. Though I've second-chaired and been
    counsel of record in Supreme Court matters.
        Senator Coons. I'll just point out that the jurist you've
    been nominated to replace, Judge Jane Stranch, had 31 years of
    legal experience under her belt when nominated to this position
    in the Sixth Circuit. And the ABA, although disregarded by
    some, has long had a standard that without more than a dozen
    years of federal service, they would deem someone unqualified
    for positions such as what you've been nominated for.
        Let me move to a different issue. The Federal Rules of
    Civil Procedure, Number 65, sets out the rules of the road for
    issuing TROs and PIs, including whether a party moving must
    post a security bond. What factors should an appellate judge
    consider when ruling on a challenge to a security bond set or
    not set by a district court under FRCP 65(c) before issuing a
    TRO or a PI?
        Ms. Hermandorfer. So, this comes up sometimes when the
    State is a litigant and oftentimes parties can move to waive
    the security bond. And what a court is looking to is the
    gravity of harm to the potential appellant should the case--the
    disposition in the district court be allowed to move forward.
    So, it's similar to kind of the equitable considerations of
    harm, and the gravity of that harm, and whether it would be
    reputable or compensable on the other end.
        Senator Coons. Thank you. And in what sorts of cases is it
    typical to set or require a security bond?
        Ms. Hermandorfer. So, I think cases in which there's going
    to be financial exposure, for example, on behalf of an
    appellant could be such a case where a, a bond might be posted.
        Senator Coons. Contract case or a case involving
    infringement of a patent or something like that. Does your
    analysis change if the matter is a constitutional case brought
    by a private plaintiff against allegedly unconstitutional
    actions of the Federal Government?
        Ms. Hermandorfer. So, it's--I would have to take each
    constitutional violation and ruling on its own terms and
    wouldn't want to prejudge, but the equitable factors, of course
    would be the ones that I would apply in such a situation.
        Senator Coons. How would you set a bond for something as
    foundational as a violation of the Constitution?
        Ms. Hermandorfer. I'm not sure I could answer that in the
    abstract, Senator.
        Senator Coons. And I'm not sure District Court judges could
    answer that either. What tools does the Sixth Circuit or any
    circuit have to enforce its judgments? If you were confirmed
    and a party disobeys, an order of the Sixth Circuit, perhaps
    even one you wrote, what would you do?
        Ms. Hermandorfer. Well, I know that there are mechanisms by
    which, of course, judgments are entered, and executed, and
    enforced through Federal district courts.
        Senator Coons. And what are those mechanisms?
        Ms. Hermandorfer. Well, the Federal District Court
    sometimes can issue contempt rulings, for example, that are
    appealable. And, you know, if you're talking about warrants or
    orders of those sort, I know the U.S. Marshals Office has some
    sort of involvement in that. But I confess this hasn't been
    part of something that I've litigated.
        Senator Coons. And when would you feel you'd met the
    standard to call in the Marshals to execute your judgment?
        Ms. Hermandorfer. I think it's very difficult, again, to
    answer that question in the abstract. And I can just tell you,
    as a party, I've followed the appellate practice process
    whenever I felt as though a judgment had gone the wrong way
    against me and I've secured appellate relief in those
    situations.
        Senator Coons. Last question. What would you do if the U.S.
    Marshals were to disobey and refuse to execute the judgment of
    the Circuit Court if they were instructed by the DOJ to stand
    down and to refuse to implement an order of the court?
        Ms. Hermandorfer. That would, as a probably junior
    appellate judge on my court, be something that I would look to
    my colleagues and whatever governing rules and precedents would
    govern that situation. But again, on the abstract as a
    hypothetical matter----
        Senator Coons. Ms. Hermandorfer, I hope this is an abstract
    and hypothetical matter, but it's one that occupies quite a few
    of us and quite a bit of our discussion on this Committee as we
    come up against the question of whether or not we have a
    President willing to disobey orders of Federal courts. Thank
    you for your testimony. Thank you, Mr. Chairman.
        Senator Hawley. Ms. Hermandorfer, we're going to go to
    Senator Moody, but let me just ask you beforehand just to make
    sure that I'm clear. My colleague was just asking about the
    number of cases that you've tried to a jury, and cross-
    examinations performed before a jury, and direct examinations
    performed before a jury. What court are you being nominated to?
        Ms. Hermandorfer. The Sixth Circuit Court of Appeals.
        Senator Hawley. A court of appeals. Do you have any
    appellate experience at all?
        Ms. Hermandorfer. I have litigated probably over 100
    appellate cases.
        Senator Hawley. Over 100 appellate cases. How many
    different courts of appeals, how many circuits, how many
    different circuits have you argued or litigated in front of?
        Ms. Hermandorfer. I've argued in front of nine circuits and
    the Supreme Court--not argued, litigated.
        Senator Hawley. Nine circuits and the Supreme Court, over
    100 appellate cases. That sounds like quite a bit of experience
    to me. Senator Moody.
        Senator Moody. Thank you, Senator Hawley. And thank you for
    running such an efficient hearing today as our Chairperson.
    Appreciate your prior service to your State, ultimately, I
    believe to this country. Thank you for being here today and,
    and standing willing to answer some really tough questions.
        I will note there's been a lot of attention brought to the
    ABA and whether or not every Senator on the Judiciary Committee
    or every Senator for that matter who of an ultimate vote
    considers or should consider any recommendations. And, you
    know, if that were important to the ABA over the many years
    that people have been pointing out, they are becoming and
    perceived more and more and more as a partisan group.
        You would think they would stop doing things like awarding
    a progressive prosecutor who ultimately said that they would
    not prosecute laws that they didn't agree with politically and
    that a Governor had to remove from office after they were
    removed from office. Giving them an ABA award would seem to be
    inappropriate.
        And so, I think that organization should probably take to
    heart everything that has been said today, because that's the
    kind of things that they're still doing. And if they want to be
    taken credible by the United States Senate in determining who
    would make good judges, maybe when a judge is removed for
    saying they would not enforce or follow laws they don't agree--
    or excuse me, a prosecutor was removed because they would not
    enforce laws they don't agree with, that might be something
    that would undercut the credibility of the ABA.
        You have gotten questions about your lack of experience in
    the trial court. Some of that may be related from the fact that
    you are serving over just over a decade as a lawyer, and now
    you're going on to a very important appellate position. I think
    you'll be a great appellate judge. I am overwhelmed and really
    impressed by your background. I wonder if your--the predecessor
    and your role had clerked for three Supreme Court justices at
    the time that they were nominated. I doubt it.
        I was a young judge when I became a judge. I served over a
    decade before I became the attorney general, and now a United
    States Senator. To some extent, I think that can bring a
    quality and a certain tenacity to move cases and a docket, and
    deliver expediency in the judicial system for the American
    people. That is much needed.
        In your opinion, how important is efficiency of a docket to
    being a good judge?
        Ms. Hermandorfer. So, as a party who's often seeking relief
    from courts, efficiency of the docket goes to the heart of the
    fairness and integrity of our judicial system because
    everyone's heard the saying, ``Justice delayed is justice
    denied.'' And I do think that is where my recent years of
    practice and the pace--again, I mean, there have been weeks
    when I've filed--there was a day I filed a supreme court brief
    and a district court brief on summary judgment the same day and
    the same case. That's how fast our cases move. And the volume
    of that and the pace of that is something that I think would
    suit me well to do my best to hit the ground running and
    contribute to my colleagues to the best of my abilities.
        Senator Moody. And right now, more than ever, at this
    moment in time we have a President in office that is
    desperately trying to clean up a lot of mess that was created.
    And I believe I was the attorney general fighting against a lot
    of unlawful policies from the last administration. And so, in
    doing so, is having to make really hard decisions at a fast
    pace as an executive to deliver safety and security for the
    American people. That is just a fact.
        And what we are seeing now every day are nationwide
    injunctions, another stay, another order that is in some way
    stymieing this executive from doing its job. And that is
    causing a lot of concern from the American public who wants to
    just feel safe and have some sort of order and stability in
    this country again. Whoever becomes a judge, an appellate
    judge, or even a district court judge, is going to have very
    critical matters and issues come before them dealing with
    separation of powers.
        And it is so important that we have judges that understand
    the importance of that and can rule on it quickly so that an
    executive's hands aren't tied for 4 years, and they can't do
    what they have promised to do for the American people when it
    is within the law to do so.
        In your experience, what have you done to fight for the
    separation of powers? You know, we're more and more evolving
    into what feels like a separation of parties, which is
    undermining the stability of this constitutional form of
    government instead of a separation of powers. And what are
    cases that you could highlight for this Committee, whereas an
    attorney you fought for the respect of separation of powers?
        Ms. Hermandorfer. So, I've litigated dozens of cases
    involving the attempt by the Federal Government to, through
    rulemaking, for example, impose a rule onto States and onto
    State citizens that did not ever go through Congress. That
    includes the Title IX case that includes cases like our
    challenge to the Section 1557 rule, which both of those
    involved gender, identity-based rules being applied to States
    through the executive branch and not through Congress. Other
    cases, many other such cases our office has litigated and all
    of those cases reflect the importance of our dual sovereign
    system and the importance of allowing States to govern
    themselves through their political processes absent proper
    lawmaking by the Federal branches.
        Senator Moody. Thank you so much. And Chairman Hawley, I
    owe you a minute.
        Senator Hawley. That's right. I was so generous with your
    time, Senator. I'd like to enter into the record here, a letter
    from 18 appellate attorneys, including the former Solicitor
    General of the United States, Paul Clement, all endorsing Ms.
    Hermandorfer, talking about her experience, talking about her
    expertise, talking about her outstanding record.
        Here's a representative, ``Ms. Hermandorfer has a brilliant
    legal mind, an outstanding work ethic, a strong sense of
    fairness and justice, a collegial manner, which we're seeing
    today, and an extraordinary record of academic and legal
    achievement. Based on our experience with Ms. Hermandorfer and
    her distinguished career in private practice and public
    service, we are confident that she possesses the character,
    temperament, and intellect to make her an asset to our Nation's
    judiciary.''
        And without objection, I'll enter that into the record.
        [The information appears as a submission for the record.]
        Senator Hawley. Senator Welch.
        Senator Welch. Thank you. Thank you very much, Mr.
    Chairman. You know, you're hearing what is a real divide in the
    country and between the parties about what's happening in the
    justice system? I happen to think the ABA is an excellent
    organization. I'm disappointed the President is prohibiting the
    ABA from being involved. There's a different point of view on
    the so-called weaponization of what's happened in the Justice
    Department.
        But one of the elements that's emerging now is an
    incredible amount of criticism from the executive branch of
    judges who make decisions that the executive disagrees with.
    For instance, President Trump referring to some judges said who
    decided against him, ``U.S. hating judges who suffer from an
    ideology that is sick.'' There's a reference to by the
    President of judges who are ``monsters'' and want our country
    to go to hell. I don't think that's helpful.
        And just let me ask you. You've had judges rule in your
    favor, you've had judges rule against you. Is it your view that
    in your experience when judges have ruled against you, it's
    anything other than the exercise of their responsibility to
    decide the cases as they see it, or is it motivated by some
    political ideology?
        Ms. Hermandorfer. Well, I think your question, question
    touches on foundational aspects of our system, which is there's
    obviously--we're a country that values political dialog very
    much. At the same time, there no doubt are limits on violence
    limits, on criminal threats, things like that. So, you know, I
    don't want anything I say here as a nominee to be seen as----
        Senator Welch. No, I'm asking----
        Ms. Hermandorfer [continuing]. Passing judgment.
        Senator Welch. You've been a litigant, so you had cases
    decided, I'd take it, for you and against you, in both cases.
    In either case, do you accuse the judges of having some
    political motivation when the judge decides against you?
        Ms. Hermandorfer. When a judge decides against me, I file
    an appeal and litigate the appeal. And I will say--I mean, I've
    been a public official subject to criticism, and all I can say
    is it's part of the job and you do your duties.
        Senator Welch. Right. Do you think it's proper for
    litigants to be used in that kind of language when they
    disagree with the decision that a court has made?
        Ms. Hermandorfer. Well, again, as a nominee, I don't want
    to give a thumbs up or thumbs down to any particular category
    of statements. It's a----
        Senator Welch. Alright. Well, let me ask you this. I know
    you signed a letter, I think, in your personal capacity, in
    support of--that was, I think, circulated and supported the
    Attorney General. And in that letter there was a reference to,
    ``a dark chapter of the United States Justice Department.''
    What specifically do you--were you referring to when you signed
    the letter that had that phrase in it?
        Ms. Hermandorfer. So, that letter was on behalf of female
    members of the State Attorney General's offices. I could just
    tell you some----
        Senator Welch. No, I'm asking--I know who it was on behalf
    of, but what the letter specifically said you're referring to a
    dark chapter of the United States Justice Department. So,
    explain what that dark chapter was and what specifically you
    had in mind.
        Ms. Hermandorfer. So, I spent the past 2 years litigating
    against rules, including Title IX and others, that we did not
    feel, as an office and as my client, reflected the proper
    meaning of the law, and indeed dismissed many well-meaning,
    deeply held concerns on the part of many women and others.
        And so, where I was coming from in signing that letter was,
    in my experience, litigating and often prevailing in those
    issues that we thought involved Federal overreach by the
    Department of Justice.
        Senator Welch. No, here's the issue for me that I think is
    getting so difficult in the courts. You can have different
    points. Citizens can have different points of view, and they
    don't have to attribute that difference to something radical
    anti-woman agenda or referring to the Justice Department as a
    dark chapter in the United States Justice Department.
        Because this is a big country, people have different points
    of view. Everyone's free to advocate what it is they want to
    advocate for. But now, it is custom that if the decision goes
    against you, you have a President who starts talking about
    monsters who want to take our country to go to hell. I guess I
    can't ask you to answer that, but you're going to be assuming,
    if you're confirmed, you're going to have the responsibility
    for really helping create a culture within the judicial system
    that hopefully restores respect, and that means respect for
    people with whom one disagrees. Thank you. I yield back
        Senator Hawley. Ms. Hermandorfer, let me just stay with
    this question about the Title IX litigation that Senator Welch
    was just asking you about. Tell us about the Title IX
    litigation that you carried on behalf of the State of
    Tennessee.
        Ms. Hermandorfer. Sure. In April 2024, the Department of
    Education issued a final rule interpreting Title IX, which of
    course, bars discrimination on the basis of sex and any
    federally funded educational program, interpreting that
    language to bar discrimination on the basis of gender identity
    and other ``sex-based characteristics.''
        And as part of that rule, which again, was a rule did not
    go through Congress, the Department of Education informed all
    federally funded educational institutions from pre-K through
    college that sex separated spaces like locker rooms and
    bathrooms must instead be assigned by gender identity and not
    sex. And in similar ways sex-separated programs like intramural
    sports and others fell in the ambit of that rule.
        Senator Hawley. Let me just stop you right there. I want to
    make sure we understand the significance of this. What you're
    saying is that the Biden Administration used an administrative
    process to interpret a law, landmark law passed by Congress
    Title IX to interpret it, to require your State, and indeed
    every State to allow men, biological men, into women's locker
    rooms to allow men, biological men into women's sports, to
    allow men, biological men into any space that a biological
    woman might otherwise claim under the ambit of Title IX. Is
    that correct?
        Ms. Hermandorfer. That's correct.
        Senator Hawley. And so, you litigated on behalf of your
    State to preserve--would you say that Title IX is a landmark
    piece of legislation?
        Ms. Hermandorfer. Absolutely.
        Senator Hawley. Would you say that Title IX took years,
    indeed, decades to achieve?
        Ms. Hermandorfer. That's correct.
        Senator Hawley. Would you say that Title IX is a
    cornerstone of women's sports and the ability for women to have
    the same opportunities as men at the collegiate level, and
    indeed every level, to have sports opportunities, athletic
    opportunities, leadership opportunities? I mean, is this an
    important statute?
        Ms. Hermandorfer. It is. And for a former athlete, it hits
    especially close to home.
        Senator Hawley. Yes. You've lived it, have you not?
        Ms. Hermandorfer. That's right.
        Senator Hawley. So, when the Biden Administration issued a
    rule, not a law not passed by this Congress, a rule that
    would've completely changed the meaning of Title IX, would you
    say that that's a pro-woman agenda?
        Ms. Hermandorfer. We argued that the considerations of
    women were not adequately accounted for in the rulemaking
    process, and virtually every court to consider that rule.
    Almost a dozen agreed with the position Tennessee advanced on
    behalf of six States in our litigation.
        Senator Hawley. Every Court virtually to consider the
    litigation agreed with your position. Is that correct?
        Ms. Hermandorfer. Including the Supreme Court in the stay
    application.
        Senator Hawley. Including the Supreme Court of the United
    States. Would you say it is fair to call the effort to
    undermine a landmark piece of legislation for women that you
    yourself benefited from that fair and equal opportunity? Would
    you say it's fair to call that a dark chapter in the history of
    this country?
        Ms. Hermandorfer. Certainly on behalf of Tennesseans, we
    thought that that rule was unlawful and inappropriate, and we
    were, you know, happy to succeed in the litigation against it.
        Senator Hawley. Well, I just want to tell you, I'm happy
    you succeeded in the litigation. As the father of a 4-year-old
    daughter, I'm delighted that you succeeded in the litigation. I
    want to thank you on behalf of her, my whole family. I want to
    thank you for going to battle for our daughters, for going to
    battle for the women you played sports with, for standing up
    for this landmark legislation and for fighting it.
        And yes, I want to say it was indeed a dark chapter. The
    last 4 years have been a hellacious chapter in the Department
    of Justice. Those aren't your words, those are mine, to be
    clear. But I think it's absolutely a fact whether we're talking
    about the assault on women's rights under the Title IX context
    and others, whether we're talking about the assault on
    religious believers.
        Let's not forget, this is the Department of Justice that
    recruited informants into Catholic parishes in this country. If
    that's not a dark chapter in this country's history, I don't
    know what the heck is. This is a Justice Department that
    activated the Counter Terrorism Division, Counter Terrorism
    Division, against parents who went to school board meetings. If
    that's not a dark chapter, I don't know what is.
        This is a government, an administration, the last 4 years,
    that collaborated with the biggest corporations in the world to
    censor speech they don't like, and then lie about it. If that's
    not a dark chapter, I don't know what is. In fact, I'd go so
    far to say it is the worst chapter, the worst in the history of
    the Department of Justice, the last 4 years.
        Those are my views, not yours, Ms. Hermandorfer. But I'll
    just say, when it comes to the litigation that you carried out
    on behalf of the State of Tennessee, I think you did a great
    service, not just to Tennessee, but for the Nation. And I want
    to thank you for it. Senator Cruz.
        Senator Cruz. Thank you, Mr. Chairman. Ms. Hermandorfer,
    congratulations. Welcome. I'm thrilled that you are seated here
    before the Committee. You are the very first appellate court
    nominee put forth by President Trump in this new
    administration. And it's symbolic that the seat you've been
    nominated to fill is the same one Democrats tried to hand the
    nomination to a woman named Karla Campbell, Karla with a K, in
    the Biden Administration.
        I'm glad that Republicans on this Committee stood firm and
    stopped Ms. Campbell's confirmation. She had a deeply troubling
    record. She affiliated with an explicitly Marxist organization
    that called for a working-class revolution and abolishing both
    the police and ICE. She financially supported a radical far
    left candidate that said that Republicans were ``siding with
    the devil,'' and she repeatedly misled this Committee about her
    past.
        That contrast tells a story. The Biden Administration tried
    to place a radical Marxist ideologue on the Sixth Circuit, a
    nomination that Republicans rightly stopped. And now under
    President Trump, we are restoring judges who respect the
    Constitution and the rule of law to the bench.
        Ms. Hermandorfer, your academic record is extremely
    impressive. You've clerked for not one, not two, but three
    Supreme Court justices; then-Judge Kavanaugh, Justice Alito,
    and Justice Barrett. Now, I would note the Chairman clerked for
    one Supreme Court Justice, Senator Lee clerked for one Supreme
    Court justice, and I clerked for one Supreme Court justice. For
    the record, I'm going to say I'm that you clerked for three,
    and I may have to filibuster your nomination because of it.
        But tell us what you learned clerking for those three
    jurists.
        Ms. Hermandorfer. So, I've taken so many lessons from those
    jurists. That the role of the judge is to carefully listen to
    all parties and carefully deliberate with respect to all cases
    that come before him or her, and to treat colleagues and
    litigants with respect, and to understand that you can disagree
    about the law without being disagreeable.
        I think the most important lesson, though, Senator Cruz, I
    learned, is that in our system, judges are intentionally
    insulated from political accountability precisely because
    they're going to issue rulings sometimes that some segments of
    the public or the majority may not agree with. And that's not
    always a pleasant task, but it's necessary to preserve our
    system.
        And so, too, it's necessary that judges have backbone, and
    grit, and courage in carrying out their obligations under
    Article 3. And so those are attributes that I witnessed, and
    that I would try to take with me to the best of my abilities,
    were I fortunate enough to be confirmed?
        Senator Cruz. So, you also were a star basketball player at
    my alma mater, at Princeton.
        Ms. Hermandorfer. Star might be a little strong, Senator.
        Senator Cruz. You were captain of the team. Tell us what
    you learned about playing competitive basketball at the
    collegiate level.
        Ms. Hermandorfer. My basketball journey started when I was
    very young, and my four parents who are here, you know, drove
    me around probably to every gym in Tennessee so I could pursue
    my dreams of playing college sports. And there's nothing like
    having to wake up early at 5 a.m. in the snow and go down to
    the weight room to instill self-discipline and grit.
        And I've carried those lessons and the work ethic with me.
    And I've been knocked down many times both on the court and
    off. And I learned that it's really about how you carry
    yourself, and your attitude, and your effort can get you
    through even when you're facing challenges.
        And I guess lastly, I would say playing basketball, I've
    had the pleasure of getting to know girls from all walks of
    life, from all over the State, all over the country. And so,
    getting along with folks from different backgrounds and who
    have different perspectives is something I have experience and
    would also try to take with me.
        Senator Cruz. Talk to us about the First Amendment and the
    importance of the First Amendment.
        Ms. Hermandorfer. Without sounding trite, you know, it's
    the First Amendment, for a reason, it protects both--I mean,
    the five main free freedoms. You know, the free exercise of
    religion, there's also the establishment clause, of course
    freedom of the press, freedom to petition the Government when
    you're want to change a law, freedom to assemble.
        And I can't remember if I said four or five, but the
    importance of that is that in our system, the people have the
    power to express their deeply held views and to try to make
    political change. And it's not up to the Government to stifle
    any views that it deems you know, heterodox or unorthodox. It
    is to protect the will of the people as they express it in
    their public accounts.
        Senator Kennedy [presiding.] Thank you, Professor. Senator
    Schiff.
        Senator Schiff. Thank you, Mr. Chairman. Ms. Hermandorfer,
    welcome. I'm sure you're aware that it was recently said by
    President Trump, ``It was suggested that I use the Federalist
    Society as a recommending source on judges. I did so, but then
    realized that they were under the thumb of a real sleazebag
    named Leonard Leo. A bad person who in his own way probably
    hates America. I want to ask you about this. You're a member of
    the Federalist Society. Correct?
        [Poster is displayed.]
        Ms. Hermandorfer. That's correct.
        Senator Schiff. And for how long? For how many years?
        Ms. Hermandorfer. I believe I joined in law school Senator
        Senator Schiff. So, over a decade ago, then?
        Ms. Hermandorfer. About a decade.
        Senator Schiff. And were you recommended for a judgeship by
    the Federalist Society?
        Ms. Hermandorfer. I have no knowledge of why it was
    recommended or whether the Federalist Society had any role.
        Senator Schiff. The Federalist Society does though
    recommend judges to the administration? Do they not or did they
    not?
        Ms. Hermandorfer. I had no involvement in that. I'm not
    sure I've seen reporting to suggest they had some involvement,
    but I have no personal knowledge of that, Senator.
        Senator Schiff. Do you think having been a member of the
    Federalist Society for over a decade, that they're under the
    thumb of a real sleazebag named Leonard Leo? Is that your view?
        Ms. Hermandorfer. In my perspective, the Federalist Society
    has been a wonderful place to get together with the many, many
    lawyers who are members and learn about the law and discuss
    issues. Aside from my own experience, I, as a judicial nominee,
    I don't think it's appropriate for me to comment on any public
    policy debate about the Federalist Society or the particular
    quotation you're referencing.
        Senator Schiff. Do you know Leonard Leo?
        Ms. Hermandorfer. I've met him a few times at Federalist
    Society events, but I wouldn't say that I know him well or that
    he knows me.
        Senator Schiff. Do you concur with the President's
    assessment that he is a sleazebag?
        Ms. Hermandorfer. Again, Senator, that type of
    interpersonal or political dispute, I don't think is
    appropriate for me to comment on as a judicial nominee, given
    that either the President or Mr. Leo could come before me as
    party to a litigation.
        Senator Schiff. You clerked for Judge Richard Leon, did you
    not on district court?
        Ms. Hermandorfer. That is correct.
        Senator Schiff. How would you describe Judge Leon?
        Ms. Hermandorfer. When I worked for Judge Leon, I had a
    wonderful experience. I think he was a judge who treated
    everybody with fairness and impartiality, and was wonderful to
    his law clerks. And it was a very enjoyable year clerking for
    him.
        Senator Schiff. And he took his responsibility seriously?
        Ms. Hermandorfer. In my experience, yes.
        Senator Schiff. And upheld the law and the Constitution, in
    your view?
        Ms. Hermandorfer. We did our best to do so.
        Senator Schiff. You're aware that he ruled against the
    administration and against the President with respect to the
    President's executive order against Wilmer Hale?
        Ms. Hermandorfer. I'm aware.
        Senator Schiff. Do you agree with Judge Leon's decision
    that the executive order was unlawful?
        Ms. Hermandorfer. That's pending litigation and it would be
    very inappropriate for me to express a view on the merits of
    that litigation or any other act of litigation?
        Senator Schiff. Well, no, the President has attacked the
    Federalist Society because the judges it has recommended don't
    always do what the President wants. Is that the role of a
    judge? Is that the role of Judge Leon or any other judge? Would
    that be your role to do what the President wants?
        Ms. Hermandorfer. That would not be my role. My role would
    be to carry out my oath, which would be to the Constitution
    first and foremost, and any other laws that bind the rules of
    decision.
        Senator Schiff. So, you're willing to rule against the
    administration, against Donald Trump's executive orders if you
    believe them to be unlawful?
        Ms. Hermandorfer. If that's what the law requires, Senator.
        Senator Schiff. You were also an attorney at Williams &
    Connolly. Is that correct?
        Ms. Hermandorfer. That's correct.
        Senator Schiff. And they represent Perkins Coie and the
    executive order case against that law firm. Do they not?
        Ms. Hermandorfer. I'm aware of that fact.
        Senator Schiff. Is it important that law firms be able to
    represent individuals or causes that are unpopular and that are
    at times in disagreement with the administration?
        Ms. Hermandorfer. So, certainly, as a lawyer who represents
    a client that has views that people don't always agree with, I
    think it's an important role of an attorney to take on matters
    no matter the political popularity.
        Senator Schiff. So, you think it's appropriate for law
    firms to take on cases against the administration?
        Ms. Hermandorfer. I would not purport to limit any party in
    the representation that it would choose. And I don't want to be
    seen as commenting on any of the active litigation involving
    these issues.
        Senator Schiff. And would you agree that it would be
    inappropriate for a President or administration to try to
    punish a law firm for taking on a client whose interest was
    adverse to the administration?
        Ms. Hermandorfer. So, Senator, you're referencing, I
    believe, the pending litigation. And again, I've articulated
    why it's important for clients to have law firms.
        Senator Schiff. I'm not referencing any particular case.
    I'm asking you as a general principle, should the President of
    the United States be able to retaliate against a law firm that
    takes a case for a client whose interest is adverse to the
    administration?
        Ms. Hermandorfer. Again, embedded in the premise of that
    question is something that is referencing active litigation,
    and I, just as a matter of prudence, don't want to be seen as
    weighing in either way on whether that has occurred in any of
    these executive order cases. I stand by my answer that it is,
    of course, the role of a lawyer to represent clients consistent
    with the bounds of the law and ethics, and that's what I've
    tried to do in my role.
        Senator Schiff. Thank you, Mr. Chairman. I yield back.
        Senator Kennedy. Professor, tell me about the Loper Bright
    case.
        Ms. Hermandorfer. Sure. So, Loper Bright is the case that
    overruled the Chevron doctrine. And the Chevron doctrine or
    originally required that if there was an agency statute that
    governs an agency's conduct, the agency gets deference, meaning
    a thumb on the scale when it's interpreting what that statute
    might mean as it's carrying out its duties.
        Loper Bright determined that that framework was
    inconsistent with the Administrative Procedures Act, and
    instead, that moving forward, court should decide all of those
    statutory interpretation cases as a de novo matter, meaning the
    agency doesn't get any sort of special head start.
        Senator Kennedy. How much difference did a Federal court
    have to give to an administrative agency under the Chevron
    doctrine?
        Ms. Hermandorfer. Sure. So, the court would originally make
    a step one determination about whether the statute was
    ambiguous or not. That's in the eye of the beholder sometimes.
    But if the court determined that the statute was ambiguous and
    the relevant sense, meaning it didn't resolve the question the
    agency was facing it would defer to the agency's view of the
    meaning so long as the agency's interpretation was well
    explained and reasonable.
        Senator Kennedy. What's the relationship, if any, between
    Loper Bright and West Virginia v. VEPA?
        Ms. Hermandorfer. So, that's a fascinating question. I
    think, you know, West Virginia v. VEPA applied Chevron, but
    said, we're less likely to find ambiguity. And indeed, Congress
    needs to speak clearly if the agency is purporting to resolve a
    matter of in the court's terms political or social
    significance.
        And following Loper Bright, of course, there is no
    difference. And I think some have commented, including Justice
    Barrett, that the best way to think about West Virginia v. VEPA
    in interpreting statutes is that it informs the context of how
    we understand what the statutory terms mean in the context of
    an agency delegation. So, the fact that the agency is
    purporting to carry out its duties might resolve whether or not
    the particular question is sufficiently clearly delegated by
    Congress.
        Senator Kennedy. That just seems to me like a distinction
    without a difference. I mean, doesn't Loper Bright wipe out the
    need for West Virginia v. VEPA? Why do we still need a major
    question, Doctor?
        Ms. Hermandorfer. So, it's certainly true that West
    Virginia v. VEPA, I think was partially driven by non-
    delegation doctrine concerns and concerns about deferring to
    agencies. When doing so threatened our separation of powers
    after Chevron has been overruled. Of course, that might be
    relevant in a smaller number of cases. But I do think that the
    major questions doctrine still has vitality and understanding
    the best meaning of the statute as Loper Bright now requires.
        Senator Kennedy. What's the Public Rights doctrine?
        Ms. Hermandorfer. So, most recently, the Public Rights
    doctrine has been applied in the Seventh Amendment context. And
    the Supreme Court has a decision named Jarkesy where there's a
    line of precedent saying that if a matter involves public
    rights, so the conferral of a public benefit, for example that
    might be the type of matter that Congress can vest adjudication
    of in in Article 1 Tribunal or an administrative agency.
        Senator Kennedy. What's a public right?
        Ms. Hermandorfer. That's a very difficult question to
    answer in many cases.
        Senator Kennedy. That's why I'm asking you.
        Ms. Hermandorfer. Yes. So, I think the best way to think
    about it is to contrast it with private rights. And what the
    Supreme Court has instructed with respect to private rights is
    that they're what we would think of as common law-type claims.
    So, contracts, property torts, the stuff of Westminster in the
    court's terms.
        And so, if you have a matter like that, that's the type of
    matter that needs to go before a jury to ensure that the
    Seventh Amendment's jury protections are abided by contrast. If
    there's an internal administrative process, social security
    benefits things like that, that looks more like a public right,
    that wouldn't have existed, but for the Government granting it.
        Senator Kennedy. And what did the Supreme Court hold in--
    was it Jarkesy?
        Ms. Hermandorfer. That's right.
        Senator Kennedy. What did the Supreme Court hold?
        Ms. Hermandorfer. So, the Supreme Court there held that
    certain matters of the Securities and Exchange Commission
    actually looked more like common law fraud claims and more like
    property-based claims that must be tried to a jury in court and
    cannot be vested in the in-house SEC proceedings to be tried
    before an administrative tribunal.
        Senator Kennedy. My time is done. Thank you, Professor.
        Senator Hawley [presiding]. Okay. Against my better
    judgment, I promised Senator Schiff because I skipped him in
    order, I promised him one more question. All right, Senator,
    this gavel will never come to me again, though, if you ask more
    than one question. So, I'm going to hold you to it.
        Senator Kennedy. Well, I've got the gavel.
        [Laughter.]
        Senator Hawley. Oh, there we go.
        Senator Schiff. This is just in honor of Mike Lee's
    birthday. His wish was that I got an extra question. I wanted
    to just followup on one of your answers to Senator Durbin. He
    asked about the necessity of following court orders, and you
    were very specific in your answer and said that if the Supreme
    Court rules that you have to, then you have to follow the order
    as it pertains to the parties to the case.
        I want to ask you about a lower court ruling, though. You
    would agree, would you not, that if a district court rules
    pending appeal, or pending any other stay or action by a higher
    court, that the parties covered by that order, including the
    administration, need to abide by that order?
        Ms. Hermandorfer. As I mentioned to Ranking Member Durbin,
    the normal course, if you disagree with the court order, is to
    seek appellate review in the way that you mentioned. Yes. I do
    note that my understanding is yesterday there was some
    testimony about, you know, particular cases and nuances of that
    debate that I think are active. And obviously, the interaction
    of Article 3 and Article 2 is an actively litigated matter. But
    absolutely, in the normal course, the proper way to vindicate
    your rights is through the appellate process.
        Senator Hawley. Thank you. All right. All right. Thank you.
    Thank you, Senator. No, really, John?
        Senator Kennedy. Yes.
        Senator Hawley. Oh, my gosh. Look at this. All order is
    dissolving. Okay, go ahead. But that's it, I'm serious. Senator
    Grassley's going to come in here and hit me with this gavel.
        Senator Kennedy. I want to be sure I understand, Professor.
    District court rules on the case. You got plaintiff and
    defendant. You are representing the plaintiff. Your plaintiff
    is very unhappy. Are there any circumstances under which you
    would advise the plaintiff to ignore the Federal court order?
        Ms. Hermandorfer. So, of course, as a judicial nominee, I
    would be trying to issue proper----
        Senator Kennedy. I don't want to split hairs here.
        Ms. Hermandorfer. No, the normal process is to----
        Senator Kennedy. I know what the normal process is. Can you
    think of any circumstances where you would tell the plaintiffs,
    ``No, you don't pay attention to this Federal judge.''
        Ms. Hermandorfer. So, the problem with answering it that
    categorically is that there are potentially some very
    extraordinary situations you could imagine----
        Senator Kennedy. Like what?
        Ms. Hermandorfer [continuing]. That could come before me as
    a judge----
        Senator Kennedy. Like what?
        Ms. Hermandorfer. So, this is a subject of tremendous
    scholarship.
        Senator Kennedy. I'd be careful there. I'd be real careful.
        Senator Hawley. All right, Senator. All right, all right. I
    promised you one. That was four, I think. See what you started,
    Adam.
        Ms. Hermandorfer, thank you for your testimony. You are
    excused. And with that, I'll invite the four district court
    nominees to come forward to the witness table. And we'll take
    just a moment here, and we'll administer the oath and begin the
    second panel.
        [Pause.]
        Senator Hawley. All right. It's the custom of this
    Committee to administer the oath to all nominees who come
    before the Committee. And you're all standing and ready to do
    it. So, I'll stand with you. If you'd raise your right hand and
    repeat after me.
        [Witnesses are sworn in.]
        Senator Hawley. You may be seated. Well, we welcome all of
    you here today. It is our normal process, if you so desire, to
    allow you to introduce any folks who are with you, including
    your families, and then to give a brief opening statement. And
    we'll just go down the panel. We'll start with Mr. Bluestone,
    and then proceed all the way down to Judge Stevens. Mr.
    Bluestone, the floor is yours.

     STATEMENT OF ZACHARY M. BLUESTONE, NOMINEE TO SERVE AS UNITED
       STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI

        Mr. Bluestone. Thank you, Senator Hawley. I'd like to start
    by thanking Chairman Grassley, Ranking Member Durbin, and the
    Committee for holding this hearing. Also, incredibly grateful
    to the President for the honor of this nomination. To you,
    Senator Hawley, and Senator Schmitt, thank you for the kind
    words and your introductions. Thank you for your support
    throughout this process, and thank you so much for the trust
    that you both placed in me as a deputy solicitor all those
    years ago when you were both serving as Missouri Attorney
    General.
        Over the last few months, I've thought a lot about
    relationships and community. This process has reminded me of
    just how blessed I am with the people in my life. They're
    absolutely the reason I'm here today. Fittingly, the
    opportunity to serve my community is the reason I want to
    become a Federal judge. I can think of no better use of my
    talents to make a meaningful impact on the lives of those
    around me.
        I regret not having time to recognize everyone who's gotten
    me here. But I'd like to highlight just a few, starting with
    four key mentors; Senator Jim Talent, John Sauer, Jeff Jensen,
    and Judge Ray Gruender, who's here today with his wonderful
    wife, Kim. Judge Gruender is a rare combination of brilliance
    and humility, and he's a model I'll strive to emulate, if
    confirmed. I'm also lucky to be joined by three lifelong
    friends; John, Todd, and Broth, and I owe my clerk, Daniel, a
    huge debt of gratitude for his support.
        As for family, it means the world to me that my brother
    Alex, and mother-in-law, Shannon, have traveled so far to be
    here. And there's no distance that would've kept my mother from
    coming. In many ways, today is the culmination of all the work
    she put into ensuring that I had the educational opportunities
    that my parents never did. I also have her to thank for my
    faith and commitment to family. My mom's partner, John is here
    as well, and I'd like to recognize him for his service to our
    country both as a Marine in Vietnam and through his career with
    the FBI.
        My biggest supporters are behind me. My wife, Abby, and our
    little bud, Ezra, who's been instructed to cry if I get any
    tough questions. I'm looking in that direction, Senator
    Kennedy. I actually met Abby when we were clerking in the
    courthouse where I hope to serve, and she's been a pillar of my
    life ever since. She showed so much strength and devotion as a
    mother, and I'll never be able to repay her selflessness over
    the last few months, especially managing travel logistics with
    the baby despite having her own major oral argument in St.
    Louis yesterday.
        Finally, I'd like to recognize my dad, Randy, who we lost
    to a battle with leukemia almost 20 years ago. My dad's
    fearlessness and grit in starting a business are something that
    I'll always admire, particularly after having helped run that
    company after his passing. My dad often had some choice words
    for his lawyers after getting legal bills, but I know he's
    looking down today with a lot of pride.
        Thank you for giving me a few minutes to recognize those
    who got me here, and I look forward to your questions.
        Senator Hawley. Thank you very much, Mr. Bluestone. Mr.
    Divine.

       STATEMENT OF JOSHUA M. DIVINE, NOMINEE TO SERVE AS UNITED
    STATES DISTRICT JUDGE FOR THE EASTERN AND WESTERN DISTRICTS OF
                                MISSOURI

        Mr. Divine. Thank you, Senator Hawley. I want to thank
    Chairman Grassley, Ranking Member Durbin for holding this
    hearing today. I want to thank Senator Hawley and Senator
    Schmitt for all the support you've provided to me during this
    process. And of course, most of all, I want to thank President
    Trump for giving me the honor of this nomination.
        I'm joined today in spirit and in person by too many to
    name, but I'll mention a few. My wonderful parents, James and
    Susan are here, so too is my wife of 15 years. As Senator
    Hawley mentioned earlier, Elizabeth is pregnant with our
    seventh child. We have been truly blessed. The other six
    children are here as well. You haven't heard from them because
    the younger two, the boys, have been asleep the last 2 hours.
        Fifteen years as a husband, and 13 as a father has taught
    me much more than I ever learned in school. Alice, for example,
    our miracle child, had open heart surgery when she was just 2
    months old. And grappling with the many challenges she has
    faced since then, has taught us the virtues of patience,
    prayer, and perspective.
        On a professional level, I'm especially grateful to the
    Attorney General of Missouri, who's here today, Andrew Bailey.
    When he hired me as Missouri Solicitor General, I knew I was
    being asked to fill big shoes. My predecessor, after all was
    John Sauer, who is now the U.S. Solicitor General.
        It has been a privilege to serve the people of Missouri
    these past years. And sitting here today, I'm reminded of what
    Justice Ginsburg told this Committee a few decades ago, ``What
    has become of me could happen only in America.'' My grandmother
    born into poverty overseas, never had a day of education in her
    life. My dad was luckier. He did miss several years of school,
    but grandma eventually pinched enough pennies to bring them
    over here to America. And once here she learned English by
    watching American soap operas, she made a living cleaning
    people's homes, and she did her best to navigate the anti-
    Italian discrimination that was all too common at the time.
        Today, barely a generation later, I sit here before this
    agust body having been given extraordinary opportunities, both
    professional and educational. But the most extraordinary thing
    about my family's story is just how ordinary it is. No other
    country provides so much opportunity to so many, and that is
    one reason I've dedicated my career to life of public service.
        My dedication to public service was reinforced a year ago
    when a life-threatening accident put me in the ICU. It left me
    unable to walk. For 6 months, I was confined to a wheelchair
    and then a cane. I'm still recovering to this day, but those
    are the kinds of experiences that humble you, and they're the
    kinds of experiences that broaden your empathy to those whose
    trials and tribulations last, not just a season, but a
    lifetime.
        Fortunately, although we come from different walks of life,
    the law promises equality. I had the privilege to clerk for a
    judge who, when he was Attorney General of Alabama, gave a
    speech condemning and rebuking the segregationists of that
    State's past. While lesser men like Governor George Wallace had
    promised to thwart the Constitution, Attorney General Bill
    Pryor, four decades later promised the opposite; ``Equal under
    law today, equal under law tomorrow, and equal under law
    forever.'' If confirmed, that is how I will judge.
        I look forward to answering the Committee's questions.
        Senator Hawley. Thank you very much, Mr. Divine. Ms.
    Lanahan.

       STATEMENT OF MARIA A. LANAHAN, NOMINEE TO SERVE AS UNITED
         STATES DISTRICT JUDGE FOR EASTERN DISTRICT OF MISSOURI

        Ms. Lanahan. Thank you, Senator Hawley, and Senator
    Schmitt, for your kind introductions and support. I'd like to
    start by humbly thanking President Trump for nominating me to
    this position. Thank you, to Chairman Grassley, Ranking Member
    Durbin, and all the Members of this Committee for the
    opportunity to address the Committee today.
        I also have many other people to thank who are here
    supporting me. Thank you to my husband and best friend Michael
    Lanahan, who's here. Michael is responsible for introducing me
    to the great State of Missouri, which I have grown to love and
    have since devoted my career to. My oldest son is also here. He
    is 7 years old. And my other two children, 5-year-old and a 1-
    year-old are not here because I was not so sure that they would
    be able to abide by Senate decorum. So, they're at home with
    Michael's parents, and I'd like to thank Kevin and Kathy
    Lanahan for taking care of them.
        Thank you to my parents, Kevin and Anne Hassett, who are
    here. I would not be who I am today without their support and
    guidance. Thank you also to my siblings, and especially to my
    brother, Kevin, who made it out here and for bringing his
    family with him. That includes my sister, Adriana Hassett, who
    is a newly minted American citizen, their children and Audrey's
    mother-in-law, Susanna Iya Erda.
        Thank you to my friend Laurel Sagar, who is here and who is
    an adoptive aunt to my children in St. Louis. And I would also
    like to extend my thanks to the two judges who I clerked for.
    Judge Gruender, who is here today with his wonderful wife, Kim,
    and Justice Zahra, who is unable to make it today. These two
    judges have greatly impacted my understanding of what a judge's
    role should be. They are both committed to following the law as
    written, and fairly and impartially resolving legal disputes
    regardless of a party's background characteristics.
        I also want to extend my thanks to Missouri Attorney
    General Andrew Bailey, former Missouri Attorney General, and
    now Senator Schmitt. First Assistant Attorney General Jay
    Atkins, my boss, Josh Divine, who is next to me and the many
    other colleagues who I have worked with at the Missouri
    Attorney General's office to serve the people of the State of
    Missouri.
        And finally, thank you to everyone else who has helped me
    and supported me along the way, including my many family
    members, friends, teachers, mentors, and former colleagues at
    Thompson Coburn and Charter Communications. I am honored to be
    nominated for this position, and if confirmed by the Senate, I
    pledge to decide cases fairly and impartially according to the
    rule of law. Thank you.
        Senator Hawley. Thank you. Judge Stevens.

      STATEMENT OF HON. CRISTIAN M. STEVENS, NOMINEE TO SERVE AS
     UNITED STATES DISTRICT JUDGE FOR EASTERN DISTRICT OF MISSOURI

        Judge Stevens. Thank you, Senator. Thanks to Chairman
    Grassley. Thanks to Ranking Member Durbin for holding this
    hearing. Thank you, Senator, for Chairing the hearing. Also, I
    want to thank all the Members of the Committee who are here
    today for their attention and their time. Also, of course,
    Senator Hawley, Senator Schmitt. I thank you for your support,
    as well as for your kind words earlier. Frankly, I'm humbled.
        I also want to thank my family who are here today. First
    and foremost, my wife, Lee. My wife is my rock. I want to thank
    her for her support over the years, for her sacrifice, for her
    grace throughout my career, and at this time, also my children.
    My, our oldest boy, Jack, is here, our son, Hank, and our
    daughter, Mary Rose. And all candor to the Committee, Mary Rose
    expressed this morning that she really didn't want to come
    because, ``This is boring'' but she is here, and so far so
    good.
        I also, of course, want to thank my parents; Ed and Melita
    Stevens are here today. And I can't begin to thank them for all
    they've done, for myself and my siblings, as children and all
    the way up through till today. They've been a great example of
    great Americans, great citizens who've raised their children,
    loved them, and supported them through thick and thin.
        I'd also like to thank my law clerks Clayton Watts and
    Tyler Dodd. My law clerk, Clayton, is here today. He's agreed
    to continue on for another year, serving with me regardless of
    which court I happen to be on at the time. So, I'm glad that he
    could make it here.
        I'd also, if I could, like to remember one other person
    that's not here today; my maternal grandfather, Edmund W.
    Albright. He was a self-made lawyer in St. Louis. He put
    himself through law school, hung out a shingle and took
    whatever case came in the door.
        As a young man, he taught me to love the law and our
    profession. I think of him all the time. Today, I'm wearing his
    watch, which has kept time for me throughout my career. I have
    his portrait in my chambers back in St. Louis, and I wish that
    he could be here today for this moment.
        I also would like to talk a little bit about my career to
    this point. I have the privilege of being a judge, a State
    judge in Missouri on the Missouri Court of Appeals Eastern
    District. I was appointed that position in 2021 pursuant to the
    non-partisan Missouri Court plan. Before that, I had the honor
    of serving as first assistant attorney general to then-Attorney
    General, Eric Schmitt of Missouri.
        That was a great privilege. A lot has gone on Senator,
    since our meeting at PJ's. I will say, if I could that I'm glad
    we met at PJ's and not at Cracker Barrel. I understand that
    some attorneys general met with staffers at Cracker Barrel,
    which is--I love Cracker Barrel, but PJ's is the place in
    Kirkwood.
        And before that, I was in private practice at several
    points in my career, early in my career and in later years. And
    so what that means basically, is that I've handled civil cases,
    I've had handled criminal cases, I've appeared in Federal Court
    and State Court, and particularly with the regard to the United
    States District Court for the Eastern District of Missouri.
        Senator, as you acknowledged earlier I was an assistant
    U.S. attorney there for 15 years. I would get up from my desk
    on the 20th floor of the Thomas F. Eagleton Courthouse, go down
    a few floors to see the Article 3 judges or the magistrate
    judges on at least a weekly basis. So, I can tell you that if
    this body deems fit, then my returning to the U.S. District
    Court for the Eastern District of Missouri would be like coming
    home.
        So, I appreciate the opportunity. I thank you for this
    hearing, and I look forward to answering your questions.
        Senator Hawley. Thank you, Judge. We will start now the
    questioning. I will lead us off. Mr. Bluestone, let me just
    start with you, and we'll just go down the panel. You are
    currently a violent crimes prosecutor in the United States
    Attorney's Office in the Eastern District. Tell us a little bit
    about the work that you do, the kinds of cases that you
    prosecute, and what you've learned from that experience.
        Mr. Bluestone. Thank you, Senator Hawley. Being an AUSA in
    the Eastern District of Missouri has been probably the most
    fulfilling job that I've had. It was commended to me by Judge
    Gruender, and frankly, before I clerked for him, it was not
    something that was really on my radar. But as both of my home
    State Senators are aware, there has been a violent crime
    epidemic in the city of St. Louis, in particular, in the area
    surrounding it. And it has been so gratifying to be able to do
    something about that.
        I prosecuted carjacking offenses, armed robberies and other
    gun crimes, drug crimes. Have been involved in white collar
    investigations as well. And the work is extremely rewarding. I
    will say I fully appreciate the importance of every single case
    that would come before my court, if I were so fortunate to be
    confirmed. Having seen probably north of 100 cases myself it's
    incredibly significant to the defendants who would be appearing
    before me, the victims, their families, law enforcement who
    were involved. And I take that responsibility very seriously.
        And I would also note that in addition to being a violent
    crimes prosecutor, I also serve as our district's appellate
    chief. So, and I handle my own cases certainly, but also am
    responsible for overseeing every appeal, both civil and
    criminal that comes through our office.
        Senator Hawley. Is it safe to say, Mr. Bluestone, given
    your experience as a Federal prosecutor, the volume of cases
    that you've seen and handled that you know your way around a
    courtroom?
        Mr. Bluestone. I would like to think so, Senator.
        Senator Hawley. We would like to think so, too.
        Mr. Bluestone. I've supervised more than 1,000 cases, and
    as I mentioned, handled more than 100 of my own.
        Senator Hawley. Fantastic. Mr. Divine, let's talk a little
    bit about your experience. You are the solicitor general of the
    State of Missouri. If you had to ballpark it, this may be
    tough, but if you had to ballpark it, how many cases would you
    say that you have litigated just in your role as a solicitor
    general? You were deputy solicitor general for several years,
    but let's just leave that to one side. Just as SG, how many
    cases?
        Mr. Divine. I mean, it would be impossible to know. It's in
    the hundreds of cases that I have supervised or personally
    litigated myself as solicitor general. I oversee the appeals
    for 200 attorneys in the office. We're getting a lot of appeals
    that are coming through, that we're supervising on a daily
    basis.
        I also have a second job, not just solicitor general, but
    also the director of Special Litigation. And so I'm in charge
    of the unit, the trial unit that is tasked with taking some of
    the most complicated matters that the State of Missouri is
    dealing with and taking those matters to court, to trial court
    especially.
        Senator Hawley. So, in these dual roles, you have
    represented the State of Missouri in trial courts?
        Mr. Divine. That's right.
        Senator Hawley. And in appellate courts?
        Mr. Divine. That's right.
        Senator Hawley. And in the State supreme court?
        Mr. Divine. That's right.
        Senator Hawley. And in the United States Supreme Court?
        Mr. Divine. That's right.
        Senator Hawley. You handled some of the office's most
    complex matters. Most complex litigation. Give us one example
    of a piece of complex litigation that you have handled and what
    you learned from it.
        Mr. Divine. Yes, I think the student loans cases that the
    office argued, we've now had three of those cases over the--
    during the previous administration. Those were very, very quick
    cases. The administration at the time was trying to cancel
    hundreds of billions of dollars in student loans. We felt that
    that was unlawful. There wasn't any statutory basis for that.
    The courts ultimately agreed with us in all those cases, but it
    was a very, very quick-moving thing, and we needed to move
    quickly to ensure that there wasn't permanent irreparable harm.
        So, one thing we did in one of those cases, we actually
    sued before the rule had been published, which is a pretty
    novel thing to do. And we were able to come up with an
    interesting argument that ultimately prevailed in court for why
    we were able to do that. We showed that there is irreparable
    harm, $200 billion was about to go out the door, and we
    ultimately prevailed in that litigation.
        Senator Hawley. And your success record is hard to argue
    with. I mentioned it in my opening statement, what you have won
    in judgments for the State of Missouri through the litigation.
    You've handled totals in the hundreds of billions if you add it
    all up. I mean, is that correct?
        Mr. Divine. That's right. I think about $700 billion,
        Senator Hawley. $700 billion. That's pretty good. General
    Bailey, that's pretty good.
        Ms. Lanahan, in my expiring moments here, let me just ask
    you to say a word about your extensive and varied legal career.
    You're the principal deputy solicitor general now for the State
    of Missouri. If you had to ballpark, how many cases would you
    guess that you have handled in trial courts, appellate courts,
    you know, put them all together. I mean, what would it be?
        Ms. Lanahan. Certainly, upwards of 50. And I have also been
    in charge of many of the appeals in our office. I oversee
    directly at least one-fourth of the appeals, and I review them
    before they are sent in. And I've been doing that for the last
    4 years or so. And we have numerous, numerous appeals out of
    many, many groups. So, that's employment law. And to remember
    that when you're doing an appeal, you're not only dealing with
    the trial court issues and whether the trial court got it
    right, but also the appellate issues, which is a whole another
    layer of separate issues on top.
        Senator Hawley. Very good. Well, Judge Stevens, I wanted to
    ask you a whole bunch of extremely difficult questions that
    that would've really been impossible to answer, but I'll leave
    that to Senator Schmitt. But first, Senator Durbin.
        Senator Durbin. Thank you very much, Senator Hawley. I feel
    like a kid from East St. Louis in the presence of a lot of St.
    Wilson's. I hope that I can stand up from my side of the river
    at least to some extent. Let me ask a few questions.
        Mr. Divine, you have referred to yourself as a zealot for
    the anti-choice movement. You previously wrote and I quote,
    ``Because we know a genetically unique human comes into
    existence at fertilization, abortion should not be ethically
    permitted.'' Let me ask you a couple questions. Do you believe
    an IVF embryo is a person?
        Mr. Divine. Thank you, Senator. My answer to that question
    in any policy question or political question that might be
    asked of me, is going to be the same exact answer that I know
    this Committee has heard from hundreds of nominees before me,
    that Justice Kagan gave, that Justice Barrett gave. I cannot
    talk about political disputes. That is obviously a hotly
    litigated issue and hotly disputed issue right now. So, I just
    cannot, under the canons of judicial ethics, talk about those
    kinds of political disputes.
        Senator Durbin. That's what I expected to hear. Do you
    believe in vitro fertilization should not be ``ethically
    permitted''?
        Mr. Divine. Can you tell me where the quote is coming from?
        Senator Durbin. I'll try to find that from the staff while
    you're thinking about the answer.
        Mr. Divine. So, I don't know the context of that, of what
    you're quoting to me right now.
        Senator Durbin. We're looking for the exact source on that.
    So, let's go to another question along that all the other
    members of this panel might address. I'm not going to get into
    the point made by Senator Blackburn about one of our witnesses
    yesterday saying she had some equivocation on following court
    orders, but as demonstrated by Senator Hawley, this panel has
    extensive court experience. So, the question I'd like to ask of
    each of you do you believe that the executive branch of our
    Government should be allowed to defy a court order? Mr.
    Bluestone?
        Mr. Bluestone. Thank you, Senator. I would have to take
    some caution in answering that question because this is a hotly
    litigated issue right now. But I would echo what we heard
    earlier in the hearing today, that generally speaking, that is
    of course, the rule.
        Senator Durbin. Mr. Devine?
        Mr. Divine. Thank you, Senator. My understanding of the
    doctrine is it is almost always required that you've to obey a
    court order. The only exceptions are for if there's a lack of
    jurisdiction, if there's impossibility. There is a well-
    recognized doctrine of exceptions to that. And so, you would
    have to check to see whether something fell within one of those
    very rare exceptions.
        Senator Durbin. But that would lead to an appeal, would it
    not?
        Mr. Divine. Certainly, you can appeal, and you would
    typically do that sort of thing in a jurisdictional setting.
    There have been cases before where a court has ordered somebody
    to do something that was literally impossible for them to
    comply with. And then in response to sanctions motion or
    whatever they've defended themselves on----
        Senator Durbin. That's the only exception you can think of?
        Mr. Divine. There's a doctrine of well-recognized
    exceptions. There are some other situations, for example, in
    privilege issues. If a court has ordered somebody to disclose
    something and they're claiming privilege, sometimes in certain
    States especially, sometimes they actually have to defy that
    order to appeal it. That's the only way to appeal it. And
    that's a recognized exception in those circumstances.
        Senator Durbin. But there is a legal process that you
    follow if you're going to assert that sort of defense, correct?
        Mr. Divine. That is correct.
        Senator Durbin. And if you don't assert that, if you accept
    this as a final order, are you bound to follow that order?
        Mr. Divine. I stand by my previous answer. There's a
    doctrine of exceptions, but in almost all circumstances, the
    answer is yes.
        Senator Durbin. Ms. Lanahan?
        Ms. Lanahan. Thank you. I would agree basically that the
    typical rule is that parties before a court are bound by that
    court order. I think there have been a couple of exceptions
    that the panel has discussed. But I think as a general matter,
    that that is correct. I wouldn't want to go into specifics
    because this is a hotly litigated issue as Ms. Hermandorfer had
    talked about earlier.
        Senator Durbin. Mr. Stevens?
        Judge Stevens. Yes, Senator Durbin. As a judge, I do expect
    parties to follow my orders. Obviously, there's been references
    to other narrow exceptions to that rule. Frankly, with almost 4
    years on the bench, I haven't encountered any of those
    exceptions. So, yes, I expect parties to.
        Senator Durbin. And each one, I want to make this clear. If
    you have a court order applying to you, you have to follow it
    or appeal it. That's my conclusion. Is that yours?
        Judge Stevens. Well, I expect that parties will follow my
    orders, yes.
        Senator Durbin. Well, I'm asking you whether or not you not
    only expect it, whether that is part of the rule of law in
    America, and I think it is, isn't it?
        Judge Stevens. Well, I think yes. There's a process,
    obviously before our court. If a litigant doesn't like a
    decision that they've gotten in our court, then they can ask
    for transfer from the Missouri Supreme Court.
        Senator Durbin. Mr. Divine, the quote comes from The
    Mirror, October 6, 2010. In The Mirror, you called yourself a
    zealot for the pro-life movement. So, I'll ask the question
    again. Do you believe in vitro fertilization should not be
    ethically permitted?
        Mr. Divine. Senator, I don't share the characterization of
    the article, which was written when I was a teenager. When I
    use the term zealot, I was referring to--I was using the same
    term you used in the March 26 hearing earlier this year, which
    is, if you're an advocate for a cause, you have a duty to
    advocate that cause energetically. I think Americans of all
    stripes, if they believe in an issue, they should advocate
    those issues energetically.
        Senator Durbin. So, where are you on in in vitro
    fertilization?
        Mr. Divine. Senator, I don't think any of my articles in
    college, and I've disclosed over 200, has ever taken a position
    on that.
        Senator Durbin. Well, talk--forget your college. I'm sure
    it was an exciting experience. Let's talk about now. You want a
    lifetime appointment to the Federal bench, and I'd like to know
    your position on in vitro fertilization.
        Mr. Divine. Senator, you said you weren't surprised by my
    previous answer, which has been given by hundreds of nominees
    before me. I can't talk about those politically contentious
    issues.
        Senator Durbin. After Alabama made that fateful ruling
    about saying that an IVF embryo was a person, there was an
    effort by most mainstream people in politics in both parties to
    clarify their position on in vitro fertilization, including
    current President of the United States. The fact that this
    panel is, at least, Mr. Divine is, struggling with that is
    unfortunately a tell as to what we can expect from you if you
    nomination is approved. I yield.
        Senator Hawley. It's going to be Senator Schmitt's time,
    but can I just ask, Mr. Divine, are you running for office?
        Mr. Divine. No, Senator. I've never been a political
    candidate.
        Senator Hawley. Are you seeking the nomination of a party
    or the approval of voters?
        Mr. Divine. No, Senator.
        Senator Hawley. You've been nominated to be a judge, is
    that correct?
        Mr. Divine. That's correct.
        Senator Hawley. Will you be able to faithfully follow the
    law as you understand it?
        Mr. Divine. Absolutely. And in fact, in my day to day when
    I'm advocating the interest of the State of Missouri, I set
    aside my own personal beliefs every single time I'm advocating
    the interest of my client.
        Senator Hawley. And what's the controlling Supreme Court
    case on the life issue now, as you understand it?
        Mr. Divine. The Dobbs decision.
        Senator Hawley. Will you follow it faithfully?
        Mr. Divine. Absolutely.
        Senator Hawley. Senator Schmitt.
        Senator Schmitt. Thank you. I mentioned this in the
    introduction, but I'm not sure we--somebody who can probably
    figure this out. I'm not sure it's ever happened in the history
    of our republic, that within the last seven or 8 years, you
    have two former attorneys general from the State of Missouri in
    the U.S. Senate in a confirmation hearing with four nominees
    for district court position that also served in that office in
    the last seven or 8 years.
        So, it's a pretty unique moment. And also, would be in a
    courthouse named after Tom Eagleton, who was an attorney
    general in Missouri and served in the U.S. Senate. So, it's a
    pretty it's a great day for all of you and your families. We're
    so glad that you could make it and share this really special
    experience. So, maybe the most important question for all of
    you, just to ask each, you know, to answer separately, how
    great was it to work for Eric Schmitt?
        [Laughter.]
        Senator Schmitt. I'm joking. By the way, you can add that
    to augment that to any question that's asked if you choose, but
    I'm not going to make you do that under oath, maybe.
        But I guess just to open it up for each one of you to
    answer, which may be a little bit of a different question
    that's often asked, each one of you have practiced before
    judges, you've clerked for judges in sort of different
    capacities. What is one thing that you would take from that
    experience, whether it's before a judge, or working from a
    judge that you saw a judge do that you would like to emulate
    now as you hopefully become a Federal judge?
        Mr. Bluestone. I'll take on with some risk. That first
    question before I dive into this one. And I will quote from
    now-Solicitor General John Sauer, that I love you both equally,
    and it was great working for you both.
        Senator Schmitt. He had a different answer once Senator
    Hawley left before the record.
        Mr. Bluestone. I have another mentor in the room, as I
    mentioned, Judge Gruender. And I will say, just thinking back
    to seeing him presiding over appeals, he was tremendously
    gracious with the parties that appeared before him. He gave
    everyone an opportunity to address what he would see as the
    weaknesses and their arguments, and was honest with them about
    that. And I think certainly the way that he approached the
    parties would be something I would hope to emulate.
        Mr. Divine. Senator Schmitt, you were my favorite Attorney
    General who I worked for in 2019.
        [Laughter.]
        Mr. Divine. You know, one, one of the things I really
    appreciated working for both Chief Judge William Pryor, and
    also Justice Thomas, is just the humility that both of them
    brought to the bench. I mean, you know, it wasn't unusual for a
    judge or some other judges in the building to kind of have an
    initial inclination of what the correct answer is going to be
    and then change their minds as they're going through the
    process. And I think being able to--being open to that sort of
    thing, being open to having your mind changed is a very
    valuable asset for a judge.
        Ms. Lanahan. Thank you, Senator Schmitt. And one of the
    things I loved the most while I was working for your office was
    the opportunity to be a part of the way that democracy works in
    this country. So, in the State of Missouri, the people of the
    State of Missouri elect their representatives. Then the General
    Assembly makes laws, and then our job as almost all those laws
    are challenged at one point or another, and it's our job in the
    Missouri Attorney General's office to give those laws defense.
        And so it is important as a role as, for instance, a public
    defender's role in the democratic process to protect and to
    defend those laws that are passed by the State, the people of
    the State of Missouri.
        As for things I learned from my judges, I think both of my
    judges, and I just want to talk about Judge Gruender, one thing
    that's coming to mind is that the way he went through very
    methodically, the opinions that he would write and make sure
    that he wasn't skipping any steps, was something that I thought
    was extremely valuable.
        Because I think the most often when you see judges go off
    track, it's because they've skipped a step. And it's very easy
    to when you skip a step in your analysis, it's easy to insert
    your own opinion here. And I think that that was one of the
    things I took from that clerkship, is to never skip steps and
    to always show your work to make sure that you're not going to
    be inserting your own opinion here.
        Judge Stevens. Thank you, Senator. I will say given the
    team that you put together at the Attorney General's Office, it
    was one of the seminal points in my career. Not just because of
    the great team working for you and the great working with the
    great team that we had, but also managing just some of the
    tremendous young lawyers that came up through that office.
    That's, of course, as I'm sure you and Senator Hawley both know
    the office where Justice Clarence Thomas began his career under
    then Attorney General John Danforth. It's an amazing place.
    It's an amazing training ground for great lawyers.
        I'm proud to say that one of my current clerks, Tyler Dodd,
    will be leaving me in the next few months to join the Attorney
    General's Office. And I expect that my other clerk Clayton
    Watts, who's here today, will be joining that office after
    we're finished next year. So, it's just a, a tremendous place
    to learn to practice law and to practice law long-term as well.
        As far as what I've learned, I had the privilege, the great
    privilege of clerking for Judge Pasco M. Bowman II. The first
    thing I can say that he exemplified was collegiality. That was
    a time on the Eighth Circuit where there were a lot of Reagan
    appointees, including Judge Bowman. But you also had senior
    members of that court from as long as long ago as the Lyndon
    Baines Johnson Administration, believe it or not. Senator Myron
    Bright was a giant of that court for many years, had been
    appointed by LBJ, and was one of Judge Bowman's greatest
    friends on the court. And they agreed on virtually nothing
    legally, but they exemplified what someone said earlier about
    being able to disagree without being disagreeable. And that
    left an impression.
        And I've had opportunities over the years to give
    presentations to young lawyers about how to approach trials or
    how to approach appeals. And that's one of the things I always
    mention is that you can't, in the rough and tumble particularly
    of trial, you can't expect to always get along with opposing
    counsel. You have to zealously represent your client. But if
    you can, you should at least try and--before the Eighth Circuit
    and the Courts of Appeals, they expect their bars to be
    collegial, and they respect that, and it's advantageous to your
    client to be that way as well.
        And the other thing was instinctual to him was a love for
    the rule of law and a respect for the rule of law. That was
    apparent to me from the beginning. I've had that experience in
    other capacities in my career as well. I talked about it, my
    investiture ceremony almost 4 years ago now, some of the
    mentors I had during my career, one of those was Judge Raymond
    Gruender, who changed my life when he hired me as an assistant
    U.S. attorney when he was the United States attorney in St.
    Louis. He also had the good judgment to hire my wife as his
    first law clerk, not coincidentally. And Judge Gruender also
    represents that, the rule of law. He as the U.S. attorney, and
    now for a judge for about 22 years, he's exemplified that.
        Another example would be Tom Meyer, who as Judge Schmitt--
    I'm sorry, Senator Schmitt knows, is an institution in St.
    Louis. He was the United States Attorney appointed under
    President Reagan, and joined our team at the Attorney General's
    Office, worked for Attorney General Schmitt with the Cold Case
    Unit. And there's no one I know more that exemplifies the rule
    of law than Tom Meyer, even when it was--particularly when it
    was not politically advantageous for him as U.S. Attorney. He
    took some--made some risky decisions to ensure that the law was
    upheld. And those are the things that I've learned.
        Senator Schmitt. Thank you, and thank you-all. And you're
    all going to be great judges, so congratulations. Thanks.
        Judge Stevens. Thank you.
        Senator Hawley. Now, I gave Senator Kennedy an extra couple
    questions in the last round on condition that'd he'd be nice to
    all of these folks. So, with that, Senator Kennedy.
        Senator Kennedy. I'm always nice. How many of you worked
    for Senator Schmitt? All four of you. Is it true that he was
    suspended 23 times in junior high school----
        [Laughter.]
        Senator Kennedy [continuing]. In February alone?
        Senator Schmitt. They're under oath, John, be nice.
        Senator Kennedy. Look, I'm not trying to trick you. I just
    want to--I'm not going to ask you how you want to rule on
    cases, and I'm not going to ask you about your political
    beliefs. I just want to know how you think. Let's start with
    the counselor on the end. Suppose I'm a cop and I'm on duty,
    and it's 3 o'clock in the morning and I see somebody driving
    down the road. Not many other people around, it's on a Saturday
    night. Can I stop you?
        Mr. Bluestone. Just because you see him driving around?
        Senator Kennedy. Yes.
        Mr. Bluestone. There would need to be more of a basis than
    that.
        Senator Kennedy. So, the answer's no?
        Mr. Bluestone. Correct.
        Senator Kennedy. Okay. Let's suppose that I recognize him
    and on three previous occasions he's been caught for charged
    with DWI, but he's not driving erratically. I'm the cop, again.
    Can I stop him, constitutionally?
        Mr. Bluestone. Same answer. No.
        Senator Kennedy. No?
        Mr. Bluestone. You would need more than that to be able to
    conduct an investigation.
        Senator Kennedy. Why don't I have--why doesn't that give me
    reasonable suspicion?
        Mr. Bluestone. I think merely the fact that he was driving
    at 3 a.m. and had been pulled over previously for driving under
    the influence wouldn't be enough. Now, it certainly if he were
    swerving or driving improperly in some other way, if he
    committed a traffic violation or something along those lines
    certainly the officer would be well within his rights.
        Senator Kennedy. Okay. So, we can agree our privacy is
    precious to us, even if we're in a car, right?
        Mr. Bluestone. I would agree that the Fourth Amendment,
    very thankfully, protects us all from unreasonable searches and
    seizures.
        Senator Kennedy. So, how come the cops can set up a
    roadblock to and stop everybody when they don't have either
    reasonable suspicion or probable cause just to check and see if
    they have insurance?
        Mr. Bluestone. So, there are limitations on scenarios like
    that, roadblock cases.
        Senator Kennedy. Can I do it first, Counsel, I mean?
        Mr. Bluestone. Officers can set up roadblocks if they're
    applying it based on a neutral and articulable standard, and if
    that standard relates to something that is specific to
    automobiles. So, they could not stop every car to search you.
        Senator Kennedy. You're right about the law, but why? Why's
    not that they don't have reasonable suspicion, they're stopping
    everybody. They certainly don't have probable cause. It's
    intrusive. I mean, I can be--I can spend 10 minutes in line
    from to check my insurance. What's the basis for that being
    constitutional?
        Mr. Bluestone. I think the way I would frame it is that the
    courts have decided that scenarios like that--in scenarious
    like that officers would not be acting unreasonably, so they
    would not be violating somebody's Fourth Amendment rights.
        Senator Kennedy. Because the Fourth Amendment----
        Mr. Bluestone. Guarantees against----
        Senator Kennedy. Unreasonable searches and seizures.
        Mr. Bluestone. Correct.
        Senator Kennedy. And how do you determine whether
    something's unreasonable or not?
        Mr. Bluestone. Well, I think that would very much depend on
    the situation, the specific facts, and the context.
        Senator Kennedy. Don't you balance the costs and benefits?
        Mr. Bluestone. In a scenario like that, yes.
        Senator Kennedy. Okay, cool. Judge, what's the rule now
    that the Supreme Court follows on reapportionment cases,
    congressional redistricting?
        Judge Stevens. Congressional redistricting? My
    understanding, Senator, is that the Supreme Court has decided
    that that's a political issue. And under the political issue
    doctrine, that essentially the courts really don't have much of
    anything to say about political redistricting.
        Senator Kennedy. If Missouri's legislature gets together
    and it redraws districts, and they're going to say a majority
    of Democrats in the legislature. So, they say we're going to
    redraw these districts to benefit Democrats and we're not going
    to be reluctant to say so. They say in front of God and
    country. Is that okay?
        Judge Stevens. Well, it's pursuant to the Supreme Court
    precedent. It's legal----
        Senator Kennedy. Yes. Okay. All right. I'm not going to get
    to all of you Counselor. This counselor, yes, ma'am. Do you
    think the meaning of the Constitution is immutable?
        Ms. Lanahan. So, I think that the Missouri--sorry, the U.S.
    Supreme Court has said that the----
        Senator Kennedy. I want to know what you think.
        Ms. Lanahan. So, yes, my view in terms of like, what it is
    that--you know, my way of looking at the Constitution is to say
    what does the text say and what did it mean at the time that it
    was passed? And this is something that the U.S. Supreme Court
    also says. If that's not clear, I think there are other things
    you can look to, like history and tradition to decide what
    the----
        Senator Kennedy. You look to the--what it meant at the time
    it was passed?
        Ms. Lanahan. Correct.
        Senator Kennedy. What it meant to whom?
        Ms. Lanahan. To the people who were passing it?
        Senator Kennedy. To the people who wrote it?
        Ms. Lanahan. So, I think there are various different ways
    of looking at this, and I think the U.S. Supreme Court has said
    that you look at the meaning that the words would have to the
    public at the time that the Constitution was ratified.
        Senator Kennedy. That's right. I'm done. Thank you.
    Congratulations.
        Senator Hawley. Senator Padilla.
        Senator Padilla. Thank you, Mr. Chair, and appreciate your
    patience and allowing me to come back to ask questions. This is
    the first of these for the calendar year and very important.
    So, I don't want to miss the opportunity to raise some
    questions, particularly for Mr. Divine. I'll start there.
        Mr. Divine, in 2011, you wrote a piece for your college
    newspaper arguing against marriage equality. While you
    acknowledged that, ``the gay community cannot be blamed,'' for
    the ``weakening'' of marriage, you were worried that marriage
    equality would, ``further this trend of traumatic
    digressions,'' against marriage. Now, it's hard to see how this
    could be interpreted as anything other than you suggesting that
    LGBT people enjoying the same rights as straight people is
    somehow harming your conception of the institution of marriage.
        But like I said, you don't just blame marriage equality.
    You also blame ``easy divorce, cohabitation, increased single
    parenting rates, and recreational sex.'' These are your words.
    So, Mr. Divine, noting for the record that June is Pride Month
    and that we are sitting here in Washington, DC, which is
    hosting World Pride this year, I have to ask, do you believe in
    marriage equality?
        Mr. Divine. Senator, thank you for that question. As you
    mentioned, this was a college writing 2011. At the time I
    expressed the same view that President Obama expressed, that
    Joe Biden expressed, that Hillary Clinton expressed under Canon
    5 of the Judicial Ethics. As I'm sure you are aware, and as
    hundreds of nominees before me have expressed, I cannot tell
    you what my personal views are today or my political views are
    today.
        What I can tell you is that I'm no longer in college. That
    was, you know, almost 15 years ago. I can tell you that as a
    general matter, I've grown up, I've had a lot more experiences.
    A lot of my policy and political and even some of my religious
    views have changed in that time. But I can't tell you
    specifically any specific policy or political issue.
        Senator Padilla. So, then let's jump to today, and can you
    answer this question? Can you tell me the legal status of
    marriage equality according to the Supreme Court?
        Mr. Divine. Yes. Ten years ago, this month, the Obergefell
    decision was decided. I understand also maybe 3 years ago this
    Congress passed some legislation. And obviously, Obergefell is
    a binding decision of the Supreme Court. As a lower court
    judge, I would be bound by that decision, just like every other
    decision of the Supreme Court and also the Eighth Circuit.
        Senator Padilla. So, if you're fortunate enough to be
    confirmed, you would uphold that Supreme Court precedent?
        Mr. Divine. That's correct.
        Senator Padilla. Thank you for that. Now, being selected to
    serve as one of our Nation's Federal judges is one of the
    greatest honors that we can bestow on any person. It's also one
    of the greatest responsibilities. So, Mr. Divine, I'd like to
    ask, how many years of litigation experience do you have?
        Mr. Divine. Did you say how many years of litigation?
        Senator Padilla. Correct.
        Mr. Divine. About a decade.
        Senator Padilla. About a decade? Can you be a little bit
    more precise. I know you know your resume pretty good.
        Mr. Divine. So, it depends. If you consider--you know, I
    was chief counsel in the Senate, I was deputy counsel in the
    Senate. We also did some amicus briefs during that time, which
    would be considered litigation. I obviously wasn't doing
    litigation all the time during that period. But if you include
    that period of time, I think it's about 9 years.
        Senator Padilla. That include clerkship time?
        Mr. Divine. Yes.
        Senator Padilla. Okay. So, without clerkship time, it would
    be less?
        Mr. Divine. That's correct. It would be 7 years.
        Senator Padilla. Right. And I think it's important for this
    Committee to consider that because while President Trump has
    decided to throw out the American Bar Association's nonpartisan
    rating system I know that the American Bar Association does
    have a threshold for litigation experience for any nominee to
    receive a qualified rating. And you seem to fall short of that.
    So, again, something for this Committee to consider, I would
    hope.
        Last, we're about 5 months into President Trump's second
    term, and we've already seen numerous attempts by the President
    and even some of my colleagues in Congress to attack and
    undermine the judicial branch, all for the crime of issuing
    rulings, pausing, or striking down the President's illegal and
    unconstitutional actions.
        I was concerned to hear earlier in the first panel of this
    hearing, Ms. Hermandorfer's willingness to--unwillingness, I
    should say, to tell Senator Kennedy that the executive branch
    must follow court orders.
        So, again, Mr. Divine, I ask you, if you're lucky enough to
    be confirmed, and you author an opinion for the Sixth Circuit
    in which the executive branch or one of its officers is a party
    and you decide against the executive branch or one of its
    officers, would you believe they are bound by that decision?
        Mr. Divine. So, Senator, a point of clarification. I
    haven't been nominated to the Sixth Circuit, so. But taking
    your question with respect to the district courts in Missouri,
    I mentioned to Ranking Member Durbin earlier, that there is a
    well-established doctrine on this. The answer is almost always
    yes, with some exceptions for if there's lack of jurisdiction,
    if there's impossibility, things of that nature.
        Senator Padilla. So, my apology for the confusion, Ms.
    Hermandorfer is the one that was nominated for the Sixth
    Circuit, not you. But just expand for a moment, I know my time
    is up, on what those exceptions would be. I understand there's
    some exceptions, but some people in this day and age, the
    political climate that we're living in seem to be really
    broadening the categories of what qualifies for an exception.
    Very different than what we've seen historically.
        Mr. Divine. Yes, Senator. One of those exceptions, the
    first of the three that I just mentioned to you is if a court
    lacks jurisdiction. The Supreme Court has been very clear that
    an order issued without jurisdiction is void ab initio. It's as
    if it never happened. And so, for there to be a circumstance
    where, you know, a judge or a litigant was accusing somebody of
    violating an order and the district court was later determined
    to lack jurisdiction at the outset, then there would've been no
    order to violate in the first place.
        Senator Padilla. Thank you, Mr. Chairman. I will be----
        Senator Hawley. Thank you, Senator.
        Senator Padilla [continuing]. Submitting additional
    questions for the record.
        Senator Hawley. Absolutely. And on that note, questions for
    the record may be submitted until June the 11 at 5 p.m.
        Senator Hawley. Thank you to the nominees. And with that,
    the hearing is adjourned.
        [Whereupon, at 1:13 p.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]

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                                A P P E N D I X

    The following submissions are available at:

      https://www.govinfo.gov/content/pkg/CHRG-119shrg61981/pdf/CHRG-
        119shrg
        61981-add1.pdf

    Submitted by Ranking Member Durbin:

     People for the American Way (PFAW), letter.......................     2

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