[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
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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
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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.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
A P P E N D I X
The following submissions are available at:
https://www.govinfo.gov/content/pkg/CHRG-119shrg61981/pdf/CHRG-
119shrg
61981-add1.pdf
Submitted by Ranking Member Durbin:
People for the American Way (PFAW), letter....................... 2
[all]