[Senate Hearing 119-260]
[From the U.S. Government Publishing Office]
S. Hrg. 119-260
CONFIRMATION HEARING ON FEDERAL
APPOINTMENTS
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
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SEPTEMBER 17, 2025
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Serial No. J-119-48
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
62-461 WASHINGTON : 2026
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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
Tillis, Hon. Thom................................................ 6
VISITING INTRODUCERS
Johnson, Hon. Ron, U.S. Senator from Wisconsin................... 4
Budd, Hon. Ted, U.S. Senator from North Carolina................. 5
NOMINEES
Bailey, Sara Carter.............................................. 31
Questionnaire................................................ 47
Responses to written questions............................... 64
Additional materials......................................... 102
Bragdon, David A................................................. 28
Questionnaire................................................ 121
Responses to written questions............................... 155
Additional materials......................................... 221
Freeman, Lindsey Ann............................................. 29
Questionnaire................................................ 236
Responses to written questions............................... 264
Orso, Matthew E.................................................. 29
Questionnaire................................................ 316
Responses to written questions............................... 351
Rodriguez, Susan Courtwright..................................... 30
Questionnaire................................................ 401
Responses to written questions............................... 457
Taibleson, Rebecca L............................................. 9
Questionnaire................................................ 505
Responses to written questions............................... 537
Additional materials......................................... 593
APPENDIX
Items submitted for the record................................... 605
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
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WEDNESDAY, SEPTEMBER 17, 2025
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice at 10:17 a.m., in
Room G50, Dirksen Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley [presiding], Cruz, Hawley,
Tillis, Kennedy, Schmitt, Britt, Moody, Durbin, Whitehouse,
Blumenthal, Hirono, and Booker.
Also present: Senators Johnson and Budd.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. Welcome everyone.
Senator Kennedy. Mr. Chairman. May I be recognized?
Chairman Grassley. It's very unsual but I wouldn't want to
tell you no.
Senator Kennedy. Mr. Chairman. The entire United States
Senate would like to congratulate you on your birthday----
Chairman Grassley. Well thank you.
[Applause.]
Senator Kennedy [continuing.] Which is today.
[Applause].
Chairman Grassley. Thank you. Forget about it. Forget about
it.
[Standing Ovation.]
Senator Kennedy. And folks you haven't lived until you see
Senator Grassely's birthday cake with all the candles lit.
[Laughter.]
Senator Kennedy. It looks like a praire fire.
Chairman Grassley. Thank you.
Senator Kennedy. So happy birthday Mr. Chairman.
Chairman Grassley. Thank you Senator Kennedy. Now maybe we
can get down to work. I'd like to welcome everybody to todays'
hearing.
Our first panel features Rebecca Taibleson, nominated to
the U.S. Court of Appeals Seventh Circuit. On panel 2, we'll
hear from four district court nominees, Matthew Orso and Judge
Susan Courtright Rodriguez, the Western District of North
Carolina, and David Bragdon and Lindsey Ann Freeman, Middle
District of North Carolina. The second panel will also include
Sarah Carter, nominated for the Director of Office of National
Drug Control Policy. Senator Johnson will introduce Ms.
Taibleson in a moment, but I'd like to say a few words to lead
us off.
Ms. Taibleson clerked for not one, but two sitting Supreme
Court justices; Justice Scalia, and then-Judge Kavanaugh when
he was on the D.C. Circuit. Ms. Taibleson is no stranger to
this Committee. In 2018, she testified in defense of Justice
Kavanaugh's nomination. Ms. Taibleson's firsthand experience
working with Judge Kavanaugh was an important counterpoint to
the embarrassing partisan spectacle that some people on this
Committee orchestrated. I hope that my Democrat colleagues
treat Ms. Taibleson with the fairness and decorum that they
denied her mentor.
Indeed, Ms. Taibleson is extremely well-qualified to serve
as circut judge. Her 15-year experience has spanned private
practice and public service. She's been a Federal prosecutor
and the appellate chief in the East District of Wisconsin for
nearly a decade. Ms. Taibleson has prosecuted some of the most
violent criminals and serious drug trafficking cartels. She's
also a member of the Attorney General's Review Committee on
capital cases.
During the first Trump Administration, she worked on detail
as an assistant to the Solicitor General. In that capacity, Ms.
Taibleson drafted numerous briefs before the Supreme Court. She
participated in oral arguments before that court, not once, but
twice.
Our district judge nominees in North Carolina are also
highly qualified. Their experiences represent a broad array of
legal experience. Mr. Bragdon and Ms. Freeman are Federal
prosecutors who have helped uphold the rule of law. Mr. Orso is
an accomplished attorney in private practice, and the Judge
Courtright Rodriguez is a well-respected magistrate judge on
the same court in which she has been nominated. We'll hear more
about their background from our colleagues from North Carolina,
and I look forward to hearing from each of them today.
Turning to Ms. Carter, she's been nominated to oversee the
National Drug Control Policy. Addressing the scourge of drug
abuse is an important issue for Members on both sides of this
aisle, and we've taken steps to address it in this Congress. I
co-lead the HALT Fentanyl Act, which was advanced through this
Committee in a bipartisan vote earlier this year and signed
into law by President Trump this summer. I appreciate our
Committee's collaboration to get that bill across the finish
line.
Ms. Carter is well positioned to lead the fight to save
American lives through common sense drug control policy. As an
investigative journalist, Ms. Carter developed a deep
understanding of drug crisis facing our country. She's
absorbed, has observed firsthand the unlawful trafficking of
controlled substances over the Canadian and Mexican borders,
and her efforts highlighted the importance of border security
to the end the flow of drugs and illicit substances into the
country. I look forward to hearing from Ms. Carter today as
well.
Before I turn over to Senator Durbin for his statement, I'd
like to mention that we have a very long hearing today. We have
six nominees, two panels, and multiple introducers. I'll ask
everyone to keep their questions limited to the 5-minutes
allotted to keep the hearing on schedule. Senator Durbin.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Mr. Chairman, happy birthday.
Chairman Grassley. Thank you.
Senator Durbin. At the outset, I want to thank you and the
Members on both sides of the aisle for defending this
Committee's longstanding bipartisan tradition of requiring blue
slips from Senators supporting district court nominees from
their State.
As Chair of this Committee, I honored the practice despite
pressure to do away with blue slips from the Democratic side.
As a result, many Senate Republicans were able to negotiate
with the Biden White House to fill vacancies in their States.
Other Republicans use the blue slips to hold open seats in
their States as Democrats have done, too. I didn't particularly
like that approach, but I respect their decision.
As a result, several of the district court nominees before
us today have been nominated to fill some of those vacancies in
red States. Blue slips remain a critical part of this body's
advice and consent responsibility, even when they frustrate the
party in power.
Let me say a word about the nominees today. Two panels.
First panel, a circuit court nominee, of course, by herself,
and then a second panel, which consists of judicial nominees
and others. President Trump has sent his nominees to us. Today,
we'll hear from Sarah Carter Bailey. She's been nominated to be
director of the Office of National Drug Control Policy, also
known as the ``drug czar''.
I can't think of a single issue. I agree with the Chairman
on this of more serious consequence than drug addiction in the
United States and the heavy price we pay, not just individuals
and families, but as a society. Doing something about drug
drugs certainly is the highest priority that we face. The
Office of National Drug Control Policy is supposed to lead that
effort, particularly because of the liaison with law
enforcement, to make sure that the $300 million in Federal
grants that was available last year will be given for law
enforcement effectively on a local State basis to reduce drug
addiction.
This is an important position that requires a professional
who is an expert in combating, for example, the opioid
epidemic. Sadly, Ms. Carter is not that serious nominee. She
has been a MAGA loyalist and podcaster whom President Trump has
chosen for this critical role in government. Until she joined
ONDCP 3 months ago, she had never worked in government. She has
never served in law enforcement. She has no expertise in public
health nor any drug policy. She's been a loyal MAGA podcaster.
Why is it important to bring this up at this point? Because
of two things from the Trump Administration, which we ought to
take to heart. The first was a statement made by the Trump
White House earlier this year about the HIDTA program, HIDTA,
H-I-D-T-A. A program that provides $300 million to law
enforcement.
Here's what the Trump White House said about it.
``Initially, for every dollar invested in the HIDTA program,
the American people get $68 in benefits, making HIDTA an
effective and efficient use of taxpayers money, and an
important tool in the Nation's effort to stop drug traffickers
and save American lives.'' That was the first statement by the
White House.
The second statement was their budget request. Guess what
they did to the HIDTA grants? They cut them by 34 percent from
$300 million to $196 million. So, I'd have to say to Ms.
Bailey, whose side are you on at this point? Law enforcement
comes to us and begs for more money to fight drug problems in
their communities, and I want to give it to them, but the White
House wants to cut it by 34 percent.
What's your position going to be? We'll find out in the
questioning. Thank you, Mr. Chairman.
Chairman Grassley. At this point, I'd like to enter into
the record 10 letters from law enforcement organizations across
the Nation who are fighting each day to combat drug and human
trafficking, and who enthusiastically support Ms. Carter's
nomination. They stated, ``Ms. Carter's commitment to the truth
and firsthand experiences embedded with our Nation's military
and law enforcement is proof that she has the determination to
get the job done, as well as an understanding for what the men
and women in uniform experience daily. This is precisely the
bold and innovative leadership we need.''
Without objection, those will be entered into the record.
Chairman Grassley. Senator Johnson.
STATEMENT OF HON. RON JOHNSON,
A U.S. SENATOR FROM THE STATE OF WISCONSIN
Senator Johnson. Thank you, Mr. Chairman. Chairman
Grassley, happy birthday. We all wish you many, many more.
Ranking Member Durbin and Members of the Committee. I'm
pleased to introduce Rebecca Taibleson as the President's
nominee to become the next judge on the U.S. Circuit Court of
Appeals for the Seventh Circuit.
She's highly qualified for this judgeship having graduated
magna laude from Yale College and then from Yale Law School in
2010. After graduation, she clerked for then-Judge Brett
Kavanaugh on the U.S. Circuit Court of Repeals for the D.C.
Circuit, and Justice Antonin Scalia on the U.S. Supreme Court.
She then practiced civil litigation at Kirkland & Ellis until
2016.
In 2016, she joined the U.S. Attorney's Office for the
Eastern District of Wisconsin, where she continues to serve as
an assistant U.S. attorney and appellate chief. During the
first Trump Administration. Rebecca also served while on detail
from the U.S. Attorney's Office as an assistant to the
Solicitor General in the solicit in the Solicitor General's
office.
She argued two cases before the Supreme Court on criminal
issues and briefed dozens more. She also defended the
President's First Amendment right to control his social media
accounts, specifically his Twitter account. As an assistant
U.S. attorney and appellate chief, Rebecca briefed and argued
criminal and civil appeals, and prosecuted broad range of
crimes including murder, human and drug trafficking, sexual
child, child sex abuse, bank fraud, and robbery and
embezzlement of public funds.
When organizations were exploiting the COVID-19 pandemic to
release prisoners, Rebecca fought successfully to keep them in
prison. Praise for Rebecca's legal mind and commitment to the
Constitution is numerous and glowing. But just as noteworthy is
Rebecca's qualifications and accomplishments are even more
impressive that her top priority remains devotion to her
family, her husband Benjamin, and her three children, and to
her faith.
I'm proud to have recommended the President nominate
Rebecca Taibleson to the Seventh Circuit, and to be introducing
her to the Committee as the nominee. I strongly encourage
everyone to vote in favor of her confirmation. Thank you.
Chairman Grassley. Thank you, Senator Johnson. Now, Senator
Budd.
STATEMENT OF HON. TED BUDD,
A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Budd. Thank you, Chairman Grassley, happy birthday.
Chairman Grassley. Thank you.
Senator Budd. Ranking Member Durbin, thank you as well, and
thank you to Senator Tillis for his partnership on these
judicial nominations before the Committee today.
It's my honor to introduce David Bragdon and Lindsey
Freeman, who've been nominated by President Trump to serve on
the U.S. District Court for the Middle District of North
Carolina. And Matthew Orso and Susan Rodriguez have been
nominated to serve on the U.S. District Court for the Western
District of North Carolina.
I'm grateful to President Trump for nominating these
exceptionally qualified individuals to serve as U.S. district
judges for the great State of North Carolina. I have full
confidence in each of these nominees, and trust that they will
faithfully apply the words of our Constitution in the letter of
the law without resorting to the wrongful practice of judicial
activism.
I'm equally confident they will make the decisions in an
impartial manner, exercising deep judicial humility and
treating everyone in the courtroom equally with respect.
I'd like to now take a moment to briefly introduce these
nominees to the Committee and present their qualifications to
assume the bench. David Bragdon currently serves as the chief
of the Appellate Division of the U.S. Attorney's Office for the
Eastern District of North Carolina, and previously served as
the assistant U.S. attorney in this office.
Mr. Bragdon also served as the resident legal advisor for
the Philippines and the U.S. Department of Justice, where he
helped to strengthen law enforcement tools. Notably, Mr.
Bragdon was also a law clerk to Justice Clarence Thomas on the
Supreme Court and to circuit judge, Stephen Williams, on the
U.S. Court of Appeals for the District for the Columbia
Circuit. Mr. Bragdon graduated from the University of Virginia
School of Law summa cum laude. Campbell University where he
served as student body president.
Lindsey Freeman currently serves as the assistant U.S.
attorney in the U.S. Attorney's Office for the Middle District
of North Carolina. She's previously served in senior roles at
the Department of Justice, including as chief of staff in the
Office of the Associate Attorney General and the Office of
Legal Policy. Ms. Freeman was also of counsel at the law firm
of O'Melveny & Myers, LLP in Los Angeles and in Washington, DC.
She began her legal career as a law clerk to Judge John M.
Rogers on the U.S. Court of Appeals for the Sixth Circuit. Ms.
Freeman graduated magna cum laude. Order of the Coif from the
University of Pennsylvania Carey Law School magna cum laude
from Harvard University.
Matthew Orso currently serves as partner of the law firm
Troutman Pepper Locke in Charlotte, and was previously a
partner at McGuire Woods in Charlotte.
Mr. Orso began his law career as the clerk for Judge Robert
J. Conrad Jr. of the U.S. District Court of Western North
Carolina. Mr. Orso graduated magna cum laude from St. Louis
University School of Law, where he served as editor in chief of
the Law Review, and from the University of Dayton where he was
captain of the rugby team.
Last, but certainly not least, Susan Rodriguez, serves as
the U.S. magistrate judge in the Western District of North
Carolina. Judge Rodriguez was also previously a law partner at
McGuire Woods in Charlotte. She served in policy roles at the
White House Counsel's office and the U.S. Department of
Homeland Security.
She began her legal career as law clerk to District Judge
Frank Whitney of the U.S. District Court for the Western
District of North Carolina. Judge Rodriguez graduated from
George Mason University, Antonin Scalia Law School, and
graduated magna cum laude from Center College.
Mr. Chairman, I have personally met with each of these
nominees before the Senate Judiciary Committee today. I've
heard directly from them about their passion for the rule of
law and our Constitution. They're highly qualified to serve the
people of North Carolina in our great Nation with distinction
and with honor. After hearing their testimony and responses to
questions today, I'm sure that the Committee will agree that
they are well qualified and prepared for the responsibility of
serving North Carolina.
I hope my colleagues on both sides of the aisle will find
the same level of confidence in these four nominees before the
Federal bench that I have, especially on this Constitution Day,
as we reaffirm our duty to uphold the principles of justice
enshrined as the supreme law of the land. Thank you.
Chairman Grassley. Thank you, Senator Budd. You folks are
excused if you want to go. Senator Tillis.
OPENING STATEMENT OF HON. THOM TILLIS,
A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Tillis. Thank you, Mr. Chairman, and
congratulations, on the 42nd anniversary of your 50th birthday
[laughter]. I also want to thank my colleague Ted Budd for
being here. He is a great partner in the State of North
Carolina. He makes us all proud.
Chair Grassley, also I'd like to take the opportunity to
thank Senator Durbin, former Chair Durbin, who honored the blue
slip policy in the last Congress, which is why two of the
nominees are before us today. So, thank you, Senator Durbin.
It's an institution that's over 100 years old, and it's
every bit as relevant today as it was 100 years ago when a
Senator from Georgia sent a note on a blue slip of paper to a
Chairman of the Committee saying that he disagreed with
somebody in who was going to be solely in his State. And that
began the process of the blue slip that I hope lasts another
100 years.
Now, I want to congratulate the nominees and their
families. And lots of kids here in the audience. Senator
Kennedy is a very kind man and brought stationary to some of
you, but there's more kids than we had stationary, so we'll
make sure we get you some more before you leave today.
But I want to welcome Matt Orzo, Susan Rodriguez, David
Bragdon, and Lindsey Freeman. All four of these nominees are
imminently qualified, and will make the State and our country
proud. I want to thank Senator Budd again today for his great
introductions. I may duplicate, but will add some to what I
think are the best credentials you could possibly imagine for a
District Court judge.
There are currently only 10 active Federal judges in North
Carolina, not counting those on senior statutes. So, filling
these four vacancies is very important for our State. Senator
Budd and I set out to find the best possible judges to fill
these spots, and I could not be more pleased with the nominees
that we have before us today. I'd also like to thank President
Trump and the White House Counsel's office for their work with
us on these nominations.
Turning now to our outstanding nominees. Matthew Orzo is a
graduate of the University of Dayton and St. Louis School of
Law. Following law school, he clerked for Judge Robert Conrad
in the Western District of North Carolina. Mr. Orso is
nominated to fill that seat today. I believe Judge Conrad is in
attendance today, and I'd like to welcome him, and thank him
for his service.
Following his clerkship, Mr. Orso went to private practice
and is currently a partner at Troutman Pepper Locke. He has
earned a reputation as one of the best lawyers in North
Carolina, and will make an excellent addition to the bench. In
addition to Judge Conrad, Mr. Orso is joined by his wife and
five children. That's why I think he had a problem with the
tablets. And I'd like to welcome them all.
Susan Rodriguez is a graduate from Center College and the
Antonin Scalia School of Law at George Mason. Between law
school and college, she served in the Bush administration at
the White House Counsel's Office. Following law school, she
clerked for Judge Frank Whitney, whose seat she is nominated to
fill today. Judge Whitney is also here today as well, and I'd
like to welcome him and recognize him for his distinguished
service.
Judge Rodriguez was in private practice until she was
appointed as a magistrate judge in the Western District of
North Carolina, where she currently serves with distinction. In
addition to Judge Whitney, Judge Rodriguez is joined by her
husband, and children, and parents today. Welcome, to all of
you.
David Bragden is a graduate of Campbell University and the
University of the Virginia School of Law. Following law school,
he clerked on the D.C. Circuit Court of Appeals, and then for
Justice Clarence Thomas on the U.S. Supreme Court. He has been
with the U.S. Attorney's Office since 2007, serving as
appellate chief since 2021.
From 2017 to 2020, Mr. Bragdon served as the Department of
Justice residential legal advisor to the Philippines. He has
also served as an adjunct faculty member at Campbell University
School of Law. Mr. Bragdon is joined today by his wife, two
sons, and his in-laws. I welcome them.
Finally, Lindsey Freeman is a graduate of Harvard
University and the University of Pennsylvania School of Law.
Following law school, she clerked for the Sixth Circuit Court
of Appeals before joining private practice. During the first
Trump Administration, Ms. Freeman served at the Department of
Justice, including as chief of staff and senior counsel.
She currently serves as an assistant U.S. attorney in the
Middle District for North Carolina. Ms. Freeman is joined by
her husband, and I'd like to welcome them. It's an honor to
introduce these four nominees with impeccable credentials, and
I look forward to their testimony and their appointment to the
bench. Thank you, Mr. Chair.
Chairman Grassley. Senator Cruz was going to introduce
Sarah Carter, but he's tied up in another Committee meeting, so
I'd like to read his statement introducing Sarah Carter. So,
I'm reading from Senator--what Senator Cruz would've said.
It is my privilege to introduce my dear friend Sarah Carter
as President Trump's nominee to serve as director of Office of
National Drug Control Policy. The position is the so-called
``drug czar'' of the United States, charged with assessing and
countering an ongoing crisis in which murderous substances
pedaled by murderous cartels have flooded our streets and our
country. It is a responsibility she is eminently qualified to
fulfill.
After graduating from California State Politic University
with a BA in journalism and communications, Sarah began her
distinguished career as a journalist. She currently serves as
Fox News contributor, as well as senior investigative reporter
and president of Dark Wire Incorporated, positions that she has
held since 2017.
Her career spans more than two decades of journalism,
including Circa.com, the Blaze, Washington Examiner, The
Washington Times, and the Los Angeles News Group. Sarah is one
of the most tenacious investigative journalists, tracking and
reporting on issues at the core of the national security and
law enforcement.
She has traveled, monitored, and reported on everything
from Afghanistan to the U.S. Southern Border. She exposed the
deadly impact of fentanyl and opioids, uncovered terrorists and
cartel operations, and shed light on the devastating reality of
human trafficking. She has brought to the Nation's attention
the overlapping crisis of illict drugs cartels and human
trafficking.
Her focus on the fentanyl crisis and border security
revealed secret tunnel systems, narcotics, trafficking routes,
and even the involvement of the Mexican Federal officials in
the drug trade. I have been to the U.S. Mexico border with
Sarah several times. She accompanied me and other Senators on
multiple delegations. Sarah and her team were on the front
lines conveying footage of the humanitarian and drug crisis.
In 2019, Sarah received the HIDTA Award for her nonprofit
documentary, Not in Vain, which examined the fentanyl crisis
cartel activity and national security threats. In 2023 she was
honored by CPAC for her reporting on human trafficking in the
Western Hemisphere. As President Trump said when he nominated
Ms. Carter, ``Sara will lead the charge to protect our Nation
and save our children from the scourge of drugs.'' I strongly
encourage my colleagues to support her nomination. Thank you.
That's the end of Senator Cruz's statement in support of Sarah
Carter.
Now, I'd like to have Ms. Taibleson come to the table, and
I'd like to have you stand before you start out, because I'd
like to issue this oath.
[Witness is sworn in.]
Chairman Grassley. Thank you. Now, as you sit down, you can
give your opening statement. You have the privilege of
introducing anybody you want to introduce that's here or isn't
here in support of your nomination.
STATEMENT OF REBECCA L. TAIBLESON, NOMINEE TO SERVE AS UNITED
STATES CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT
Ms. Taibleson. Thank you, Chairman Grassley, Ranking Member
Durbin, and to the Committee, for considering my nomination.
And thank you to President Trump for the great honor of that
nomination. I'm also grateful to Senator Johnson for his
generous introduction.
I'll introduce some family who are here, my wonderful
husband and three children in from Wisconsin. I just have to
say, go Brewers for my son. Even today, especially today, the
most important job I ever expect to have is being their mom. My
parents, Michael and Cynthia are here from Pickens County,
South Carolina, a place very familiar to Senator Graham.
I lack the time or the eloquence to properly thank them
today, both are lawyers. My father, a law professor, the apple
did not fall far from the tree. We moved here from Canada when
I was 4. We were not fleeing persecution or poverty. My parents
simply wanted to raise their children in the greatest country
that has ever existed. This one, and I am profoundly grateful.
My brother, Josh, a veteran, has come here all the way from
Hawaii, a State he fell in love with when he was stationed
there as a Marine. My 3-month-old nephew and his mom are
watching from Maui. I also have my husband's wonderful family
here, and great friends and colleagues. Thank you for coming.
Today, is Constitution Day, the 238th anniversary of its
signing. That is the longest surviving written Constitution of
any country in the world. And in my opinion, the Federal
judiciary is one of our Constitution's finest creations. I know
that firsthand from the judges who have been my bosses and
mentors, especially Antonin Scalia, Brett Kavanaugh, and Diane
Sykes, and from the work of appearing in the Federal courts day
in and day out, representing this country and fighting crime in
the Eastern District of Wisconsin.
I know the Seventh Circuit particularly well. It's a
learned and collegial court, and if I have the honor of being
confirmed, I will spend the rest of my life living up to those
values, to the examples set by my judicial mentors, and to the
faith put in me by the President and this body. Thank you,
Senators.
Chairman Grassley. Are you ready for questions now?
Ms. Taibleson. Yes sir.
Chairman Grassley. Okay. Thank you very much. And
compliments to your family for working with you for your public
service. You had the rare opportunity clerk for not one, but
two justices of the U.S. Supreme Court, Scalia, and then-Judge
Kavanaugh when he was on the D.C. Circuit. What did those
mentors teach you about the proper role of a judge and how did
they inform your judicial philosophy
Ms. Taibleson. So much, Senator. From Justice Scalia, I
learned, I think, what we all learned from Justice Scalia,
which is how to interpret the text of our Constitution and
laws. He was a profoundly influential justice, perhaps the most
influential of the century in which he served.
And his influence on me was very pronounced. I wanted to
clerk for him from the first Scalia opinion I read as a 1L in
law school because no one more persuasively made the case for
judicial restraint for textualism and originalism. And clerking
for him was the best possible training in those values.
From Justice Kavanaugh, I also learned so much. I think the
number one thing I learned, I'll describe it as energetic
public service, which is to say we in public service are
supposed to--we work just as hard as someone who is billing a
private client and getting paid by the hour.
We take our obligation to the public profoundly seriously.
And that means employing a very careful process to decide each
case, no matter how long it takes. Reading each brief,
carefully, deeply researching the law, and then writing in a
manner that is so careful because your opinions need to
withstand the tests of time and future testing in litigation.
Chairman Grassley. The judiciary interprets laws to ensure
the preservation of liberty guaranteed under the document. One
of the most sacred is the right to free exercise of religion.
Justice Kavanaugh recently said that the Supreme Court has,
``made some good progress on recognizing the Constitutional
protection of religious equality and religious liberty.''
What are your views on religious liberty and the role of
judges in protecting it?
Ms. Taibleson. Justice Kavanaugh is right, Senator. In
about the last 12 or 13 years, the Supreme Court has issued
opinion after opinion that has been strongly protective of
religious liberty. And I would of course follow those
faithfully as a lower court judge.
I actually had the privilege of working on several of those
matters while I was at the Solicitor General's office. I worked
on and helped draft the brief in a case involving Thomas More
Law Center against Becerra challenging a California law. And
there, the Supreme Court agreed with our religious protective
views. I worked on Espinoza against Montana involving the
Blaine Amendments and funding for religious schools.
I worked on Fulton v. City of Philadelphia involving
Catholic social services work to place foster children. And in
both of those cases as well, the Supreme Court holdings
protected religious liberty, which was consistent with the
arguments that we made.
In addition, Senator, I am a proud and practicing Jew,
raising three Jewish children. And I think as a Jewish American
you would have to be completely historically illiterate to be
anything but profoundly grateful for this country's tradition
of religious liberty. And that tradition protects not just the
religious among us, but also secular values.
I mean, if you think back to the sort of canonical phrasing
in West Virginia against Barnett, the case involving the Pledge
of Allegiance saying something like, you know, if there's any
fixed star in our Constitutional constellation, it's that no
official can tell citizens what is Orthodox in the areas of
religion, politics, or morals.
And so, that's, I think, an example of how the Supreme
Court's protection of our religious freedoms really inures to
the benefit of all Americans.
Chairman Grassley. You appeared before this Committee
several years ago in defense that Judge Kavanaugh's nomination.
His hearing was tainted with unfair political attacks on his
character. But your testimony as a woman who worked closely
with him, provided critical insight into Justice's competency
and temperament. How did Justice Kavanaugh's commitment
throughout the confirmation hearing and his jurisprudence
influenced you?
Ms. Taibleson. The experience of watching and supporting
Justice Kavanaugh's confirmation was a formative one. I
remember thinking to myself many times that his commitment to
public service, energetic public service, must be very strong
to go through all of that.
I was very honored to appear before this Committee in 2018.
I actually had with me the littlest one there. She was a
newborn. And so, she came, and she sat right outside the door
there with a babysitter while I testified. And Senator Kennedy,
I'm sure you don't remember, but at the airport later that day,
our flight was 7 hours delayed. And I was there with a very
fussy baby, and Senator Kennedy ran into me and was extremely
kind. So, I remember that very well.
And I'm very honored to be here before you, again, ideally
in less contentious times and circumstances.
Chairman Grassley. Thank you. Senator Durbin.
Senator Durbin. Ms. Taibleson, you were doing just great
until you mentioned the Brewers.
[Laughter.]
Ms. Taibleson. I'm sorry, hard disagree.
Senator Durbin. Well, I won't hold that against you. Let me
tell you, I'm wrapping up my Senate career with one more year.
It's been my great honor to serve on this Committee, virtually,
the whole time I've been in the Senate.
There have been some glorious great moments and some not so
glorious. I can recall when we had the first Muslim American
nominee for the Circuit Bench in the Third Circuit a few years
ago under President Biden. And the questions that were asked of
that nominee I thought were beneath the of Committee.
He was asked as a Muslim, if his family celebrated 9/11 in
their home. He is from the New York area, and protested that he
thought it was an outrage that anyone would suggest that
because he had lost personal friends in 9/11. I thought that
was a low point in the Committee.
But I'm sorry to say what's happened to you today may be a
new low point. We've received letters from conservative
conservative political organizations criticizing you, your
husband, and your family. How do they criticize you on the
basis of your religion and your religious practice? I've never
seen anything like it.
American Family Association sends us a letter, let me tell
you some of the things they criticize you for. You and your
husband are affiliated with what they consider to be a
politically liberal congregation. I can't pronounce it, but
it's Emanuel Jerusalem in the Milwaukee area.
They go on to criticize. ``It appears that the rabbi whom
the Taibleson chose to perform their wedding currently serves a
pro LGBTQ congregation.'' They then say that you and your
family have donated to the Milwaukee Jewish Federation. I'm
familiar with the Jewish Federation. It's a big deal in
Chicago, as I'm sure it is in Milwaukee. They do remarkable
great work. They then talked about other things such as your
husband and you donating to candidates of both political
parties.
It's is beyond me to believe that an organization with this
membership would raise these issues. They're ignoring the very
basics of our Constitution, as you noted, which says, of
course, in the Bill of Rights, we have freedom of religious
belief or no religious belief. That's up to us, and the
Government is not going to choose a preferred religion.
But there's a third provision which says no religious test
shall ever be required as a qualification to any office or
public trust under the United States. So, whether it's the
First Liberty Institute or the AFA action group, both of which
sent letters opposing your candidacy, conservative groups
making that position, they're ignoring the obvious letter and
law of the Constitution. I'd like to give you an opportunity to
comment or react.
Ms. Taibleson. Senator, I'm very proud of my Jewish faith.
I was raised that way, my parents who are right there, raising
our children Jewish. And, of course, Article VI of the
Constitution says that there's no religious test for public
office. And that's one of our Constitution's many protections
for people of faith.
And regardless of those letters, I'm really honored by--you
know, it was the President's choice to nominate me, and he did
so, and I'm honored by that selection and grateful for it.
Senator Durbin. And let me ask you so it's a matter of
record. Your selection for this position involved the two U.S.
Senators from Wisconsin, did it not?
Ms. Taibleson. Well, Senator, I don't want to mislead you.
I don't think I have Senator Baldwin's support. What it did
involve was its tradition in Wisconsin for any judicial nominee
to proceed through this sort of nominating commission to which
each of our Senators appoints three people. And I did go
through that nominating commission, and they did send my name
forward. But and I'm very privileged to have Senator Johnson's
support. But I don't want to be misleading, to my knowledge, I
do not have Senator Baldwin's support.
Senator Durbin. Could I ask you to comment in the short
time that's remaining. The Kavanaugh nomination was
controversial at many different levels. One of the questions
was what he would do as a member of the Supreme Court on the
case of Roe v. Wade. What was your understanding of his
promise, and what actually occurred?
Ms. Taibleson. I don't recall him making any specific
promise about a future case, like the one Dobbs that did come
up. My memory is that like every nominee, he recited the sort
of judicial canon that he can't make prejudgments or promises
of cases in the future.
I recall that, I think, he described as has every nominee,
Roe v. Wade as a precedent of the Supreme Court, which of
course it was. And then, in the Dobbs decision, the Supreme
Court applied the established stares decisis factors to
determine what to do with that precedent of the Supreme Court.
Senator Durbin. What was your reaction to his vote on the
Dobbs decision
Ms. Taibleson. Senator, as a judicial nominee sitting
before you, I can't give you a thumbs up or a thumbs down on
Supreme Court precedents. Dobbs held that Roe was egregiously
wrong on the day that it was decided, and had caused numerous
problems in the law and in American society. And Dobbs
determined that it was appropriate to overrule it.
Senator Durbin. Thank you.
Chairman Grassley [off mic].
Former DOJ employees, they describe Ms. Taibleson as, ``An
extraordinary lawyer, public servant, and colleague.'' And they
praise, ``her topnotch legal mind, her unwavering commitment to
the rule of law and her deep and abiding love of this country
during her nearly decade long service within the department.''
Without objection, that will be included.
Chairman Grassley. Senator Kennedy's the next. Senator
Kennedy, you're the next.
Senator Kennedy. Thank you, Mr. Chairman. Counselor, as you
know, it's hard to pass a bill in the U.S. Senate. Our Founders
intended that to be the case. And consequently, if a bill does
pass, it's gone through a long, arduous process; a lot of
reports issued a lot of debate, and all of it is written down.
Why has it become common practice, and do you support it,
of ignoring that rich legislative history when you interpret a
statute?
Ms. Taibleson. Well, Senator, I think the first rule of
statutory interpretation is that the text is what's paramount.
And that's because the text is what actually proceeded through
bicameralism and presentment, which are really just the----
Senator Kennedy. Of course, it's paramount, but why can't
the text be supplemented by looking at the history?
Ms. Taibleson. I think the legislative history can
sometimes provide a tool to help interpret the text, and it's
often in parties' briefs, and I would of course consider it
that way. But it's just important to keep in mind its
subordinated role in that interpretation because the intention
of any particular legislator does not have the force of law.
Instead, the text does.
So, the legislative history and the intentions of specific
legislators should never take primacy over the text or refute
the text.
Senator Kennedy. But it doesn't have to, does it, Counsel?
It just gives you context.
Ms. Taibleson. I agree with that.
Senator Kennedy. When you interpret a statute or write a
brief and you think that the language is plain, aren't you
tempted to go look at the history just to make sure that your
interpretation is correct?
Ms. Taibleson. It depends, I suppose, on the particular
statute, and the nature of the history at issue, and the
question.
Senator Kennedy. But don't you want to just go take a peek?
You look at the language and you say, ``Well, this is, this is
as clear as thunder on a summer night, but maybe I'll just take
a peek at the legislative history to make sure that I'm not out
in left field.'' And the Supreme Court condemns that. Does it
not?
Ms. Taibleson. The Supreme Court does not uniformly condemn
that. And there are certainly cases where, you know,
legislative history or statutory history have provided a tool--
--
Senator Kennedy. But sure, they do. Sure, they do. I mean,
originalism--and I'm not saying they're wrong. Please don't
misunderstand me. I'm just trying to understand your
perspective. Originalism and textualism is accepted even by the
left of center justices, and I've read opinion after opinion,
lower courts as well, where they say, ``Well legislative
history, we can't rely on it.''
Ms. Taibleson. Legislative history cannot be relied upon to
trump the language of a statute. And so, in the language of a
statute, really, is that clear, Senator? There's not that much,
and it bears directly on the question before the court.
Senator Kennedy. Okay. Well, let me ask you something. Does
the Supreme Court sanction looking to the Federalist Papers in
interpreting the Constitution?
Ms. Taibleson. Yes.
Senator Kennedy. Why isn't that legislative history?
Ms. Taibleson. The process for ratifying the Constitution
is of course different than the bicameralism and presentment
process that applies to statutory text. The Constitution was of
course publicly ratified----
Senator Kennedy. No, it's not. No, it's not.
Ms. Taibleson. Well.
Senator Kennedy. You look at the plain language, don't you?
Ms. Taibleson. Yes, yes. But in looking at the plain
language, the question we ask is what was the original public
meaning of that language? And in the case of the Constitution,
the original public meaning is elucidated by the debates
surrounding its ratification. And those debates are really
captured in the Federalist Papers, the Anti-Federalists Papers,
ratification debates, the notes from the Constitutional
Convention, documents like that.
So, those documents can bear directly on the Constitutional
text in a way that is more legitimate necessarily than the
statement of an individual legislature would be vis-a-vis
statute.
Senator Kennedy. Well, then when we interpret the United
States Constitution--and I agree with you that's the case, I'm
just asking you whether you think it ought to be the case--then
when we interpret the United States Constitution, why do we let
lawyers do it? Why don't we just hire history professors?
Ms. Taibleson. The history that judges are looking to in
interpreting the Constitution and other statutes, is primarily
legal history. It's not something like you know a biography of
George Washington. It's instead things like statutes or debates
about statutes, the Federalist Papers. And certainly, I think
law schools could do a better job and should do a better job,
teaching students how to read that legal history. But it is
fundamentally legal history.
And then the task the judges have in reading that legal
history is to draw analogies between that legal history and our
modern times. And that analogical reasoning is, I think, a
fundamentally lawyerly task the judges are particularly skilled
at.
Senator Kennedy. Thank you, Mr. Chairman.
Chairman Grassley [off mic]. Senator Moody.
Senator Moody. Thank you. Feel like I'm [off mic] over my
colleague here, but I'll gladly do it. There.
Chairman Grassley [off mic].
Senator Moody. Thank you. You run a tight ship, and we
appreciate you, Mr. Chairman. Thank you so much----
Senator Kennedy. It's his birthday.
Senator Moody. It's your birthday, and it's the
Constitution's birthday.
Senator Kennedy. He was there
[Laughter.]
Senator Cruz. You should just ask him about the Federalist
Papers and the debate.
[Laughter.]
Senator Moody. Absolutely.
Senator Kennedy. Just ask Grassley.
Senator Moody. Thank you for being here, and
congratulations on your nomination. Thank you to your family.
These hearings, we know, can be difficult, sometimes the most
difficult because of my colleague Kennedy here than anybody
else. But certainly, I know that you appreciate their support
and we recognize them for being here today.
I was particularly touched by your comments about
Constitution Day, and that the Federal judiciary is one of our
country's greatest creations. Indeed, the structure of our
Government and the rights of its citizens that are set forth in
the Constitution.
I believe right now, at this moment in time, every American
should be reminded of the beauty of this country. And it's the
documents that set forth how we will govern ourselves as a free
people, and the true purpose of government to protect its
people and their rights.
And I always love to hear from nominees their value in
that, and especially right now we have this convergence of
disorder and crime around some of our States and cities in
which politicians are undermining the rule of law based on
encouraging people in office to just obliterate the separation
of powers. Meaning, someone in the executive branch that is
asked for the responsibility to enforce the law, saying,
``Well, I don't agree with those laws and therefore I will not
do that.'' Or even judges in some respect.
And I say this with great sadness because I believe an
independent judiciary is a cornerstone of securing the rights
of a people and ensuring that grievances and conflicts have a
place that people can take them, an independent arbiter. But I
watch as district court judges around this country, not only
rule based on what they believe the law should be, but go on to
write lengthy written opinions that personally attack a
governor or someone in office.
And I don't say that that makes me angry or sad just
because it may be a Republican, but because of what it does to
the integrity of the institution, of the Federal judiciary, the
undermining of the public's perception of its trustworthiness
and independence. And I believe when you shake that too much
you shake the foundation of this Nation and so on Constitution
Day, I think it's important that we come back together and get
back to basics on the true role of a judge.
And you know you're going to be asked to write written
opinions, sometimes you may author them. I was hoping you could
give us your opinion on how a judge might author opinions that
would restore or reinforce the public's trust in the judiciary
and its true role. And it's a judges understanding of it's
limited scope and the enormous trust of responsibility that we
give judges.
Ms. Taibleson. Thank you, Senator. The Federal judiciary
plays, as you suggested, a vital role in preserving our
separation of powers and done right. The Constitution assigns a
very specific job to the Federal judiciary, which is to
interpret and apply the law and not to make or change the law.
And judges who carry out that obligation in good faith, I
think, increase the public's faith in the institutions of our
Government.
Now, a few more specific interpretive principles flow from
that general rule. Things like textualism and originalism help
judges ensure that they're applying the law as written and not
importing their own moral or policy preferences into cases. The
elected branches are the ones who are able to exercise, and
should exercise their moral and policy preferences in
representing the people, but judges are not elected to the
contrary.
Senator Moody. What about these swipes that they like to
take at elected officials in really superfluous language that
is not needed in a legal opinion.
Ms. Taibleson. I'm very lucky to be nominated to an
extremely collegial court whose opinions are very disciplined,
and I cannot think of such a swipe in a recent Seventh Circuit
opinion. I would commit to following that tradition of
collegiality and civility. There's really no need or place in
for a judge to be taking personal swipes at anybody, whether
it's from the bench or in your written work product.
Chairman Grassley [off mic]. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman.
Congratulations on your nomination. Thank you for being here.
I want to go back to the question that Senator Durbin asked
you about your support for Justice Kavanaugh. You were not only
supportive, you were energetically and vehemently so appearing
before this Committee as a witness and on cable television. I'm
just curious if you knew then what he did in reversing Roe v.
Wade, would you have supported him?
Ms. Taibleson. Yes, Senator. What I said then, and what I
still think is true now, is that then-Judge Kavanaugh had
amassed a considerable record of experience on the D.C. Circuit
that demonstrated his qualifications to serve on the Supreme
Court. And I think his service on the Supreme Court has borne
that out.
Senator Blumenthal. But he demonstrated in Dobbs a total
disregard for precedent and the principle of stares decisis.
Ms. Taibleson. In Dobbs, the Supreme Court applied the
established stares decisis factors to evaluate the ongoing
precedential relevance of Roe. Those factors include the nature
of the error in the precedent, how bad the error was or the
quality of the reasoning, the reliance interests, the effect
that the prior precedent has had on other areas of law, and its
workability.
Senator Blumenthal. So, you think Dobbs was correctly
decided?
Ms. Taibleson. Senator, as a judicial nominee, the cannons
of ethics preclude me from giving a thumbs up or thumbs down to
Supreme Court precedent because it suggests that I would apply
that precedent according to my own thumbs up or thumbs down.
And I wouldn't. I would apply every precedent of the Supreme
Court faithfully.
Senator Blumenthal. Let me ask you as a matter of
precedent. Do you think Brown v. Board of Education was
correctly decided?
Ms. Taibleson. Yes, I do. As many judicial nominees, wiser
than I, have gone before me to explain, Brown is a monumental
and foundational decision of this country. And its core holding
that's separate but equal is a violation of the Equal
Protection Clause is correct.
Senator Blumenthal. And how about Loving v. Virginia?
Ms. Taibleson. The same exception has been recognized for
Loving. And so, yes, I agree that Loving v. Virginia is
correct.
Senator Blumenthal. And Obergefell v. Hodges.
Ms. Taibleson. In Obergefell, the Supreme Court held that
the 14th Amendment requires States to recognize same sex
marriages on the same terms as they recognize opposite sex
marriages. And I would faithfully apply that precedent as a
lower court judge.
Senator Blumenthal. Well, let me make sure I understand.
Are you answering the question, yes or no?
Ms. Taibleson. I'm answering the question, that I would
faithfully apply Obergefell as a lower court judge. And you
know along with my fellow former nominees, I can't give
Obergefell a thumbs up or a thumbs down.
Senator Blumenthal. You said Loving was correctly decided,
Brown was correctly decided. Obergefell, you won't opine?
Ms. Taibleson. That's correct, Senator. Like previous
judicial nominees who have sat before you, I'm bound by the
canons of judicial ethics and I'm simply following the
recognized examples of acknowledging the sort of monumental----
Senator Blumenthal. The principle of Obergefell is less
valid to you than the principles in those other cases?
Ms. Taibleson. That's not what I'm saying, Senator. I'm
saying that Brown and Loving are monumental and solid decisions
in sort of this Nation's history. The prior nominees have----
Senator Blumenthal. Well, I think there are a lot of folks
who would feel that Obergefell is a monumental decision, too.
Ms. Taibleson. Like basically every prior nominee before
me, Senator, I'm not able to give a thumbs up or thumbs down
there.
Senator Blumenthal. Well, I think we expect more of an
appellate court judge in your position than just to say like
every other nominee before me, I'm going to evade an answer to
that question.
Ms. Taibleson. I will faithfully follow Obergefell and
every Supreme Court precedent.
Senator Blumenthal. And Griswold v. Connecticut, correctly
decided?
Ms. Taibleson. I will faithfully follow Griswold, along
with Obergefell, and every binding Supreme Court precedent.
Senator Blumenthal. Well, I'm disappointed in your answers,
and my time has expired.
Chairman Grassley [off mic]. Senator Britt.
Senator Britt. Thank you, Mr. Chair, and happy birthday.
Thank you for being here. I appreciate your willingness to
answer the call to service. You have an incredibly impressive
career. To your children that are sitting behind you guys, your
mom is a boss. Pretty incredible.
And so, thank you so much for your willingness to do this
at a time where I think our Nation is grappling with what it
means to be in the public eye and stepping up to serve. In
addition to that thank you for, for your willingness to do that
at the highest level.
Looking at your background, obviously clerking for then-
Judge Kavanaugh and Justice Scalia, immensely impressive. In
addition to your courtroom experience, I'd like to know,
through that courtroom experience that you've had, is there a
particular case that you've worked on that you believe is the
most formative in your career? And how is that going to help
kind of inform your work on the bench?
Ms. Taibleson. I think the most formative case for me in
terms of, especially, my Seventh Circuit practice was an in
bank case called United States against Paige. And Paige
concerned the standards for convicting people of conspiracies
to traffic drugs. So, these are the more serious drug
traffickers who we prosecute in the U.S. attorney's office.
And in Paige, what we urged the Seventh Circuit to do was
actually to overturn decades of its own case law that had sort
of bit-by-bit, case-by-case, gone awry and deviated from the
Supreme Court's guidance about the meaning of conspiracy.
And we achieved that result successfully by doing
essentially very deep research into the Seventh Circuit's case
law, and then presenting our arguments forcefully, but
respectfully, when you're asking court to overturn many of its
cases.
And we succeeded, you know, I think beyond my wildest
expectations, garnering in the vast majority of the court to, I
think, you know adjust its case law in the manner that we asked
it to do so.
Senator Britt. When you're looking at the then-Judge
Kavanaugh or Justice Scalia and that experience that you had,
is there any particular case or moment that where you were in
discussion dialog with them? Anything that you feel like will
be formative to how you conduct yourself when you're on the
bench?
Ms. Taibleson. As a law clerk?
Senator Britt. Yes.
Ms. Taibleson. As a law clerk, I think the most formative
case that I helped with was the Affordable Care Act, Obamacare
case. Obviously, the rules of confidentiality and clerkships
preclude me from saying too much about that work, but it was a
huge case and I was privileged to get to work for Justice
Scalia on that.
Senator Britt. Excellent. Look, I know that you're a member
of the Attorney General's Review Committee on Capital Cases,
and you've litigated cases involving issues related to the
death penalty. I know that the death penalty is far more common
at the State level than the Federal level.
But as President Trump has now issued the executive order
allowing the use of the death penalty when in criminal cases in
Federal, when authorized and appropriate under the law, can you
explain how the use of capital punishment differs from Federal
court as opposed to the State court system, and discuss your
role on the Attorney General's Review Committee and what all
that entails?
Ms. Taibleson. Yes. So, each State, of course, has the
authority to decide for its own self, the penalties that are
attached to its most serious crimes. So, some of our States
have the death penalty and some do not. And you know in
practice, as a result, there are far more executions in some
States than in others.
The Federal Government, by contrast, of course, has a
uniform rule across the United States, and there are a
reasonably small number of Federal crimes that are eligible for
the death penalty upon conviction. Within the Department of
Justice the decision of whether to seek the death penalty in a
particular case is an extraordinarily weighty one that goes all
the way up to leadership.
And in its path up to leadership, there's something called
the Review Committee for Capital Cases, which is a set of DOJ
attorneys who review the cases that are eligible for the death
penalty and make a recommendation that goes to department
leadership about whether to seek or not.
And so, it's a careful process that's really case-specific
and that you know always keeps in mind the extreme weightiness
of that work. I have, as you mentioned, led the appellate
litigation team for two Federal executions, and that is among
the weightiest and most serious work I have ever done. And so,
I take that extremely seriously.
Senator Britt. Absolutely. Well, I just want to say thank
you for your willingness. Are these your parents here as well?
Ms. Taibleson. Yes.
Senator Britt. You've got to be so proud. I mean, her
command of the issues, her knowledge, and the way she conducts
herself with class, integrity, is amazing. You know, when you
see somebody go toe to toe with our colleagues up here, it's
amazing. And I also wanted to say thank you for your commitment
to Senator Moody of conducting yourself with collegiality and
civility, and the way that you approach things on the bench.
Ms. Taibleson. Thank you.
Chairman Grassley [off mic]. Senator Whitehouse
Senator Whitehouse. Thanks very much, Chairman. Ms.
Taibleson, welcome. Tell me where the boundary is between First
Amendment protected speech and unlawful prosecutable
misconduct?
Ms. Taibleson. There are a few categories of you know
speech that are exempted from First Amendment protection and
they are criminal. So, examples are threats or fraudulent
speech. Things like libel and defamation can be subject to
civil litigation. Fighting words, incitement. Those are the
sort of standard categories of speech that are exempted from
First Amendment protection, and instead, subject to civil or
criminal liability.
Senator Whitehouse. And that is pretty established set of
boundaries. Right?
Ms. Taibleson. Yes, Senator. I should have been clear. I
was answering with respect to Supreme Court precedent not--you
know it's not written in the text of the Constitution itself.
Senator Whitehouse. But those boundaries have been there
for a long time and are quite clear to ordinary normal judges.
Correct?
Ms. Taibleson. The categories are reasonably well
established. There are sometimes questions about whether
something fits into a particular category, whether it's conduct
or speech. So, not every case is easy, but I think the
categories I listed are pretty well established in Supreme
Court precedent.
Senator Whitehouse. And does that boundary shift in any
respect depending on which side of a public argument you are
on?
Ms. Taibleson. Under Supreme Court precedent, viewpoint
discrimination under the First Amendment is strictly--is
basically almost never. And so, to the extent you're talking
about viewpoint-based discrimination, which say sort of
treating different speech favorably or less favorably under the
law based on its viewpoint, that is subject--is the strictest
scrutiny under the Supreme Court's cases.
Senator Whitehouse. The reason I ask is that I think we're
seeing an administration that wants to attack and perhaps even
try to criminalize, or at least burden with investigation and
prosecution, protected speech that it just happens to disagree
with because the protected speech is to disagree with and
challenge the administration. And I think it's really important
in that contest that courts hue to that well established line.
Do you agree that courts really need to stick to their guns
on this question of the line between First Amendment protected
speech and unlawful conduct?
Ms. Taibleson. Every case has to be taken case-by-case with
respect to the very specific speech that's in front of you, and
the facts, and the law. And of course, Senator, the ultimate
obligation of every Federal judge is to follow the law.
Senator Whitehouse. And there's no rule that gives the
President a special privilege to move that boundary just
because he's the, the senior executive official?
Ms. Taibleson. The President has the authority to set our
enforcement priorities you know, as every President has done,
including in criminal prosecutions. And then, within the scope
of each criminal prosecution, the you know law will be applied
to the facts of that particular case. And in that process, yes,
it's the law that governs.
Senator Whitehouse. And the boundary remains the boundary?
Ms. Taibleson. Yes, Senator.
Senator Whitehouse. Yes. I wanted to just flag one
additional thing. I mentioned this fairly often in these
hearings because court credibility often comes up as an issue,
I think, in which we are all concerned.
And I just want to take this opportunity to point out with
respect to court credibility, that if you look at the record of
what is going on at the Supreme Court, and particularly, you
look at amicus practice in front of the Supreme Court, what I
see regularly is a flotilla of anonymously funded, dark money-
funded right wing groups that file packets of amicus briefs,
10, 12 at a time in a really big case, as many as 50.
And the Court does not oblige them yet to disclose whether
or not those amicus briefs are coordinated, scripted, commonly
funded, multiple ways for the same actual voice to penetrate
the Supreme Court case with seemingly independent, but actually
like different piano keys on the same piano. And I think that's
a failure of the court.
And I also think that it becomes telling at some point when
whoever's behind those briefs always wins. They don't always
show up. They only show up when it matters to the interests of
who are behind those front groups. But my experience is--and
we're trying to put some hard numbers to this--my experience is
that when those right-wing dark money groups show up, they
always win. And I think that does not help the credibility of
the court.
And I thank the Chairman for allowing me to go 8 seconds
over.
Chairman Grassley [off mic]. Senator Hawley.
Senator Hawley. Thank you, Mr. Chairman. Ms. Taibleson,
welcome. It's great to have you here. Congratulations on your
nomination. Let me just pick up on a question that Senator
Blumenthal was asking a moment ago about abortion and life
issues. What standards should courts apply when reviewing State
abortion laws?
Ms. Taibleson. What the court held in Dobbs was that the
Constitution does not provide a right to abortion. And as a
result, Dobbs returned the issue of abortion to the people and
the representatives, State-by-State, and said essentially, this
is not a question for Federal judges because it doesn't say it
in the Constitution. It's a question for the people and the
democratic process. And that is the effect of Dobbs. And as a
result, you know the State democratic process is now the
process that has control over that issue.
Senator Hawley. What about Federal legislation affecting
abortion?
Ms. Taibleson. Federal legislation affecting abortion would
be subject to the same you know scrutiny as other Federal other
Federal legislation. It has to fall within Congress' enumerated
powers first and foremost.
Senator Hawley. What's the precedent or lines of precedent
that would govern any review of Federal legislation related to
abortion?
Ms. Taibleson. Well, I mean, a few lines of precedent might
potentially be relevant. You know, whether it's legitimate
commerce clause or spending clause, legislation is probably the
first question that comes to mind, depending on how the law is
structured and if not, whether there is some other affirmative
hook in the Constitution that provides Congress with the power
to pass that law.
Senator Hawley. So, you recognize Dobbs then as the
controlling precedent when it comes to life questions? Is that
what I'm hearing you to say?
Ms. Taibleson. From the Supreme Court, yes, sir.
Senator Hawley. Well, and the Seventh Circuit or anywhere
else for that matter. Correct?
Ms. Taibleson. Absolutely.
Senator Hawley. I mean, if there's any contrary Seventh
Circuit precedent, Dobbs would supersede that.
Ms. Taibleson. Absolutely. I think--yes.
Senator Hawley. And you--I'm sorry, go ahead.
Ms. Taibleson. No, absolutely. And I would faithfully
follow Dobbs, of course.
Senator Hawley. Good. And you regard it as controlling
precedent and as settled law?
Ms. Taibleson. Yes.
Senator Hawley. Let me ask you this. How should courts
weigh the rights of medical providers who object on unconscious
grounds to participating in abortions?
Ms. Taibleson. The Supreme Court's decision in Hobby Lobby
provided--you know, reflected the fact that employers have
important religious rights to resist the Government's
requirements that they provide certain forms of healthcare to
which they object.
Senator Hawley. What about doctors?
Ms. Taibleson. I'm sorry, Senator, what about doctors?
Senator Hawley. Medical providers, I mean doctors who
object to participating in abortion-related procedures? Well,
how should the court weigh those claims?
Ms. Taibleson. I think I should be somewhat circumspect
because there is litigation pending around the country. And so,
the canons of ethics preclude me from prejudging these
questions too much. But I think the basic method of analysis
would follow the Supreme Court's approach in Hobby Lobby, but
extending it to that context.
Senator Hawley. What about pro-life sidewalk counseling
outside of clinics? Is that core First Amendment speech?
Ms. Taibleson. Sidewalks are recognized by the Supreme
Court as core public forum where the rights to free speech are
at their Zen or their strongest.
Senator Hawley. And there's no difference. It doesn't
matter if it's an abortion clinic or something else you're
saying. I mean, it regardless, the fact that the sidewalk is a
traditional public forum should control the analysis and
whatever the facts of the case may be.
Ms. Taibleson. Generally, Senator, under Supreme Court
precedent, content, or viewpoint-based discrimination in the
context of a traditional public forum is viewed with extreme
skepticism.
Senator Hawley. Very good. Let me ask you about free
exercise questions. Should the free exercise clause be given
the same strength and weight of other fundamental rights like
free speech?
Ms. Taibleson. Absolutely. The free exercise clause, I
believe, the very first clause in our Bill of Rights, and for a
reason.
Senator Hawley. So it is. How should courts evaluate claims
of religious liberty when they conflict with generally
applicable laws?
Ms. Taibleson. The Supreme Court has spoken to that
recently in cases like 303 Creative and some other--you know,
Espinoza, Fulton. And what the Supreme Court has established is
that even generally applicable laws don't carry with them an
exception to the First Amendment's free exercise clause. And
so, if the application of what looks like a generally
applicable law, like, let's say, a funding restriction has the
effect of discriminating against people for their religious
practice, then that can violate the First Amendment.
Senator Hawley. Is this the Trinity Lutheran case of any
bearing here, do you think?
Ms. Taibleson. Yes. Thank you, Senator. The Trinity
Lutheran case concerned, if memory serves, funding for those
playground grounds--we've all seen them with kids that are made
of recycled tires.
Senator Hawley. Correct.
Ms. Taibleson. And there was a State program to fund
playground grounds of recycled tires and a church playground
applied for funding. And it was denied on the grounds that we
don't provide funding to church organizations. And so, what the
Supreme Court held in Trinity Lutheran was, no, you can't do
that. If you have a general funding program, you can't
discriminate against some of your recipients simply because of
their religious faith.
Senator Hawley. And how does that interact with the Smith
case?
Ms. Taibleson. The Smith case held that general laws of, I
think, neutral applicability don't necessarily violate the free
exercise clause. And Smith case remains a precedent of the
Supreme Court that I would follow. But in the last 12-ish
years, the Supreme Court has explained that Smith case doesn't
mean a State can effectively exempt a religious entity from a
State benefit, which is what was happening in cases like
Trinity Lutheran.
Senator Hawley. Last question, Mr. Chairman. I think, think
you're Mr. Chairman now, right? Very good. Just one further
question on Smith. So, in the Trinity Lutheran case and the
Hosanna-Tabor case, the Supreme Court said, well, Smith
actually is about physical acts, it's not about other things.
How do you understand that?
I'm not asking you to grade the Court. I'm not asking you
to go beyond what the Court said. I'm just trying to figure out
how you--you're a student of the law. You've worked at that
court. You've litigated at that court. I'm just trying to
figure out how would you, as a judge, you're going to have to
read these intersecting lines of cases.
What does that mean to you? How do you interpret that
distinguishing of Smith? What do you think that means? How does
that cash out?
Ms. Taibleson. That's a tough question, Senator. I think
the Supreme Court is struggling with Smith in many of these
religion cases. I think the other thing that it said in Fulton
v. City of Philadelphia was that Smith didn't apply there
because although there was a general policy was one that the
city was granting exemptions to sort of left and right. And so,
there are certainly exceptions to Smith that the Court has
recognized.
But happily, there are enough of these cases that I think
as a lower court judge, you can generally find one that's
roughly similar to the facts before you, and that's
particularly true in the last 12 or 13 years, where these cases
have been uniformly protective of religious liberty.
So, my essential method would be one of an analogy and to
see which of these Supreme Court cases is most on all fours
with the case before me.
Senator Hawley. Thank you very much. Thank you. I've
enjoyed your answers, and I think, very, very cogent. Thank you
very much. Thank you, Mr. Chairman.
Senator Cruz [presiding.] Ms. Taibleson, let me first of
all say, nice job dancing with both Senator Hawley and Senator
Kennedy. They can be challenging questioners and you acquitted
yourself ably----
Ms. Taibleson. Thank you.
Senator Cruz [continuing]. For both of them.
Ms. Taibleson. Thank you.
Senator Cruz. By the way, Kennedy did show some mercy not
quizzing you on obscure Latin maxim. So, I'm disappointed,
frankly, because that's one of the things I enjoy most about
these hearings.
Senator Kennesy. Res Ipsa.
[Laughter.]
Ms. Taibleson. The thing speaks for itself.
[Laughter.]
Senator Cruz. You began your career clerking for two
Supreme Court justices, Brett Kavanaugh, when he was on the
D.C. Circuit, and then-Justice Scalia. What did you learn about
judging and approaching the law, from both justices?
Ms. Taibleson. From Justice Scalia, I learned to be
fearless in your intellectual commitments. You know, when
you've thought about something deeply and have written about
it, and you've made a sort of intellectual commitment to an
area of law, you follow that commitment wherever it goes. But
at the same time, to maintain deep civility and collegiality
with your colleagues, even those with whom you disagree as
Justice Scalia did.
I also learned from Justice Scalia that it's possible to
balance a full life in the law with a very full life at home.
He just. I mean, he had that huge family and really great
friends, and he really lived life fully. And I hope to emulate
that.
From Justice Kavanaugh, I learned that you can never be too
careful. It's really always worth the time to go back and read
one more case, to reread your opinion one more time, to make
sure that you've picked every single one of your law clerk's
brains, because the work is profoundly important. And we serve
the public by writing opinions that have to last and that have
to work in different factual scenarios.
And from both justices I learned, you know, they are both
still learned in the law, but managed to maintain a persistent
sort of intellectual curiosity about the law. You know, if
there was a new law review article, they would read it. And
they were always sort of interested in intellectual debates
about corners of the law that they hadn't yet explored. And I
think that curiosity and open-mindedness really serves a
Federal judge well, because it keeps you open and also excited
about your work.
Senator Cruz. So, you have a very impressive legal career.
You managed to overcome the enormous impediment of graduating
from Yale. Not once, but twice. I will say though, your
nomination has attracted quite a bit of interest. I have had
people reach out to me on this nomination more than any other
judicial nomination in the second Trump term both from critics
and from multiple conservatives who I respect deeply and who
know you well and have vouched for you energetically.
As Senator Durbin, noted 55 conservative groups signed a
letter opposing your nomination, and they raised concerns that
I think boiled down to a concern that you are secretly a closet
liberal, and that you'd be an activist on the bench. I want to
give you an opportunity to respond to those concerns however
you would like.
Ms. Taibleson. Absolutely. Thank you, Senator. Let me say,
I guess two things. First, I was raised by a very conservative
law professor sitting right there. And you know, it has stuck.
We were actually--you know, I went to a Jewish day school, and
we were--I think it felt like we were the only conservatives at
our Jewish day school in the 1990's.
Especially back then, if you were Jewish and conservative,
you had to really mean it. And we did, and my parents raised us
to be proud of those beliefs and to be proud of those
differences.
I think my service in the U.S. Government has been fully
consistent with those values. I have obviously been a
prosecutor fighting violent crime. I have prosecuted human
traffickers, meth traffickers, international opioid dealers,
corrupt city employees, armed robbers, carjackers. I think that
work is consistent with my values. We also turned our lives
upside down to move to DC with two 3-year-olds and an infant so
I could serve in the Solicitor General's Office in 2019. And in
that job, I did work that I'm very proud of. And that was
consistent with my conservative values.
The second thing, you know I guess, I'll address, Senator,
is I know that a lot of the concerns are about my husband. And
it is true that my husband and I don't agree about everything
in politics or the law, but my husband and I do agree about
what it turns out are more important things in day-to-day life.
We are agree about devotion to our children, our religious
faith, love of this country, devotion to public service, deep
relationships in our local community. And that is the stuff of
day-to-day life.
And I was raised in actually in the best tradition of
Charlie Kirk to relish debate, you know, prove me wrong. And
so, we do have law and policy debates, but it works for us
because we have so much else in common. And although I'm quite
certain my husband is wrong, on many matters of policy and law,
I love him very deeply, and we have a wonderful family life.
Senator Cruz. If you're anything like my wife, you're quite
certain your husband is wrong on every issue that he disagrees
with you on.
[Laughter.]
Ms. Taibleson. Depends if you take the trash out.
Senator Cruz. And you're probably right. That was a very
impressive answer. And I will say one thing that I find
particularly impressive is Justice Kavanaugh's nomination
before this body was incredibly contentious, and I think you
showed a lot of courage standing up and defending your former
boss. And I think that speaks to character. And I don't know if
you care to explain why you chose to come forward and put your
own credibility on the line to defend Justice Kavanaugh.
Ms. Taibleson. Absolutely, Senator. You know what? It
wasn't hard because everything that was being said about
Justice Kavanaugh was fundamentally inconsistent with a man who
I knew very well. I've known him very well for 15 years now. We
worked very closely together, and I know that he's a good man.
And those allegations were so fantastical to me that it was not
hard to raise my hand and tell the truth about the man that I
knew, and I would do that again, 100 times out of 100.
Senator Cruz. Thank you.
Senator Tillis [presiding]. Senator Schmitt.
Senator Schmitt. Thank you, Mr. Chairman. Thank you for
being here. Congratulations on the nomination, and you're here
on Constitution Day.
Ms. Taibleson. Yes.
Senator Schmitt. I mean, quite an honor. I do want to ask
you in that vein the preamble of the Constitution states that,
you know, says, ``We the people.'' The Second Amendment grants
the right to keep and bear arms to the people. The Tenth
Amendment sets aside rights for the people. Section 2, Article
I says, the people choose their Members of the House. Who are
the people?
Ms. Taibleson. Well, Senator, this is obviously a subject
of much litigation right now, particularly under the Second
Amendment. And so, I need to proceed with a bit of caution
given the judicial canons. But you know there are arguments out
there that the meaning of the people was not necessarily
exactly the same amendment by amendment and provision by
provision, and that you know there might be some contextual
analysis that needs to be done to define the precise scope of
each of those constitutional rights.
Senator Schmitt. Yes. It's been interpreted differently for
public education versus maybe the Second Amendment. How do you
wrestle with that as relates to sort of the privilege and
immunities clause that guarantees rights to citizens? How do
you--and what I'm getting at is are illegal aliens part of the
people?
Ms. Taibleson. Well, you know the privileges and immunity
clause of the Fourteenth Amendment, when you read it, it
certainly sounds like it would do quite a lot. But since the
Supreme Court's decision in the Slaughterhouse cases, it has
not had a ton of weight to pull in constitutional litigation.
And instead, the Supreme Court has viewed the due process
clause as the lens through which many substantive rights are
incorporated against the States and apply to the people. You
know in terms of the protections that illegal aliens have under
different provisions of the Constitution. Again, it's an issue
under active consideration in the courts, so the cannons
prevent me from getting into it too much.
The general parameters of the analysis would be to look at
the text of the constitutional provision in question, look at
the history of its application. So, for example, the history of
the application of the Second Amendment might differ from the
history of the application of the Fourth Amendment, and then
understand the constitutional text in light of that history.
Senator Schmitt. Yes. My guess is you might have some of
these cases coming before you as they'll be litigated. In the
time that I have remaining, I want to ask you about a couple of
other things that you've done a very good job of addressing all
the legal questions. What role in your view does common sense
play in in your jurisprudence?
Ms. Taibleson. I'm from Wisconsin, and so I embrace common
sense. For me, I think it's fair to say I am a textualist and
an originalist, and but I do have some common-sense guardrails
in me. By which I mean, when you get to the end of your work,
it's important just to pick your head up and look around, and
make sure that you haven't lost the forest for the trees, or
been staring at the same five words of a statute for so long
that you've, you know have forgotten what else is out there in
the world, and talk it through with your colleagues and your
law clerks in a sort of common-sense way.
Now, I don't think that means any judge's personal common
sense should trump the law that this body has enacted. It
definitely should not. But I do think that it's important for
judges not to totally lose the forest for the trees.
Senator Schmitt. During my time in the job I had before
this as Missouri attorney general, I learned through some
pretty contested litigation, I think, some of the important
character traits that that public officials should have, or
through this kind of forging process that you go through that
matter.
As a Federal judge, you're going to be confronted with a
lot of difficult cases that have a lot of implications and
consequences, and the chattering classes will be talking a lot.
And do you still have a life outside, I hope. Outside of your
role on the bench? And I guess what I'm getting at, and I
actually think this question is perhaps the most important
question least that I can ask especially in the times in which
we're living in of this really hyper politically charged
environment threats of violence; what, aside from your very
commendable support for now, Justice Kavanaugh and his
confirmation hearings, can you give me an example of a time
where you stood up for your beliefs and your convictions, and
risked really professional and personal backlash in making the
right decision, even though you knew there was going to be a
lot of heat in the kitchen?
Ms. Taibleson. Yes, Senator. I mentioned before that I led
the appellate litigation team for two Federal executions during
the first Trump Administration. And one of those executions was
on January 14, 2021. So, it was 6 days before the transition.
And at that point, the issue of continuing lawful Federal
executions became quite controversial in the department, and
large parts of the department bowed out. But I did not.
And I raised my hand to handle that work. And I did the
work of not only the SG's office in that, but also the other
divisions that had declined to participate. I don't think I
left the office for several days. And I did so because a jury
decades earlier had lawfully returned a verdict of death, and
the victims in that horrific case had been waiting for decades
for justice, but it was not easy, personally or professionally.
Senator Schmitt. Okay. Thank you. Thank you for your time.
Senator Tillis. Ms. Taibleson, thank you for being here
today. I did want to compliment you. I think some of us noticed
you did your opening statement, including the introduction of
all your family members in 2 minutes and 44 seconds. For those
about to do introductions, you may want to keep that in mind.
[Laughter.]
Senator Tillis. I'm not going to ask questions. I'm quite
satisfied with your background and the work you've done, and I
remember you walking the halls when we were doing the Kavanaugh
hearings. I also want to tell your son I'm a Braves fan, but
I'm also a Brewers fan because I once coached when I lived in
Northern Virginia, a team that was called the Brewers a bunch
of eight-and 9-year-olds out on the baseball field. So, the
Brewers have a place in my heart, even if they don't for
Ranking Member Durbin.
But thank you for being here today, and you now may step
aside, and we'll have the staff transition for the next panel--
--
Ms. Taibleson. Thank you very much.
Senator Tillis [continuing]. I'd like to administer the
oath. If you all please stand and raise your right hand.
[Witnesses are sworn in.]
Thank you. You may be seated. We will allow introductions
at this point. It's our normal process if you'd like to
introduce any of your family members, I know we got a lot here,
please feel free to do so. Mr. Bragdon, we'll start with you.
STATEMENT OF DAVID A. BRAGDON, NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Mr. Bragdon [off mic].
Senator Tillis. Make sure your mic is on red means go.
Mr. Bragdon Thank you Senator Tillis. Thank you for your
kind words. Thank you, Chairman Grassley, and Ranking Member
Durbin, for holding this hearing. Thank you to President Trump
for the honor of nominating me, and for the Committee Members
for your work. Thank you, again, Senator Tillis and Senator
Budd for your kind remarks, and for your support of my
nomination. I am very grateful to all the friends and family
who have supported me and prayed for me through this process.
In particular, I'd like to thank my wife, Ellen, for her
steadfast faithfulness in 24 years of marriage, courage, and
perseverance. Thank you to my sons Evan and Ben who are here
today. And my son Seth who is studying abroad. I appreciate my
family's willingness to serve God no matter what the
circumstances. I have wonderful in-laws, Frank and Claudia
Whitaker from Oak Ridge, North Carolina, who are here today,
and have always supported me.
My mother and brother, Diana and Dan Bragdon are watching
online, and my father passed away in June, but I have always
appreciated how he and my mom have raised me and my brother,
for his role in developing my character. I'm grateful to
Justice Thomas, for the chance to clerk with him and how
influential that was in my life.
I'm grateful to my friend, Andrew McIndoe, who is here
today also in support of me. And thank you for all the friends
and family who have just supported me, and are too many to be
named. Finally, I thank God for his grace and strength each
day, and I look forward to the Committee's questions.
Senator Tillis. Thank you, Mr. Bragdon. Ms. Freeman.
STATEMENT OF LINDSEY ANN FREEMAN, NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Ms. Freeman. Thank you, Senator. Thank you, Chairman
Grassley, Ranking Member Durbin, and distinguished Members of
the Committee. It is an honor to appear before you. I would
first like to thank President Trump for this nomination. I'm
incredibly grateful and humbled by this opportunity. I'd also
like to thank you, Senator Tillis, and Senator Budd, for your
warm words and your support throughout this process.
I first would like to thank God for as many blessings, most
importantly, the people he has given me in my life. I have to,
of course, recognize my husband, Jordan, who drove up from
Greensboro last night after putting our two little ones to bed
so that he could be here by my side. He is the most amazing
man, and he is an incredible role model to our two sons, who at
3 and 2, are not here today. But in case they watch this later.
I want to say mommy loves you very much.
I would also like to thank my parents who have always shown
me incredible support, and my sister, who is also my best
friend. I'm fortunate to have several friends here today, and
that means so much to me. And throughout my career, I've been
fortunate to have many friends, mentors, and colleagues. Too
many to name to any degree. But I will simply say that I'm
humbled by their kindness, support, grace, and guidance that
they have shown me throughout my career, and I simply know that
I would not be here without them.
I would like to say a word about the judge that I clerked
for, Judge John Rogers. His humble and faithful application of
the law, and the respect and kindness he showed everyone in the
courtroom inside and out continues to inspire me to this day.
Again, thank you to the Committee, and I look forward to your
questions.
Senator Tillis. Thank you, Ms. Freeman. Mr. Orso.
STATEMENT OF MATTHEW E. ORSO, NOMINEE TO SERVE AS UNITED STATES
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Mr. Orso. Thank you. Senator Tillis, Ranking Member Durbin,
Members of the Committee, thank you for having me here today
and for your dedication to fulfilling this important
constitutional role of advice and consent. I'm grateful to be
here and consider it a privilege.
First, I thank God without whom none with this would be
possible. To President Trump, thank you for your support in
nominating me. To Senator Tillis and Senator Budd, thank you
for your kind words today. Thank you for your support
throughout this process, and for supporting my nomination.
I have a few very important people here today. First, my
wife, Jenny, of 20 years. She's my best friend. She supported
me and my career endeavors at every step of the way. She's a
model of loving service and holiness to me and to our six
children, and there's no way that I'd be here without her.
Our oldest son couldn't be here. He's in college and should
be in class and studying, but he may be watching. And the
remaining five are all sitting here behind me. My children are
the joy of my life, and they're each an immense blessing to me.
My mother, Ann, is watching online. She's my biggest fan. I
love her dearly. My brother, Joe, and his family, and my
brother, Jim, are also probably watching. I'm dedicating this
all to my father, whom we lost just a couple of years ago. I
think he's probably here watching too, though. My wife's
parents, Brian and Patty Blais, they welcomed me into their
family from the start and have shown me nothing but love and
support all of these years.
And here in the room today also is my good friend and
longtime mentor, Judge Robert Conrad, who currently serves as
the director of the Administrative Office of the U.S. Courts.
He took a chance on me many years ago hiring me as his law
clerk, and he hasn't stopped rooting for me after 16 years.
Judge Ken Bell is similar. He hired me in private practice
and provided me every opportunity to succeed and to grow as a
lawyer. And I look forward to joining Judge Bell on the bench,
if I'm fortunate enough to be confirmed. Also, a good friend
here, I think Jim Whitaker, today, and I value his friendship
and support immensely. Thank you, Senators, and I look forward
to your questions.
Senator Tillis. Thank you, Mr. Orso. Ms. Rodriguez.
STATEMENT OF HON. SUSAN COURTWRIGHT RODRIGUEZ, NOMINEE TO SERVE
AS UNITED STATES DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
NORTH CAROLINA
Judge Rodriguez. Yes. Let me begin by thanking President
Trump for this nomination and opportunity to serve the Western
District of North Carolina. I also want to thank the home State
Senators; Senator Tillis, Senator Budd, and to your staff for
all of your support during this process.
I also want to thank Chairman Grassley, of course, I didn't
get to wish him happy birthday in person, but I do wish him
happy birthday. Ranking Member Durbin, thank you for scheduling
this hearing, and thank you to the other Members of this
Committee in the Senate for considering my nomination.
I want to introduce just a few people that are here with me
today. My husband, Bert. He is a United States Naval Academy
graduate, a talented runner, and of course, he honorably served
our Country. Next year will be 20 years of marriage, and we
together have four incredible children. Since it is
Constitution Day. I'm very pleased to report to you that at
least some of them through school and discussions can recite
the preamble. And I told their teachers as an excuse for
missing school today that this will be a great lesson in
learning a little bit about our Government.
I'm honored to have my parents, Vicki and Barkley
Courtwright, right here. They're from Kentucky. Some of you
knew or may know that I grew up in rural Kentucky. Thanks to
the encouragement of my parents, I was the first to go to
college in my family, and what a tremendous example they've
been for me. And that's where I learned a very strong work
ethic.
My brother Mark and his wife Carolee are here. They also
made the 11-hour trek to DC by car, and I'm very grateful that
they're here today. My brother David and his wife, I think are
watching. They're enjoying their new grand baby.
I also want to introduce my father-in-law, my mother-in-
law, Bert and Lucy Rodriguez, my niece Avery, and her parents,
Christina and Ryan, as well as our cousins who came from Miami
Liztie and Manuel Del Canal.
I also want to recognize a few of the judges that are here
with us today. Judge Frank Whitney, who Senator Tillis you
mentioned earlier. I clerked for him, and you know what an
incredible person he is. He's a wonderful judge, and I've just
learned a lot from him.
Judge Robert Conrad, who's already been introduced by my
colleague, Mr. Orso. He once gave me a book that changed my
life, and I'm very grateful for him. Judge Ken Bell is not able
to be here today, but he's the one that had the trust and
confidence in me as a young attorney to give me very
significant matters upon which I built my career.
There are many other judges watching from the Western
District, and I know they're cheering us on today, and I'm very
appreciative of all of them. I'll also want to mention U.S.
Magistrate Judge Bob Numbers from the Eastern District of North
Carolina is also here with us. And he's a good friend to not
only me, but others on this panel.
I also want to recognize U.S. Deputy Marshall Tommy Weeks
and his family. And Senator Tillis, I know you're aware of
this, but Deputy Marshal Weeks gave his life in the line of
duty, and that was about 18 months ago. He's part of the court
family, and I definitely want to recognize him and his family.
I also want to recognize my law clerks who are not here
today, but I know they're watching; David Greg, Mary Grove, and
my former clerk Nicole Giffen. They are just incredible people
with grit, and show me perseverance each and every day. I thank
them.
I also want to thank the good Lord for being here and the
talents he's given me. I hope to put them to good use. If
confirmed, I will defend and support the Constitution of the
United States, and work hard to exercise my duties fairly and
impartially.
Now, there are many others that I could go on and on about,
too many to recount today. But I do want to thank them. I know
they're watching. And I look forward to answering the
Committee's questions. Thank you.
Senator Tillis. Thank you, Ms. Rodriguez. Ms. Carter.
STATEMENT OF SARA CARTER BAILEY, NOMINEE TO SERVE AS UNITED
STATES DIRECTOR OF NATIONAL DRUG CONTROL POLICY
Ms. Bailey. Thank you so much, Senator Tillis. First, I
want to say thank you to you, to Ranking Member Durbin, and
distinguished Members of the Committee. Thank you for this
opportunity. I want to begin by remembering my dear friend,
Charlie Kirk, whose life left a lasting mark on many. Charlie
was deeply committed to inspiring younger generations to engage
with the world around them. His tragic loss is a solemn
reminder that we must work together to unite to save American
lives.
I also want to acknowledge my husband, Marty, who is here
with me today. He is a wounded warrior who knows the cost of
fighting our Nation's enemies firsthand. I also want to thank
our six children; Sophia, Analiese, Justin, Erica, I have the
whole group, Alexander, behind me, and our six grandchildren
who I love so much. Benjamin, Matthew, Charlotte, Gracie, Sage,
and Baby Gabe. I love them dearly. They came from all across
the country to be with me here today. Their love and their
sacrifice make it possible for me to answer this call to serve.
I am also deeply grateful to the angel families here today.
Despite enduring the greatest loss imaginable, you continue to
fight. You are the moral conscience of this fight, and your
courage is an inspiration. And to the law enforcement officials
here, including HIDTA Director, Mike McDaniels, and Deputy
Director Goss, and to the men and women in uniform you
represent, you are the tip of the spear in this war.
Finally, I thank President Donald J. Trump. His leadership
has been a fundamental declaration of our national will. By
designating the worst cartels as foreign terrorist
organizations, he has made it clear the era of tolerating this
assault is over. America will no longer permit the infiltration
of fentanyl and other illegal drugs designed to kill our
citizens.
I come before you, not just as a nominee, but as a witness
to the war that has been waged against our country for years.
For two decades, my work on the front lines wasn't just about
telling stories, it was about mapping the enemy. I traveled
deep into cartel territory because you cannot defeat an enemy
you do not understand. I tracked the supply lines from the
opium fields of Afghanistan, where my husband was nearly killed
by terrorists, funded by drug money, to the cocaine labs in
Guatemala, and the cartel battlegrounds in Mexico. I have seen
these predatory criminal empires operate with impunity in our
hemisphere. That impunity ends now.
Let's be perfectly clear about the nature of this fight.
This is not just a public health crisis. It is a chemical war
being waged against the American people. Our greatest resource,
our citizens, are being targeted and killed. They are not
statistics. They are our children, our neighbors, our loved
ones.
This fight is personal to me. My mother was an immigrant
who fled communist Cuba for the promise of a free and safe
America. My father was a proud Marine who fought in two wars to
defend that promise. Their fight for freedom and safety is the
same fight we face today, and I carry their spirit with me in
this mission.
As director of the Office of National Drug Control Policy,
my mission will be one of relentless offense. We will protect
American lives by taking the fight to the enemy. We will hunt
them in their safe havens. We will dismantle their labs, seize
their finances and assets, and sever their supply lines. We
will use every instrument of American power to break the backs
of these organizations.
But a true victory requires us to fight this war on two
equally important fronts; relentlessly attacking the supply of
these poisons, while systematically reducing the demand from
them here at home through robust prevention, treatment, and
recovery support. That means mobilizing every asset, enlisting
educators, faith leaders, community leaders, and law
enforcement, in a national effort to prevent drug use before it
starts.
We will work to create a culture of resilience where
staying drug free is the norm. We must teach our children that
these substances are not recreation, they are poisoned,
deployed by an enemy. We will defend the next generation from
this chemical assault.
This mission is urgent. We are losing over 300 Americans
every single day. To put this into perspective, we have lost
more Americans to elicit fentanyl in the past 5 years than all
U.S. troops killed in combat since World War II. We, as a
Nation, would never tolerate foreign actions that kill our
people on this scale. We are under attack, and we will respond
accordingly.
My life's journey has prepared me to lead this fight. I am
committed to working with this Committee, with law enforcement,
with the families who know this pain firsthand.
Let me end with this. The chemical poison being pushed into
our country does not care if you are Republican or a Democrat.
The terrorists profiting from this death do not care about our
politics. This cannot be a partisan issue. It must be an
American mission, one that requires all of us united to defend
our children and the future of this Nation. Our objective is
not mitigation, it is victory, Senators.
Thank you, and I look forward to your questions.
Senator Tillis. Thank you, Ms. Carter. I had the
opportunity to meet with a number of the nominees in my office
beforehand, and I told them all to go and watch the game tape
of Senator Kennedy. I also went to Senator Kennedy and told him
he gets to open up in my place. I'll be speaking last. So,
Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman. Mr.--I'm sorry, I
can't see that far.
Senator Tillis. Bragdon?
Senator Kennedy. Who wants to volunteer?
[Laughter.]
Senator Kennedy. Let's just start in the middle and we'll
work to the end. Mr. Orso?
Mr. Orso. Orso.
Senator Kennedy. Yes, thank you. I'm sorry. I really
can't--I guess I need to get new glasses. Mr. Orso, let's
suppose, imagine this situation; small printing company and
manufacturer of envelopes, stationary like that, that sort of
thing. Twenty employees, small operation. They take customer
orders, go in the back, print the stuff. They wear uniforms
because the owner wants to promote his company logo. Employee
shows up one day in uniform, but she's wearing a burka. And the
owner says, ``You can't wear a burka here.'' And the employee
says, ``Yes, I can.'' And the owner says, ``You're fired.''
Tell me how you'd analyze that case. What questions you
need to know. Who would win? Who would lose according to
Supreme Court precedent?
Mr. Orso. Sure. I would likely look first to Title VII of
the Civil Rights Act in 1964, since----
Senator Kennedy. That's correct.
Mr. Orso [continuing]. It's an employment case.
Senator Kennedy. And what does Title VII say?
Mr. Orso. It says that a person cannot be discriminated
against in employment on the basis of race, color, national
origin, religion, right, gender. And then, I would apply the
facts of that case pursuant to any----
Senator Kennedy. What facts would you have to know?
Mr. Orso. I'd have to know if the wearing of that burka was
indicative of any potential religious closely, sincerely held
religious belief. And then, if so, would analyze it from there.
Senator Kennedy. What if the employer said my customers
won't like it. Is that a justification?
Mr. Orso. I don't believe that would be sufficient
justification to discriminate against someone based on
religious belief. I think you'd have to take into account
whether the employee's employer is providing any type of
accommodation that that allows for that person to----
Senator Kennedy. What if this small business owner said
it's dangerous. The employee might get the burka caught in the
manufacturing apparatus.
Mr. Orso. I think I would have to look at the case law if
there's anything similar in that. But my instinct is that in
terms of protecting the safety of employees, is a valid concern
of an employer.
Senator Kennedy. Okay. Fair enough. David--I'm really--
can't see. I need to do something.
Mr. Bragdon. It's Mr. Bragdon. David Bragdon.
Senator Kennedy. Thank you. Mr. Bragdon, tell me about
supplemental jurisdiction.
Mr. Bragdon. Supplemental jurisdiction, I am having trouble
remembering that term because it, it does not come up in
criminal practice very much, but I believe it----
Senator Kennedy. It'll come up in Federal district court--
--
Mr. Bragdon. Absolutely.
Senator Kennedy [continuing]. Every other Thursday.
Mr. Bragdon. And I'll certainly carefully research any
issue that were to come before me, if I'm----
Senator Kennedy. It used to be called pendant jurisdiction,
does that help?
Mr. Bragdon. But I think it's jurisdiction that builds on
jurisdiction. I'm thinking it builds on jurisdiction of another
party who's already properly before the court. But I don't
specifically remember, Senator Kennedy.
Senator Kennedy. Okay. Do you know?
Ms. Freeman. Senator, I would say that that is my
understanding as well, and I don't have too much to add. In my
years as an AUSA, I haven't been working on that recently.
Senator Kennedy. Who knows the answer?
Judge Rodriguez. This is Judge Rodriguez, and so I'm a
sitting U.S. magistrate judge right now, so I think that I'll
step in for the panel. There was a recent Supreme Court case on
this. So, supplemental jurisdiction is when the court would
have original jurisdiction over some sort of Federal question,
but then there is a State question, and so that's where the
court can exercise its discretion over supplemental
jurisdiction.
A lot of times where that comes up is if something gets
kicked and there's only State law claims. Does the court
exercise jurisdiction otherwise over those State law claims?
And there was a recent Supreme Court decision on this that
basically said that the court could get divested of its
jurisdiction if a plaintiff dismissed everything, all of the
Federal claims. And so, it goes back to a jurisdiction issue.
And that's what you would be normally looking at.
Senator Kennedy. Okay. Let me go back to Mr. Orso. So, how
do you amend the Constitution?
Mr. Orso. Senator, I think you'd look to Article V of the
Constitution and follow the instructions for two-thirds of the
legislature, or two thirds of the States.
Senator Kennedy. Okay. Fair enough. Let me move to the
gentleman to your right. What's the difference between a
preliminary and a permanent injunction, and how you decide
them, Counselor?
Mr. Bragdon. A preliminary injunction--well, let me start
with a permanent injunction. Would be a final judgment in the
case that occurs after the completion of all the litigation.
Senator Kennedy. What do you have to--let's start with the
preliminary. What do you have to prove to a judge?
Mr. Bragdon. For preliminary injunction, there's several
standards the court looks at. You're looking at irreparable
harm. You're looking at the likelihood of success in the merits
and the ultimate case as it goes through court. You're looking
at balancing the equities of the parties. So, those are some of
the factors the court considers and whether to grant that. And
it's essentially, the idea is can you keep things in place
while that litigation is pending?
Senator Kennedy. What factors do you look at for permanent
injunction?
Mr. Bragdon. Well, the permanent injunction would depend on
the relevant law or action that's being considered.
Senator Kennedy. But what factors do you look at for a
permanent injunction?
Mr. Bragdon. So you, for a permanent injunction----
Senator Kennedy. You look at the same factors, don't you?
Mr. Bragdon. I think that in my mind, a permanent
injunction depends on the underlying statute or relief that
you're taking. And it can vary based on the kind of case.
Senator Kennedy. Well, on a preliminary injunction, you're
asking is the plaintiff or the move likely to succeed on the
merits. And so, and a permanent injunction, you're asking has
the party succeeded on the merits. Right?
Mr. Bragdon. Correct. My only point is what the merits are
is going to vary based on the kind of case.
Senator Kennedy. Fair enough. Counsel, tell me about class
actions. What are they, and what are the elements of you have
to prove?
Ms. Freeman. Senator, I believe you're referring to Rule
23. So, in order to have a class action, you're allowing one
plaintiff or just a few plaintiffs to stand in for a class of a
larger number of individuals to bring that class action. You
have to meet the factors that are set out, the elements that
are set out in Rule 23. So, we're looking at numerosity,
typicality, representation, commonality, I believe. But those
are some of the factors.
Senator Kennedy. I didn't realize I'd gone this far over.
I'm sorry.
Senator Tillis. This concludes the entrance exam.
[Laughter.]
Senator Kennedy. I really apologize. I didn't mean to go
this far.
Senator Tillis. Thank you, Senator Kennedy. I appreciate
you asking the questions. Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman. Ms. Carter, I hope
we can agree that the HIDTA grants are valuable to fighting the
drug crisis in America? Do we? Turn your mic on.
Ms. Bailey. Absolutely, Senator Durbin. HIDTA is a very
important part of fighting.
Senator Durbin. So, last year, the 33 HIDTAs, which are
high intensity drug trafficking areas, the 33 areas identified
by that program seized 4.1 million pounds of fentanyl and other
drugs, and denied drug traffickers $17.7 billion in illicit
profits. Proof positive of what we both agree on. HIDTA grant's
work, right?
Ms. Bailey. Absolutely.
Senator Durbin. So, let me ask you to please explain why
the HIDTA program is subject to a 34 percent cut by the Trump
budget from $300 million to $200 million. Have we won this war
on narcotics and don't need this anymore?
Ms. Bailey. First, let me begin by stating that I
absolutely support the President's budget. Secondly, I do and
absolutely support our high intensity drug trafficking. HIDTA
aide groups. I was actually just recently in Alaska. I made a
trip to the furthermost part of the United States in an effort
to meet with the HIDTA director there and an effort to see the
fight that we are continuing to fight against the drug cartels.
I figured it's already--we've seen the supply pouring across
the southern border. We've come across----
Senator Durbin. I'm going to have to slow you down a little
bit. We have a limited amount of time if we follow the rules of
the Committee, and I would like you to answer my question. How
would you justify a 34 percent cut in HIDTA grants if we
haven't won the war on drugs?
Ms. Bailey. The Big Beautiful Bill also supplements that
funding. We continue to access this administration continues to
assess those grants, and HIDTA is absolutely supported by the
Office of National Drug Control Policy, which it falls under.
Senator Durbin. 34 percent cut is not support.
Ms. Bailey. Right behind me, I have HIDTA Director Michael
McDaniels and Deputy Director Rick Goss.
Senator Durbin. That's good. I'm glad they're here. But
that doesn't help to cut the program by 34 percent. Let me go
into the Mexican drug cartels because you said you have some
personal knowledge of those. Are you aware that these drug
cartels are heavily armed?
Ms. Bailey. Absolutely.
Senator Durbin. Do you know their weapon of choice?
Ms. Bailey. Yes. I mean, they use assault rifles, they use
grenades. They use quite an array of weapons. Sometimes, they
out resource even our own law enforcement.
Senator Durbin. And the Mexican police and military forces
as well, correct?
Ms. Bailey. That is correct.
Senator Durbin. And one of the most common weapons they use
is a 50-caliber rifle?
Ms. Bailey. That is correct.
Senator Durbin. I'm not an expert on firearms by any means,
but I understand that that is a military-style weapon that is
so powerful that it can penetrate a vehicle.
Ms. Bailey. These are lethal weapons. Yes, that is correct.
Senator Durbin. You also know that the Mexican government
has done an analysis of where these crime guns come from for
the drug cartels and find that 70 percent come from the United
States. Are you aware that?
Ms. Bailey. Yes, of course, Senator. We are assessing both
sides of this horrific situation that our country is facing.
Senator Durbin. So, if you're dealing with a drug crisis
that you'd characterize as a chemical war being waged against
the American people, and 70 percent of the weapons are coming
from the United States to these terrorist cartels, do you
believe we have any obligation to try to stop that flow of
weapons?
Ms. Bailey. We're assessing both sides of this issue.
Absolutely. We're working with our partners both in Mexico, and
here in the United States, as well as law enforcement to assess
this and mitigate those threats?
Senator Durbin. What do you suggest we do?
Ms. Bailey. We're continuing to work with both sides----
Senator Durbin. You've got to get beyond assessment. You
got to do something to stop the flow of deadly weapons to the
cartels.
Ms. Bailey. Well Senator, I believe shutting down the
border has effectively stopped the flow, both going south and
coming north.
Senator Durbin. We stopped the flow of weapons from the
United States and Mexico. Is that what you're testifying?
Ms. Bailey. I believe by shutting down the border and
working with our partners in Mexico, who are as responsible for
the crisis that we are facing, we have significantly reduced
the flow going south as well as coming north.
Senator Durbin. I want to see that in writing. Can you
produce it?
Ms. Bailey. I will absolutely work with you on this,
Senator.
Senator Durbin. Well, I think it's very important that you
do that.
Ms. Bailey. Absolutely.
Senator Durbin. The drug crisis is serious. You want to
take on drug crisis for America. You don't have a background in
this other than an interest in the subject. And I would just
say that they trust you with that responsibility when we're
cutting the budget of this agency by 34 percent the HIDTA
grants by 34 percent really gives a lot of us pause. I'm not
sure why you were chosen, you're articulate, but that doesn't
mean you're expert enough to manage this job. So, let's see
what you produce for me.
Ms. Bailey. Absolutely, Senator. Thank you so much.
Senator Durbin. Thank you, Mr. Chairman.
Senator Tillis. Thank you, Senator Durbin. I'd like to
enter into the record three letters from Families Against
Fentanyl, Parent Collective, and Lost Voices of Fentanyl. These
nonprofits represent thousands of families deeply impacted by
the drug crisis in our Nation.
These organizations strongly support Ms. Carter's
nomination and believe that she is the, ``hands-on, data-driven
leader who will work to end the fentanyl poisoning crisis.''
Without objection, I'd like to have these entered into the
record.
Senator Tillis. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. I always ask these
initial questions of all nominees before any of the Committees
on which I sit to ascertain fitness to serve. So, I'll ask the
questions, and we'll start with Ms. Freeman and go right down
the line.
Since you became a legal adult, have you ever made unwanted
requests for sexual favors, or committed any verbal, or
physical harassment, or assault of a sexual nature? Ms.
Freeman, then we'll go down the line.
Ms. Freeman. No, Senator.
Mr. Brandon. No, Senator.
Mr. Orso. No, Senator.
Judge Rodriguez. No, Senator.
Ms. Carter. No, Senator.
Senator Hirono. Have you ever faced discipline or entered
into a settlement related to this kind of conduct?
Ms. Freeman. I have not.
Mr. Brandon. I have not.
Mr. Orso. No, Senator.
Judge Rodriguez. No, Senator.
Ms. Carter. No. Senator.
Senator Hirono. Thank you. One of my concerns with many of
President Trump's nominees is their lack of qualifications and
relevant experience for the positions to which they have been
nominated. And I want to note for the record that Ms. Carter
Bailey, who has been nominated to be director of the Office of
National Drug Control Policy up until 3 months ago had never
worked in this environment or in this space. And so, before 3
months ago, she had never even worked in government. She has no
background in drug policy, no experience in public health. So,
I have concerns as to the lack of relevant qualifications,
experience of this nominee.
I have a question for Mr. Orso. Mr. Orso, what does the
Supreme Court case Griswold v. Connecticut stand for?
Mr. Orso. Senator, the Supreme Court in Griswold held that
there was a constitutional right to contraception I believe.
Senator Hirono. So, Mr. Orso as a district court judge,
you'll follow that precedent and the cases that that relate to
contraception, use of contraception?
Mr. Orso. Yes, Senator Hirono, I would to follow all
Supreme Court precedent, if fortunate enough to be confirmed as
a district court judge.
Senator Hirono. And basically, you would follow Supreme
Court precedent in all cases----
Mr. Orso. Absolutely.
Senator Hirono [continuing]. Until the Supreme Court
decides otherwise? Which by the way, this Supreme Court, as you
well know, has been overturning decades of precedent in many,
many areas, and this is possibly one of them going forward.
So, I did want to also note Judge Courtwright Rodriguez,
that since becoming a magistrate judge, you've presided over at
least two naturalization ceremoneys. Can you share with the
Committee what those experiences meant to you?
Judge Rodriguez. Yes. Those are very near and dear to my
heart. You may have read my comments that I typically make at
the naturalization ceremoneys. I have my father-in-law and my
mother-in-law who both immigrated from Cuba. Castro, came to
power and literally took everything from my mother-in-law's
family. And she came here to the United States, and they're
very grateful. So, because they naturalized, I am lucky enough
to be married to my husband here. So, those are near and dear
to my heart.
Senator Hirono. Thank you. And I want to note for the
record that you commented that the United States has been
referred to as a great melting pot where everyone brings their
culture and history, and we are all the more enriched because
of that. I completely agree with you as a naturalized citizen
myself, and as we have a regime that is very much against
diversity, equity, and inclusion, which is really reflective of
the diversity of our country.
I am very glad to know that you considered the
naturalization ceremoneys where we are welcoming people from
all over the world to be part of our great basically the mix of
culture and the history in our country that en enables our
country to be strong and great. I commend you for that
attitude, because it's one that I share. Thank you, Mr.
Chairman.
Senator Tillis. Thank you, Senator Hirono. Senator Kenny.
Do you have any intention of asking any other questions?
Senator Kennedy. No, sir. I'm happy a happy camper.
[Laughter.]
Senator Tillis. Ms. Carter, I think we have Senator Moody
coming. I have a couple of questions for you.
Ms. Carter. Yes.
Senator Tillis. I've been down to the border multiple
times, and I am thrilled with the results of this
administration in shutting down the border. I think it's a
great disservice to people who immigrate legally. And it also
has made our country less safe. In the time that I've been down
there, I've had numerous briefings with Customs and Border
Patrol, and I don't know if the statistic is right anymore.
You made a comment about effectively shutting down the
border. I agree that we've done a good job with that, but these
cartels do an amazing job of getting around. I've been on the
Rio Grande at midnight or 1 o'clock, and I've heard the
coyotes, the human traffickers, the drug traffickers, literally
across the Rio Grande shouting to us, ``We are coming.''
And they always would set a pick. What they would do is
take about 40 or 50 persons trying to come into the country
illegally, attract the border patrol there so that they could
send their poison or human trafficking to another area where
the Border Patrol is just too involved. They can't get to them.
I think a lot of that play has been pretty much shut down
because the President's done an extraordinary job of enforcing
policies that the Biden administration didn't.
But the concern that I have is you still have what they
call the Sinaloa Cartel. So, they're flying ultra lights over
and dropping off drugs. They're very difficult to detect
because we don't have the situational awareness that we should
at the border. And we also see a lot of the poison. And in my
last briefing about a year ago, according to Border Patrol,
that still the majority of the illegal drugs that come through
this country come through a legal entry point, hidden in
trucks, hidden in bodies.
I mean what are we going to do to really combat that, and
get this Congress to understand that people, technology, and
infrastructure at the legal ports of entry so that we can
increase commerce and legal entry and exit? What's going to be
the priority there?
How do we get that done balance between maximizing the flow
between two nations that have very important economic and other
ties, but do it in a way that's really plusing-up the resources
that Border Patrol needs to get the job done and keep our
country safer.
Ms. Bailey. Well, thank you so much for that question,
Senator Tillis. I think that's a vitally important question
because it's such a complex question. We have nearly 2,000
miles of border with Mexico. You're absolutely correct, our law
enforcement assesses that the majority of the narcotics
continue to pour through our border, and the cartels are very
savvy. For decades, they have been working to figure out ways
to work around us, to find those loopholes, to bring that
poison into our Nation.
Not only are we dealing with the cartels, but we are
dealing with adversaries who are taking advantage of those
loopholes as well. President Trump did a phenomenal job coming
in and shutting down that border. The cartels were operating
with impunity, and we saw that under the last administration,
the flow of human trafficking, the horrors of human
trafficking. I saw it with my own eyes.
I was at the border almost 24/7, monitoring the situation.
I, too, would see, and I can attest to what you saw, sir,
across the Rio Grande. Even late at night, looking through my
nods, which were my night vision camera, you could see the
cartels moving across with 75, sometimes 100 people every hour
on the hour.
Senator Tillis. Yes. I want to be respectful of Senator
Moody's time, but I think one thing I look forward to speaking
with you after confirmation, to really listen to the voices of
Border Patrol who say we do need walls in some places. But what
we need is a law enforcement-driven strategy for securing the
border, not only from human crossings, but all of this poison
that's coming across the border. And that means that we have to
get the mix right between people, technology, and
infrastructure.
I don't want to spend a dime more on a wall if it's not
what's going to make this country safer. And, you know, the
problem with a 30-foot wall is a 40-foot ladder. And if we do
not have situational awareness, operational awareness on the
ground, then all these good works are going to be for naught
when a future administration comes. That, I think, de-
emphasizes one of the most important things that we need to do
for Homeland Security. So, I appreciate you being here today.
I'm going to turn to Senator Moody.
Ms. Bailey. Thank you, Senator.
Senator Moody. Thank you, Senator Tillis. And thank you for
all of our nominees for giving up so much of your time and your
families for being here today. Thank you for supporting them.
Life of public service is not easy, especially these days. And
oftentimes, I find that it is harder on our families than it's
sometimes on us. So, thank you to the families that are here
with you.
You know, as Florida's attorney general, I fought very hard
against the opioid and then synthetic opioid epidemic. It is
something our country has never seen. We are losing more
Americans working and fighting age Americans to the drug
epidemic than any other cause of death. It's frightening when
you put into perspective how it compares to when we thought we
were dealing with this crisis in the 1980's, when Nancy Reagan
first said, ``Just say no.'' We were losing about 3,000
Americans a year. We now lose over 100,000 Americans a year to
drug overdose.
And so, from holding pharmaceutical companies,
distributors, manufacturers accountable in court, or working
with law enforcement to step up interdiction efforts, or making
sure that we were getting that message to our children, or
equipping our first responders with naloxone, I was very
focused on this as attorney general.
And one of the things I found was that the message wasn't
getting to the kids. And we were losing unsuspecting kids that
did have no reason to believe that they were about to ingest a
fatal dose of fentanyl. They were dying. The fastest growing
age category for overdose on fentanyl is under 14.
And so, I have been very vocal commending this
administration for thinking outside the box on how we tackle
our greatest challenges. And that goes from where we're putting
our current resources. Shifting not only monetary resources,
but human resources to different agencies or responsibilities,
and then the people he's appointing.
As it pertains to the Nation's ``drug czar,'' that has
looked very differently for many different administrations. I
believe under Biden, he had a physician. Some people have
former Governors, some people have law enforcement. I think it
is very unique that we have a mom of six.
Ms. Bailey. I've got six beautiful children. I think I left
one of them out. Luke, I am so sorry. I was thinking about that
the whole time.
Senator Moody. Ah, I set you up for that.
Ms. Bailey. I've got Luke, Sophia, Analiese, there's
Parker, her husband, there's Benjamin, my grandson. So, we've
got six children, six grandchildren, all together. And nothing
is more formidable, you are right, Senator, than a mama bear.
Senator Moody. So, we were together recently speaking on
the efforts of this administration to not only interdict, shut
down the border, which they've done with no new laws. They've
shut down the border, interdict this flooding into our country
killing Americans, but also how do we get through to parents in
terms of warning kids and kids that anywhere from 5-to-7 out of
10 pills contain a lethal dose of fentanyl, the counterfeit
pills.
And I was with the nominee and the sheriff in Miami-Dade
County who is also a mom and dealing with these every
struggles, coming up with ideas of how as ``drug czar'' you can
get that word out. I was just hoping, because, you know, and I
want to make sure everybody knows.
To fulfill the responsibilities of this job, it has looked
different depending on the administration and what they're
trying to accomplish. But certainly, I think you bring a very
unique on-the-ground perspective. Not just personally--although
man, you should be given a trophy for six kids and having such
an accomplished career, but professionally.
And what do you think is unique about your background and
your current, and your current work that that sets you apart
from prior nominees, and you bring a fresh perspective and zeal
about the responsibilities of this position?
Ms. Bailey. Well, I think you already mentioned one of
them, Senator Moody, and it's my family. But you're right, I'm
not a doctor. I'm not a general, I'm not a lawyer. What I am
was a more than two-decade investigative journalist who was on
the ground, in the field witnessing firsthand what these
cartels and what these terrorist organizations have not only
done to our Nation and to the rest of the world, but to our
children.
And you mentioned something very important. You talked
about the 1980's when we were losing 3,000. I think the number
I got was at one point, it was 6,300 when we thought it was
really in 1980, when we really thought that was a terrible sign
of where our Nation was heading, you know, for drug overdose.
And now we're looking at over 100,000.
I have angel families sitting behind me who will never,
never see their children again, because poison came across our
border, and their children unknowingly took either a pill--even
I say now, as Mike Gland who is sitting behind me has said. You
know, he lost his son, Preston, but he said, ``One try, you
die.'' Not one pill can kill anymore. It's one try, you die.
You think about this, one of my son-in-law's closest
friends from high school lost his life in Miami at a party, you
know doing drugs, not expecting that to contain fentanyl, and
immediately, immediately lost his life. I don't want to see
that happen ever again. I am committed with all of my heart and
all of my soul to working for every single American, every
single family.
As I said in my own statement, these drugs, these cartels
are adversaries. They don't care if we're Republican or
Democrat. They don't care if we're a member of the Green Party,
or if we're of no party at all. They are making hundreds of
billions of dollars off of the death of Americans, and off of
the deaths of people all over the world.
I have someone here as well, Rosie, who works with the
Kaleido Foundation. And I can't tell you how many times Rosie
and I have been in Mexico together. Human trafficking victims
that I have interviewed, that I have spoken with. These cartels
are taking lives with impunity. They were operating with
impunity, now they know that we mean business.
Their designation by the President as foreign terrorist
organizations; Sinaloa Cartel, Nueva Generacion, El Mencho, the
ghost who tries to hide from all of us, will no longer be
sleeping restfully anymore. All of these cartel leaders, all of
these terrorist organizations, and even our adversaries are on
call right now, and especially the cartel leaders.
Senator Tillis. Senator Booker.
Senator Moody. Thank you.
Senator Booker. Chairman, Thank you very much. I had a
great exchange with the Chairman earlier, and we talked about
the State of North Carolina. I've done years in service with
this man, and he made it very clear to me, lay off my judges,
Booker.
So, let me just say simply this to all those who are
nominated for positions in North Carolina, I'm a Jersey boy
through and through, but I'm the son of a North Carolinian. And
my dad grew up in Hendersonville, up in the mountains. And
North Carolina was his pathway to progress. He went to North
Carolina Central University. I know my dad is now in heaven. He
died 6 days before I was elected to this office. But he was a
North Carolinian through and through.
So, congratulations on your nomination. You're representing
a great State, and I know especially seeing a lot of the faces
of your family behind you, that you take this nomination
seriously. And I wish you Godspeed.
I really thank you, Ms. Carter, for the passion. And I just
would love to explore an area in which there's been tremendous
bipartisan work, not just here in the Congress but all over
America right now. We're seeing such wisdom from red States and
blue States learning from the mistakes in the 1990's with that
led to an explosion of incarceration, but no reduction in drug
use. And it's something that I've leaned on. Everybody from
Right On Crime to the Manhattan Institute have been invaluable
in my journey in helping me shape policy, especially in my days
as a mayor.
I am this strange guy. I used to get joked by with by Mitt
Romney. I'm not Mormon, but I've never drank. I've never
smoked. I am a pretty boring guy as my fiance tells me. But I
do have some frustrations with marijuana policy based on
science, and I'd like to focus there first.
On your podcast in 2023, Ms. Carter, you talked about
cannabis and you said, ``I don't have any problem if it's
legalized and monitored.'' You supported the use of cannabis
for medical purposes, and we had bipartisan hearings here with
military personnel talking about the transformative impact it's
had on their PTSD.
I just believe that we have a moment now where 40 States
have made cannabis legal for medical purposes. Unfortunately,
Federal law is lagging behind State law and behind popular
opinion on all across the political spectrum. In fact, under
Federal law, cannabis is still a Schedule 1 drug, the category
that's really reserved for some of the most dangerous drugs,
some of which I think I came in on a conversation that you were
talking about.
They say that cannabis has no medical value. That's what
Schedule 1 says. In essence, cannabis is considered just as
dangerous as heroin in the Federal system. In 2022, President
Biden directed the Secretary of Health and Human Services to
just review how cannabis is scheduled on their Federal law. And
after its scientific review, Health and Human Services
recommended rescheduling cannabis at Schedule 3.
I think that's a step in the right direction, and that
would finally, at least, recognize that we would not only have
medical benefits, but it would allow scientists to study the
short-and long-term health impacts. It would open up the door
to more scientific study.
And so, I'm wondering if you were confirmed, how would you
advise the American President about the ongoing rescheduling
process?
Ms. Bailey. First, thank you so much, Senator, for your
comments. You're right, I am very passionate. I could see that
you are very passionate as well. This is a bipartisan issue,
and I look forward to working with you as well as all the
Republicans here on the Committee and other Democrats.
So, first, thank you very much, and I extend an invitation
to speak with you at any time of your choosing. If confirmed,
as director, I will comply with all Federal laws and fulfill
all statutory responsibilities of the ONDCP. However, we will
continue to work extensively with research and data. We will
continue to do that and explore all options.
I've already met with Secretary Collins with the Veterans
Administration. All of us are discussing, you know, these
continued research and data that we will be delivering, and
based on that research and data we can continue to assess. I
think that is vitally important.
Senator Booker. So, I know the Federal law prohibits the
Office of National Drug Control Policy from funding any study
or contract relating to legalization, including for medical
use. It's unfortunate, but that makes the study of Schedule 1
drugs, including cannabis, really difficult. And so, I'm hoping
as we work together across the aisle on legislation that would
simply allow the ONDCP to study the impacts that this might be
something that you would support.
Ms. Bailey. Absolutely. We'll continue to study the impacts
of that.
Senator Booker. Thank you. I'm going to give some other
questions for the record, but I just want to--one quick last
question. We're seeing this overdose crisis, and we're seeing
communities I think we're talking about tragically affected by
fentanyl.
I believe we need to make sure that people who use drugs or
are in recovery have access to naloxone, which is proven to
reduce overdose deaths. I'm going to put some questions in the
record on that.
But I am very concerned, and I've seen such bipartisan work
in this area. I have a bipartisan bill on this that the ONDCP
issued its drug control strategy of 2026, the top priority to
reduce the number of fatal overdose. This is scientists saying
the top priority, and this is what it reads, I'm going to quote
it here, ``We will encourage State and local jurisdictions to
increase the availability of drug test strips and naloxone to
mitigate the impact of deadly drugs on communities across the
country.''
I have seen study after study that show that test strips
can save lives, that even addicts when they have access to test
strips will test the drugs they're using before they're taking
them. And so, I just will hope, and I'll put these questions in
the record, that if confirmed, you'll ensure that ONDCP
increases the availability of fentanyl test strips and
naloxone.
That we can work together as we have bipartisan legislation
here with you to get it passed and done right. And that the
tragedy that we have right now for test strips causing people
who are trying to save lives, put them in criminal
jurisdiction, criminal jeopardy is really bad.
So, I know we don't have any time left. I look forward to
those questions on the record. I just want to say one more
time, these are wrote hearings, and often they're the Senators
on both sides of the aisle are so busy, we're running to
different hearings.
I just want the people who are up for nomination to know,
and the families especially that we take this very seriously.
That there's a nobility. Everybody sitting at that panel who
wants to serve their country in the best way possible. Most of
you are giving up more lucrative positions to do what you're
doing, and you're not doing it alone. It's also a family
sacrifice.
There's a lot of talk about our divides here in Congress,
but I can say this for every, every Senator, thank you for
stepping forward to serve your Nation, and thank you to every
family person that's represented here as well. Thank you, Mr.
Chairman.
Senator Tillis. Thank you, Senator Booker. And Senator
Booker, your points on cannabis, I think are very well taken in
many respects. I think Congress is not doing its job by
recognizing that that bell has been rung. And unless we get
serious about regulatory regimens and other--Matt, we've talked
about the fentanyl crisis.
Now, we all know that at some point in the race for
potency, that these subproducts that are being purchased,
technically illegally in 40 different States, either for
medical purposes or several dozen for recreational purposes,
Congress needs to step up and try to figure out how we can
manage this, exploit its efficacy in areas that are helpful,
particularly for the treatment of persons with PTSD, a number
of other studies out there, pain. But we've got to step up. And
I appreciate you making those comments. And in my remaining
time here, hopefully we can get something done.
Well, this is going to conclude our hearing today. I had
the privilege of being able to vet the district nominee, so I
didn't feel like I had to ask you other questions after we put
you through hours of discussion between my office and Senator
Budd's. And Ms. Carter.
Also want to congratulate you-all on your nominations. This
is a unique opportunity here with four judges and a couple of
dozen kids. So, I'm going to ask the North Carolina delegation
to maybe stay behind so we can get a quick picture, and I can
figure out how I can get some of these other kids some tablets
that they may not have otherwise gotten.
And I do want to especially recognize Judge Conrad, Judge
Whitney, and Judge Numbers in the audience. They are people
that I know and I admire, and I appreciate you being here. I'm
going to adjourn the meeting shortly, but written questions for
the record may be submitted no later than September the 24 at 5
p.m.
Senator Tillis. Thanks again to all the nominees, and
congratulations to you and your families.
This Committee hearing is adjourned.
[Whereupon, at 12:46 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-119shrg62461/pdf/CHRG-
119shrg
62461-add1.pdf
Submitted by Ranking Member Durbin:
Bragdon, David A., Alliance for Justice (AFJ), Opposition letter. 2
Bragdon, David A., People For the American Way (PFAW), Opposition
letter........................................................ 4
Rodriguez, Susan Courtwright, Alliance for Justice (AFJ),
Opposition letter............................................. 7
Taibleson, Rebecca L., AFA Action, Opposition letter............. 9
Taibleson, Rebecca L., Alliance for Justice (AFJ), Opposition
letter........................................................ 13
Taibleson, Rebecca L., Conservative Action Project (CAP),
Opposition letter............................................. 15
[all]