Transcripts For CSPAN3 Senate Judiciary Committee Takes Up Judicial Nominations 20170912

Today nomination hearing. This is the tenth nomination hearing the committee has held this year. I want to take a minute to thank Ranking Member and her staff for working diligently. With my staff. And this senator to process these nominees. Filling judicial vacancies, and executive appointments is an important part of committee responsibility. And i know that all members of the committee take this responsibility seriously. Today, well hear from two panels. First well hear from the nominees to the Circuit Court. Noter dame law professor. And Michigan Supreme Court justice. Our second panel will hear from eric. To be head of the Civil Rights Division. And the department of justice will also hear from two nominees to the District Court judges in tennessee. I understand that theres some concern with having two Circuit Court nominees on a hearing agenda. So i thought id explain this. Because its unusual. When the majority leader extended the Senate Schedule in to august. We scheduled a nomination hearing to be considered for professor nomination. And that was scheduled to be august 9. That hearing was postponed when the senate went into recess. A week earlier than previously scheduled. So i decide to make up for that hearing that we lost in august. To combine professor bar rets hearing with todays hearing. Of course i aim to be fair in the process and make sure the other side have ample time to review the nomination qualifications. We have had professor bar rets material for 120 days and justice lar sons material for 96 days. I believe this is more than enough time for thorough review. But its also important to note that holding a hearing with multiple nominees is not new. Since i joined 36 years ago has held hearings with multiple Circuit Court nominees, and even before that. Chairman kennedy had one hearing with seven Circuit Court nominees. Todays nominees are indeed important. As are the positions to which theyre nominated. As an accommodation to the minority im happy to give senator 7 minutes for the first round of questioning for the first panel. Rather than the standard five. And of course ill make sure that senators are allowed to ask as many rounds of questions as theyd like to. In order to ensure everybody. Having their questions answered. Now senator finestein. Thank you very much, mr. Chairman. Id like to welcome our nominees and their families. And friends to the Senate Judicial yar committee today. As you have correctly stated, we consider four judicial nominees as well as eric dry bands nomination to lead the Justice Department Civil Rights Division. Now, a number of troubling developments have occurred in the past month. And i think they have implications for the nominees and nominations that were considering today. Today, were evaluating a nominee to lead the Civil Rights Division. Against the backdrop of what happened in charlottesville in august. When neo nazis and white su premists gathered at the unite the right rally and violence ensued. As everybody knows, a woman named heather hire was killed by one of the rally attendees. Driving his car directly and intentionally into a crowd. Which killed 32 yearold heather. And injured 19 others. Now most Public Officials condemned this violence. And condemned the hateful ideology that motivated it. The president did not initially. Instead he said there is blame on both sides. And i think i found that a really shocking statement. And i think its aapplicable here to the extent it affects a nominees service in the civil rights area. Because there are not two sides when one side contains neo nazis and white supreme cyst. These are idologies that people across the world died in a war fighting to defeat naziism. Senator hatch said his brother died in world war ii. Fighting naziism. So there isnt any good in naziism. And mr. Dry band, im going to be specifically interested in your views on what the Civil Rights Division would do under your leadership to enforce our laws against hate crimes and combat racial and religious discrimination. Where ever it is found. Additionally, President Trump pardoned former Sheriff Joe Arpaio in august. Many i views are clear. Im former mayor, i know a little bit about racial profiling. I know the struggle that we have had in Police Departments including my own. To prevent that from continuing. And many of us feel that joe arpaio should not have been pardoned. He braiseingly defied a federal judges court order to stop racial profiling. And continued to do so until being convicted of criminal content. A pardon for that kind of conduct demonstrates some disregard for the rule of law in this country. The Justice Department Civil Rights Division, the division that mr. Dry band has been nominated to lead. Found that sheriff arpaio systemically violated the civil rights of the people he was charged with serving and protecting for years. President trump indicated that he approves of that behavior with this decision. Which in my view serves only to deepen the divisions in our country. Im interested in what mr. Dry band and our judicial nominees think about the arpaio pardon. And what message they think such a pardon sends to people about the importance of complying with court order. Which is critical to the rule of law. Im also interest nd what message mr. Dry band believes this sent to minorties across the country. When the president eagerly exonerates an officer of the law who systemically violated the rights of people of color with impunity. I believe the president has sent an unmistakable message to law enforcement. That racial profiling is an acceptable police practice. And that should concern us all. So today well consider the nominations of two Circuit Court nominees. Professor amy coneny to the seventh Circuit Court. And sixth. Circuit Court Nominations are extremely important. If confirmed, professor bar ret and justice lar son would sit on courts that are just one step below the United States Supreme Court. And because the Supreme Court hears so few cases each years the courts of appeals are really the last word and last resort for most people in many of the cases. The committee, mr. Chairman will fully and sfarly review each of the nominees. I thank you and look forward to the hearing. Thank you, very much. Well call on our colleagues. First senator corker. To introduce his nominees. And then senator young for his nominee. I should say the president s nominees and youre hear to support them. Yes, sir. Mr. Chairman, Ranking Member, thank you both for allowing us to be here. I know senator young and i both serve on the Foreign Relations committee and were glad to be in the Hallowed Ground of this committee. And thank you for the way you conduct your business. Its my pleasure to introduce two tennesseens to committee today. Id like to thank President Trump and his team for making such excellent nominations and prioritizing tennessee. First id like to introduce thomas lee robyn son parker. President trumps nominee for the United States District Court judge for the Western District of tennessee. Im pleased to welcome tommy and all those here supporting him today. His wife allison and his three dars. Kath linn, anny and should be proud. I understand elen stayed home. Shes the most studio and stayed home to go to school. The other two daughters are here. He attended university of tennessee and south carolina. And went onto earn his law degree from Vanderbilt University school of law. He has a distinguished legal career as a lit gator and former federal prosecutor in memphis. American Bar Association unanimously rated him well qualified and im confident that he understands the proper role of a judge and will faithfully uphold the law. His experience in civil and criminal matters will serve the Western District of tennessee well. Tennessee also tommy has a record of service to his community, including serving on the board of directors at the Court Appointed special advocate association. Volunteer center of memphis and youth village. I support his nomination and thank this committee. And support his confirmation. Next i would like to introduce william chip camp bell. President trumps nominee for the United States District Court judge for the middle district of tennessee. Id like to acknowledge his wife, his son john and his parents beth and bill camp bell. Who are with him here today. A native of nashville, chip attended franklin road academy before entering the u. S. Naval academy. Where he earned an in the u. S. Naval force and become a flight officer. He attended law school at the university of alabama. Where he received multiple academic honors and served as the editor in chief of the alabama law review. Upon completion of law school, he joined a Birmingham Law Firm but later returned to tennessee and became a partner at a law firm. The american Bar Association also unanimously rated chip well qualified. I am confident he will faithfully uphold the constitution and impartially apply the law. His experience will benefit the middle district greatly. In addition to his careers, litigator. He demonstrated a commitment to the nashville community. He is a member of church where he teaches sunday school and also volunteers his time. Guiding perspective Naval Academy applicants through the admissions process. I congratulate chip on his nomination. And urge my colleagues to support his nomination. I would like to mention if i could the middle district has lost two active and two senior judges since november of 2016. And the two remaining judges now carry a weighted case load of 780 per judgeship. Senator cane worked hard on this issue. This is a fourth highest case load of any district whether judicial emergency if you might take that into act as you move both of the nominees through. Id appreciate it. Again i appreciate President Trump. The chairman. And this committee moving quickly on the nominations and look forward to working with you to see all the judicial nominees for tennessee confirmed as quickly as possible. Senator wanted to be here also. Hes chairing a hearing on helping americans in the individual insurance market. Theres no objection, id ask his remarks be entered into the record. By unanimous consent. Thank you, mr. Chairman. Thank you, Ranking Member. And im very proud to be able to stand with you with the nominees. Thank you senator corker. And i dont think we ask members questions so youre free stay or go. Whatever you want to do. I think youre telling me to leave. I wish you well. I never another senator what to do. I ask them what to do. Senator young. Thank you, chairman. And Ranking Member. It really is my honor and privilege to be here today and introduce and offer my strongest support for amy combmy. Who has been nominated by the president to serve on the seventh circuit. As you can see, professor comes before this committee today not only with my support, but with the strong support of her family. Her husband, her parents michael and linda, and her seven children. Three with us today. Id like to add before i touch on just a few of professors many professional accomplishments that when we first met, it was incredibly clear to me that amy would prefer at heart to talk about her family. Than to brag on her own professional accomplishment. While putting together her very impressive career. They have been busy raising seven children. In her conversations, she gushed about him and i just respect all shes been able to accomplish. While raising such a beautiful and well behaved children who i had an opportunity to meet earlier. With that said, being nominated to serve in a lifetime appointment for a u. S. Circuit court of appeals is a privilege few in the Legal Profession ever attain. Professor is qualified to serve in that role. She brings the skill set and temperment to excel as a judge. Shes a distinguished legal scholar at noter dame law school. With dozens of articles and presentations on the powers and procedures of federal court. Professor graduated from the law school at the university of noter dame. Where she served as editor of the noter dame law review. And earned the prides. Thats the top award for a student at that law school. She clerked for justice a. And university of virginia before returning to noter dame. As a professor, shes published in such publications of virginia law review, texas review and car nel law review. Her scholarship is focussed. Appellate procedure, cannons of construction. Judicial authority, and congressional power. In recognition of her expertise, she was appointed by chief justice roberts, a fellow hoosher. To the federal Advisory Committee on appellate rules. And selected by peers to serve as the incoming chair of the federal Court Section of the American Association of law school. Since being nominated for this position, the plots have come pouring in. A group of 450 of her former stupt students wrote to this committee saying quote our support is driven not by politics, but by the belief that professor is supremely qualified. All 49 of her fellow faculty members at noter dame law school did the same. Saying that while quote we have a wide range of political views. Arizona as well as commitments to different approaches to judicial methodology and judicial craft. We are united however in our judgment about amy. The american Bar Association rates her as well qualified. In her fellow Supreme Court law clerks endorsed her. As well as dozens of fellow professors of law from around the country. I take the senate role of nominating and confirming quality candidates to the federal court very seriously. And couldnt be more pleased that professor is the first nominee from the state that this committee will consider and hopefully the whole senate will consider. Republicans and democrats alike are praising the pick. This is a historic opportunity. As professor would be the first hoosher woman rather to have a seat on the seventh Circuit Court. Thank you for this opportunity to speak out on behalf of professor. And to give me highest recommendation in support of her nomination. Thank you, mr. Chairman. And Ranking Member finestein. Once again. Thank you, senator young. There are two people that colleagues werent able to introduce so im going to do that. Michigan Supreme Court Justice Joan Larson and nominated for the u. S. Court of appeal six circuit. Nomination is supported by a Broad Coalition of lawyers, judges, academic colleagues, shes well qualified to serve the people in the sixth circuit and the Committee Received several letters in support of her nomination. I ask one letter from former government officials including officials of the Obama Administration be entered at this point without objection. That will be done. Even though she lives in michigan, Justice Larson hails from my state of iowa. She graduated from the university of Northern Iowa in 1990. And thats about 44 years after i got a degree from the same university that then was called iowa state teachers college. Then she went to attend the North Western University School of law. Justice larson began her legal career clerking for justice sennal of the dc circuit. And Supreme Court. After clerking she entered private practice serving two years with a law firm. Justice lar sop has taught constitutional law, and criminal law at the university of Michigan Law School since 1998. Where she has earned the respect of faculty members and students alike. She won the l. Heart right award for excellence in teaching early in her career. In addition to her teaching responsibility, Justice Larson ran michigans clerk ship program. Helping hundreds of students and alumni pursue clerk ships at the federal and state level. As an adjunction professor she continues to run the law schools court program. A group of her colleagues there have sent in a letter in support of her nomination. And i ask you unanimous consent that will be included in the record. Without objection. That will be done. She also served as a visiting professor at the university of iowa college of law. And North Western school of law. Justice larson served as Deputy Assistant attorney general. In the office of legal console. Working to provide legal advice to the president. And executive agencies on difficult issues of constitutional law and statutory interpretation. In 2015, michigan Governor Snyder appointed Justice Larson to the Michigan Supreme Court. She was elected to the position in her own right in 2016. By a resounding majority outside of the courtroom. Justice larson is actively involved in volunteer work. To serve a disadvantage children. And she works very much in michigans veteran drug program. As well as a Mental Health program. Welcome to you and your family. Eric dris band is nominated to be assistant attorney general of the Civil Rights Division. Doj. Jd degree from North Western University School of law. 92. He then clerked for Justice William bower on the seventh circuit. In 94. He joined brown and in chicago. In 97 he served as an associate independent console in that position. Worked as a federal prosecutor closely coordinating the federal bureau of investigation and other agencies. After briefing returning to private practice in 2000 he joined the u. S. Department of labor. In the wage and hour division. 2002. Then shefshed as deputy administrator and forcing federal labor laws. Such as the fair labor standards act and family and medical leave act until accepting a position as general console at the e, oc in 2003. He left that agency 205. Joining gump in dc. And joined the washington dc firm of as a partner in 2008. He has dedicated his significant portion of his career to working for the u. S. Government. Enforcing federal employment and labor laws such as the age discrimination and employment act. Title 7 the civil rights act. Family and medical leave act. And the fair labor standards act. Which affects millions of mernls every day. Hes been recognized as quote the top rated employment litigation attorney by dc superlawyers. And band one labor and employment attorney in chambers usa. For the last two years. Im confident that his extensive experience as late gator and his career in Government Service will help lead to civil lead him to help run the Civil Rights Division. Im going to ask our two nominees to come now. And before you sit, i would like to swear you. Senator young, im sorry. I didnt. You can go as a. Good being with you, chairman. Thank you. Do you affirm that the testimony you are about to give before the committee will be the truth the whole truth and nothing but the truth so help you god . Both have affirmed. Please be seated. And well start with miss bar ret. You go ahead and say any statement you want to. And any introduction a family and friends and then well go to joan larson to do the same thing. Push the red button or whatever color it is. Thank you, chairman. Id like to thank senator young for the kind introduction. And chairman grassly and Ranking Member finestein, im grateful to both of you and the committee for taking the time to consider my nomination. Im also grateful to President Trump for honoring me with the nomination. I dont have an opening statement, i would like to introduce my special guests. First and foremost my husband. He serves our counted ri as an assistant United States attorney in the Northern District of indiana. I hit the jackpot when i married him. We have been married 18 yirs with each year better than the last. We have seven children. Senator young mentioned. We have our oldest three daughters with us today. Emma is 16. The first apple of our eye. Vif yan nebs xt to emma is 13. Shes our miracle. She was born in high taiti. Today she is a track star and i assure you she has no trouble talking. Tesz is also 13 years old. Both in eighth grade. Shes one of the most compassionate and determined people that i know. Our four children at home are with friends and fearless baby sitters. John peter is ten. Born in haiti. He joined our family in 2010. When he was three years old after the devastating earthquake. Leem is eight. Typically curious 8 yearold. And our spunky six yearold. Ben the youngest is five. And he has special needs. That presents unique challenges for all of us. But i think all you need to know about his place in the family is summed up by the fact the other children unreservedly identify him as their favorite sibling. I have with me my parents. Mike and linda. They traveled from louisiana. Where i was born and raised. Senator kennedy. And it is impossible to over state the impact that their support and example have had in my life. Last but not least, is judge lawrence silverman. He has served on the dc circuit for 32 years and i have the great privilege of clerking for him. And judge has taught me so much just about the rule of federal court and our system. And i greatly admire him as person and judge. It means a lot to have him here with you as i testify today. Thank you. Thank you professor. Justice larson. Thank you, chairman. Ranking member and the rest of the committee. For considering my nomination. Id like to thank the president for honoring me with this nomination. I also dont have a statement. But i would like to introduce my family and friends who are here today. The first is my husband of 20 years. Whos been with me every step of the way. As i left the relatively calm life of legal ak dem ya to take on the hectic life of a statewide elected official. And now as i have entered this new process. My two children, 17. And ben who is 12. Also here with me today. When i was interviewed by the american Bar Association for this process, they asked me what are you most proud of . I think they were expecting me to Say Something about the law. I said my kids. I told the truth. My sister jean and her husband randy both iowa natives came in from rock ford illinois. And im incredibly grateful for their support. My other sister couldnt be with us today. Shes a public schoolteacher in minnesota. And the School Year Just began. So she couldnt make the trip. My incredible parents who are truly the rocks of our family are in their late 80s and couldnt make the trip. They are both watching. We hope if we were able to figure out the technology with them. From their home in des moines, iowa. Where i was very lucky to grow up. Lastly, i have three members of the judiciary with me today. First, judge david sen tell of the u. S. Court of appeals for the d. C. Circuit. I was fortunate enough to clerk for him in 1993 straight out of law school. He taught me so much about the rule of law. About respect for the coequal branchs of government. And the important work that judges do. And im very grateful to have him here. I also have with me from michigan, one of my colleagues on the Michigan Supreme Court. Justice david. And his sister, judge who serves in the Circuit Court. I have been grateful to them and to the whole family for the friendship they have shown me through the years. I noticed in the gallery some of my former students and colleagues from the Justice Department. So im grateful to have them here. As well. Ill start with questions and i said we have seven minute first round. Professor ill start with you. You have been out spoken about your role and your catholic faith. And what that plays in your life. And you have thought and written about the role your faith should play in your profession. So id like to specifically discuss a law review article you wrote during law school entitled quote, catholic judges in capitol cases end quote. In this article, you seem to suggest that catholic judges are quote morally precluded from enforcing the Death Penalty. End quote. However you wrote that quote, judges cannot and should not try to align our legal system with the churges moral teachings where ever the two diverge. First question, you have had a couple decades of experience since you wrote this. To consider this issue further. Will you elaborate on the statements and discuss how you view the issue of faith versus fulfilling the responsibility as a judge today . When is it proper for a judge to put their religious views above applying the law . Thank you, chairman. Let me start with the last question and say never. Its never appropriate for a judge to impose that judges personal convictions whether they derive from faith or anywhere else on the law. This article i wrote has gotten a lot of attention since my nomination. Id like the opportunity to put it in context. I wrote that article when i was a third year law student with a professor. 20 years ago. It was a project that he had under way and he invited me to work on it with him. I was complimented that as a student he thought i was up to the task of being more than a research assistant. But i was very much the junior partner in the collaboration. That was appropriate given the relative stature. Would i or could i say that sitting here today that that article and its every particular reflects how i think about the questions today with as you say the benefit of 20 years of experience and also the ability to speak solely in my own voice . No. It would not. But i continue to stand and believe the core proposition of that article which is that if theres ever a conflict between a judges personal conviction and that judges duty under the rule of law, that it is never ever permissible for the judge to follow their personal convictions in the decision of the case rather than what the law requires. That article emphasized that point repeatedly. And i adhere to that today. Nobody started the applaud. Somebody needs to start the clock. There it goes. If now follow up. If youre confirmed how will you decide when you need to recuse yourself. I have two more questions for you. Yes. I would fully and faithfully apply the law of recusal. Including the federal statute. The cannons of judicial conduct. What i can fell you is that sitting here today, i cant think of any cases or category of cases in which i would feel obliged to recuse on grounds of conscience. Okay. You have written and spoken much about the legal doctrine related to president. Please describe how you understand Circuit Court judges to be bounds by president of the Supreme Court and your understanding of. I understand circuit judges to be absolutely bound by the precede precedent of the Supreme Court. The obligation is absolute. That Circuit Court judges are not permitted for example to anticipate over rulings of the court and jump the gun. Circuit courts are absolutely obligated to file a Supreme Court precedent. Circuit courts are bound to follow the pres dept of their own circuit according to to the circuit doctrine. And for example in the seventh circuit that means that judges follow precedent unless theyre extraordinary circumstances that justify its over ruling. Lastly, as we just discussed. Skir cut court judges are required to follow all Supreme Court president. If confirmed would you follow Supreme Court precedent involving abortion. Absolutely i would. Justice larson, during the hearing earlier this year. We discussed at length the proper role of a judge in the importance of Judicial Independence. The separation of powers and our system require an independent judiciary. Made of judges respectful of the other two branchs. But not holden to those branchs. As i said in the Supreme Court hearing. Judges must be equally independent of the president who nominates them and the senators who confirm them. Please describe what Judicial Independence means to you. And tell us whether you have any trouble ruling against the president who appointed you . Thank you for the question. I would have no trouble ruling against the president who appointed me. Or any successor president as well. Judicial independence means one thing. One very simple thing. That is putting the law above everything else. The statutes. Passed by this body and the constitution of the United States. So i would have absolutely no trouble. That would be my duty. We have often heard these words especially since january. Quote now more than ever, we need judges who will be independent of the president who nominated them. So id like to ask about your nomination and your independence. A lot much has been made about the list of judges then candidate trump propose as possible nominees. Of course you were on the list. So im curious, what did you when did you first learn that you were on the list . I cant tell you the exact date. But it was a the date it was announced. I dont know the date it was. It was a complete surprise to me. We were having a public hearing to hang the portrait of one of my former colleagues on the Michigan Supreme Court. And the way i learned about it is that first my colleague justice said to me, youre on a list. And then my phone started just exploding with texts. And thats how i learned. Tell me about the process that led to your nomination. Did anyone ask you to make any promises or assurances. Whatsoever, about your view of certain legal issues on the the way you would rule in certain cases . Absolutely not. And if i had been asked, i never would have committed to any such promise. You served as Deputy Assistant attorney general. For the years 02 and 03. The office of Legal Counsel is the preimminent office within justice. That advises the president by extension the entire executive branch. On issues of constitutional statutory interpretation. The Office Issues opinions that are binding on all executive Branch Agencies. During the Bush Administration that office wrote the now defunk torture memo. Did you have any role in writing or reviewing these memos. No, i did not. Did you work on any matters involving torture or rendition . No, i did not. To the extent they are not privileged, would you share a few of the matters you worked on. Sure. So my published opinions have been made available to the committee. They involve one question was whether executive Branch Agencies could procure Printing Services outside of the Government Printing office. And if they chose to do so, whether the Government Printing office could still be relied onto produce copies for depository agencies. One involved whether the e, eoc could impose monetary sanctions for failure to comply with Administrative Law judge orders. One involved whether or not the attorney general rather than the grand jury could issue a subpoena. And i concluded that the statute said the attorney general could issue the subpoena but the grand jury could not. Thats what the statute said. Thank you. Now senator finestein. Thanks very much, mr. Chairman. I would just like to say professor, that on a personal level youre amazing. To have seven children and do what you do. And as i watch the faces of the children, i can see that they very much care about their mother. And all those vibrations are very good. So i just want to say that to you. Its quite a family. I have trouble with one. So my admiration for you with seven is quite strong. You are controversial. Lets start with that. You are controversial. Because many of us that have lived our lives as women really recognize the value of finally being able to control our reproductive systems. And row entered into that obviously. I listen to your answers to senator grasslys question. And it leaves me a bit puzzled. Because you have a long history of believing that your religious believes should prevail. Let me ask a question. In a 2013 article, you argue the force of Supreme Court superprecedence doesnt derive from any decision by the court. But rather because litigants dont challenge the decisions. You listed Supreme Court superprecedent. But left out row v wade. You suggested that row is not a superprecedent because litigants continued to challenge it. However, as a textbook coauthored last year points out, roe is superprecedent because it has vooifed more than 3 dozen attempts to over turn it. So in a evaluating super precedents, why did you solely focus on the fact that row has been challenged by litigants on so many occasions. And not on the fact that the Supreme Court has repeatedly reaffirmed row in literally dozens of decisions . Thank you, senator finestein. That wasnt my list. I was addressing arguments that had been made by other professors. Serious, well respected scholars like harvard and north carolina. It wasnt my list. I was quoting them and their definition of super precedent. For a court of appeals, all Supreme Court precedent is superprecedent. As i said to chairman grassly as a court of appeals judge if i were confirmed i would follow precedent without fail. Second question. In planned parenthood vs. Casey. The Supreme Court reafarmed row and listed four factors. That must be considered before the court over turn precedent. One of the factors was a reliance interest. Meaning the court would consider whether over turning precedent l hardship because people had planned their lives in reliance on the decision. In 2003, you wrote that in deciding to overturn precedent, reliance interests should, quote, count far less when precedent clearly exceeds a courts irn terp prative authority, enquote. Give us an example of a Supreme Court precedent that competed the courts irn terp pretted authority . Is rowe an example . Senator, i confess that i dont recall the quote that you read to me and i think i would need to see it in context to fully address your question about that quote. As for your question about rowe, i think that the line that other nominees before the committee have drawn in refraining from comment about their agreement or disagreement or the merits or demerits of any Supreme Court precedent is a prudent one because i would commit if confirmed to follow unflinchingly all Supreme Court precedent and i would not want to leave the impression that i would give some press dents less wailt than others because of any kind of academic disagreement with one. Well, how do you evaluate the press dents, plural, with respect to rowe. The Supreme Court precedents . Yes. Well, rowe and casey and its prod againny, rowe has been affirmed many times and survived many challenges in the court and its more than 40 years old and its clearly binding on all courts of appeals. So its not open to me or up to me, and i would have no interest in as a court of appeals judge challenging that precedent. It would bind. Well, let me ask one other question on reliance interest. What do you understand womens reliance interest to be in the right to privacy which is protected by rowe . Well, senator, as you mentioned in casey, the court in evaluating the star decisis question, wade, the court itself weighed womens reliant interest in planning their lives and so the court said that in casey and thats the reliance interest thats been recognized in sprooem Supreme Court doctrine. And you accept that . Yes, was i accept all Supreme Court doctrines. Okay. Thank you. Let me turn to judge larsen, if i may. Justice larsen, excuse me. You were a deputy at the office of Legal Counsel during the Bush Administration. While you were there, the Office Issued several opinions that relied on sweeping theories of executive power. To justify the use of torture and other enhanced interrogation techniques. During many of those socalled torture memos were later discredited and withdrawn. Did you have any role in drafting, reviewing, or otherwise contributing to the torture memos . No, i did not, senator. I did not even know that they were being produced in our office. National Security Matters in the Justice Department are a close hold, for good reason. And the first i learned of the torture memos or even that that was a question in our office was when it hit the newspapers and at that time i was back in michigan as a private citizen. Well, if i recall correctly, that was approximately 2006 when that now those of us that served on this committee. That might be right. Had asked to see these opinions and, of course, were denied the opinions in the early days when they were written. But when you found out, did you express any concern about them to any of your olc colleagues and anyone in olc or Department Leadership . Well, i was back teaching at the university of Michigan Law School, i was not in government at the time. I read about them in the newspapers just like anyone else. So i didnt really think it was my place to contact olc leadership at that point. So you had no role in drafting, reviewing, or otherwise contributing to memos on interrogation practices, detention policies and practices, rendition, warrantless wiretapping, or any other topics related to the war on terror . So as to all of the first i would say no. As to any topic related to the war on terror, one of my published opinions, for example, is an interpretation of the patriot act asking whether or not the patriot act authorizes grand juries to issue subpoenas to foreign banks. Is that an opinion related to the war on terror . Im not sure. But i want to answer your question as faithfully as i can. Yeah. Let me give you one example. I understand that you were involved in drafting one memo related to detention and habeas corpus. You can describe that memo and the nature of your involvement . Senator feinstein, i understand that the Justice Department has withheld that memo in litigation. They have claimed privilege over that memo and so it would not be my place to be able to describe that to you. Give me something to think about. I mean, i wish that i could describe it. However, it is it is privileged, the Justice Department has claimed privilege over it and so it is my ethical obligation not to disclose that or any other advice given to the Justice Department. Okay. Thank you. Thank you, mr. Chairman. We thank you, mr. Chairman. First i want to commend you in your leadership in handling the confirmation process. Im personally baffled at the criticism for including more than one Appeals Court nominee in this hearing. This committee has had a chairman, four democrats and four republicans and during my nearly 41 years here every one of them, including me, held multiple hearings with multiple Appeals Court nominees. In fact, by my count, there have been nearly 50 such hearings more under democrat chairman than under republican chairman. Nominees here today are ready for a hearing and youre holding this hearing and thats a good thing. Thats a chairmans job, youre handling it well with your usual fairness and openness and i appreciate that, commend you for that. Now, ms. Barrett, let me just ask this question. Professor barrett, some say that a judge must decide each case based on an impartial interpretation application of the law. In other words, following the right process makes the results legitimate. Others say that a judge may decide cases based on her personal views or with an eye toward achieving certain results. In other words, the ends justify the means. One Left Wing Group issued a report about your nomination which states, quote, stunningly barrett has asserted that judges should not follow the law or the constitution when it conflicts with their personal religious beliefs, unquote. Now is that true . That is not true, senator hatch. Ive never said that. This group based its claim on an article you coauthored in 1998. That article considered a federal judge who is morally opposed to Capital Punishment presiding over a Death Penalty case. According to your critics, you believe that in such a conflict the judges personal views win. As i read the article, however, you believe the opposite, that in that situation the law wins and the judge should recuse herself. Whos right . I believe that the law wins and if there is ever this is the ethical obligation imposed by the federal rerescuesal laws, if a judge ever felt that for any reason that she could not apply the law, her obligation is to recuse. I totally reject and have rejected throughout my entire career the proposition that as you say the end justifies the means or that a judge should decide cases based on a desire to reach a certain outcome. Another important element of a nomination of judicial philosophy is whether or how courts should follow their prior decisions or precedents. This is called the doctrine of stairry de isis. And the issue is important for federal judge whos deal with written law such as statutes and the constitution. That same Left Wing Group also said this about you in its report. Quote, more over, barrett has said that judges should not be bound by stairry de isis, unquote. Is that true. I have not said that judges should not be bound by that. Senator hatch, the bulk of my writing about that has been to emphasize its benefits to the system and i have not said that judges ought not observe it. I think thats how i read your record too. I think it really hurts the groups credibility when its so seriously distorts a nominees clear record, which they have done. In your case, this information is so blatant that almost looks like well, it looks deliberate. Its also disturbing when groups appear to suggest that someone who, like you do, takes her faith seriously and cannot be an impartial judge. This would not be the first time that outside groups or senators have objected to a nominees religious views. They must not have raetd the contusion which prohibits a religious test for public office. Please respond to that notion that a real commitment to religious faith is at odds with your impartiality as a judge. Senator, i see no conflict between having a sincerely held faith and duties as a judge. In fact, we have many judges both state and federal across the country who have sincerely held religious views and still impartially and honestly discharged their obligations as a judge. And were i confirmed as a judge, i would decide cases according to rule of law beginning to end and in the rare circumstance that might ever arise i cant imagine one sitting here now, where i felt that i had some conen sious objection to the law, i would recuse. I would never impose my only personal convictions upon the law. Justice larsen, the Left Wing Group that so seriously mischaracter rides professor barretts views has done the same for you. They say a 2006 oped shows your believe that a president could ignore a law enacted by congress simplily because he thinks it would prevent him from governing as he sees fit. But they left something out. He also wrote in that open oped that if the president may ignore the will of congress, quote, it sfor one reason alone, because the constitution so commands. Unquote. Looks to me like your critics acontribute your view that you expressly rejected, is that right . I would agree with that statement, senator hatch. That is the statement that my critics misattributed my quote. May the president ignore a statute just because he wants to do so . Absolutely not. In vent years, an important issue related to a nominees judicial philosophy is whether judges may use for foreign law to interpret domestic law such as the constitution. In one article you distinguish between empirical and substantive uses of International Law saying that the former can be appropriate but the latter would be revolutionary. Could you please explain this distiks . Disstiks. When i was talking about the various ugss that courts might make of foreign or International Law, one thing i thought was that sometimes contusional doctrines requires us to have realworld answers to know how a particular law will play out. And that is baked into the doctrine. And sometimes the only place that might have experimented with the particular question at issue might not be a domestic source. So, for example, in the case of washington versus gluchlberg, the Supreme Court looked to the practices of ledger land, not to determine whether or not our law should follow netherlands, but to figure out whether or not a particular result would ensure because that was required by the constitutional doctrine. Mr. Chairman could i ask one other question. Go ahead. I appreciate that. I want the record to reflect that each these high will he qualified nominees is supported by a long list of prominent lawyers from across both sides of the aisle, and throughout the legal provisiofession. I think thats complementary to both of you. Anybody that respects the law would respect each of you. Senator. Ive been very, very sorry, mr. Chairman. Ive been very, very impressed with both of you. I think its a great privilege to serve on the federal courts and a great privilege to serve anywhere in the federal system. But all i can say is that i just want to personally congratulate both of you for the tremendous way youve approached the laws and for the intelligence that each of you has which is really, really terrific. So thank you so much for being willing to serve. Senator coons. Thank you, mr. Chairman. Justice larsen i wanted to ask you if i could two questions about habeas and about right to priefs . I some of your writings on it so i can better understand your views. In a 2004 article you wrote and i think im quoting here, it would be an understatement in the extreme to call the Supreme Courts decision in lawrence v. Texas revolutionary. Court overruling a president dent only 17 years old. Held the constitution forbid states from krim criminalizing homosexual sodomy. Do you think it was wrong to overrule that law which made same sex a crime and does it contain a right to privacy . Thank you for the question, senator coons. As to the first, i would say two things. One, that law review article expressly declined to take a view on the merits, that was the opening paragraph just to describe heres what they did. And then the next paragraph begins by saying, the merits aside, and then went on for a hundred pages to talk about not the merits of lawrence versus texas. So that would be the first thing. The second thing i would say was with respect to any precedent of the u. S. Supreme court, i think it has been the position of nominees appearing before this body, not to take a position on whether they were rightly or wrongly decided. And that is because all Circuit Court nominees and in my current position as a justice of the Michigan Supreme Court are bound by the Supreme Courts pronouncements. And i would never want a litigant in my court, in my current cart even to think that i might not fairly follow the precedence of the u. S. Supreme court, because i absolutely will. Your second question i think was is there a right to privacy in the constitution. Is there a right to privacy embedded, is the analysis thats led to the establishment and this series affirmed Supreme Court opinions correct . Well, again, senator, i dont think it would be appropriate for me to comment on whether the decisions of the u. S. Supreme court are right or wrong, but you are absolutely right to note that since griswold versus connecticut the Supreme Court has recognized a right to privacy. That has been more than 40 years. I couldnt tell you the exact date of griswold, i alleges. Let me move forward if i could, we have just a few minutes. The other point i was goegt was they moved beyond the privacy analysised on which griswold and rowe rest and inserted a difference analysis. But one last question four, if i might, that i think follows up somewhat on a previous question. You yoet wrote an article commenting on the signing statement that accompanied the detainee treatment act of 2005 which outlawed torture. Help me understand your view about whether it would be legal for the president to violate that act in order to engage in torture in order to protect the nation or pursue a higher calling. Sure. So that oped was not meant to comment on that particular signing statement but rather to talk about signing statements in general. But as to that particular signing statement or any signing statement, if any case were to come before my court that would present that question, what i would do is i would evaluate that under Justice Jacksons three part tie polling in still seizure case. In such a case we would be in box three, which is the lowest level which would say that the president s powers were at his nad to dore and i dont believe theres a president of the Supreme Court that says that the president has ever survived a box three challenge. Thats how i would evaluate it. Thank you, justice. If i might, proffessor first thank you for introducing your incredible family i sometimes struggle to raise three children and you having a laermg family moved me. Your daughters are remarkably well behaved. On habeas corpus, i wanted to ask you a recent piece that you wrote. It stood out to me because habeas rights protect against access to rights and federal courts and you said because habeas was not a tool for obtaining post conviction relief at the time the constitution was ratified the found thing generation could not have understood the clause to protect this use of the writ. Isnt it true that it might block an effective assistance of counsel claims or claims based on actual innocence and does that concern you . Yes, so senator youre i think referring to a short piece for the National Constitution Society Constitution project in kneel nael and i wrote a back and forth where we id fight Current Issues in the suspension clause and controversies. And the post conviction portion as i recall of the essay was fairly brief and i think i think just the point that i was making and that the professor had responded to we had devoted the bulk of that essay to focus on the question of congresss ability to suspend the clause. Right. So i observed the core office of the writ is protection against executive detention that in the context of post conviction detention that the court has suggested that since its not the core office that there might be more room to move in the suspension clause. But the court has rejected the possibility so far. I mean, the courts precedent is that congress cannot fully withdraw that and that essay was not meant to take on that challenge. So let me just last since i have one minute, youve also written that the Supreme Court was wrong in booma dean when it held guan tan reno mow detain knees must have access to habeas. Have you changed your view . Am i misunderstand organize mischaracterizing your view and do you think congress could prevent detainees from acc session federal courts . In the portion of the essay where i address that question what i said was that the history of the suspension clause and the precedent had cut against the majoritys position. That the majoritys position was driven by other concerns, you know, prudential concerns. So i did indicate for more agreement with the discents on that than the majorities. Say that as an academic analyzing an opinion outside of the process of actually deciding a case and reading the briefs is a far more general enterprise, its more of a birds eye enterprise, and so i couldnt say with respect to that issue or any other that i would decide the case the same way as a judge. The role of an academic is very different. Thank you. Thank you, mr. Chairman. Thank you. Senator kennedy. Thank you, mr. Chairman. Professor, im going to call you judge instead of justice. That is perfectly, perfectly okay. I aspire to the office of judge, if im so lucky. You know, a long time ago in a galaxy far away i used to practice law. And i appeared in federal court a lot. And the impression that i always came away from federal court with was the breathtaking power of a federal judge, appointed for life. Im pleased to say that most president s get it right. Every now and then i think the president s doh through no fault of their own have made mistakes, but theyre few and far between. I realized back when i was practicing law that one of the most important jobs of a United States senator, never imagined then id be a United States senator, was the advice and consent part. We have to make sure that a wellintentioned president didnt make a mistake. Now, its been suggested to me by some people that i and others should not ask hard questions of nominees by president s of my own party. And i appreciate that advice. But i dont intend to follow it. And my response to those who made that suggestion was, look, this is america, you can believe what you want, and if you feel really strongly about it come on down to louisiana and beat me for the u. S. Senate. But until then, im going to ask the questions i want to ask. Now, youre both smart, i mean, wouldnt be here if you werent. Your resume is just extraordinarily impressive. And i get it that you ill stipulate for the record that youre going to both follow precedent in every single case. In fact, if you came here and testified that you wouldnt, then youre not smart enough to be a federal judge, okay. So i get that part. What im trying what i want to understand is what you think about the law. I mean, you both look at the law critically, youve both taught before. What did you teach, judge . Or maybe still do. I taught constitutional law, criminal procedure, a course on statutory interpretation, and various other things when they needed me to do it. Okay. What did you teach, professor, or do you teach . I do teach. I teach civil procedure, i teach evidence, i teach constitutional law, the structural portion of the class, i teach federal courts, i teach statutory interpretation. Okay. Let me ask you both a question then. Do you believe there are unenumerated rights in the United States constitution . Senator, the Supreme Court has long held that there are unenumerated rights in the constitution. I know that. Im asking you what you believe. Well, senator, i feel compelled, i do welcome your hard questions, im glad, you know, i think thats part of this process. I do think, though, that the line that other nominees have heeded in this case is a prudent one not because i dont want to answer your questions or be cooperative, i want to cooperate as fully as i can. But i think if i express a personal view on any of these matters, it might give the misimpression that my personal view is what would drive the decision of a case. It would not be. Ill stipulate that that wont happen. I believe you. Do you think do you think theres a right to privacy in had the constitution i mean, when griswold came down and you read it, what did you think . Did you say, this is a wellreasoned opinion and i agree with it . Of course you said youre going to follow it, we all follow the law. If you dont follow the law you go to jail, ill stipulate that too. But what did you think about the opinion . I wasnt alive when gris wald came down. Well, what are about when you first read it . Well, gosh, senator, i think, again, whatever i might have thought about it i first read it when ways a law student. But whatever i would have thought about it then or whatever i would think about it today wouldnt matter. I would put that aside and the application of that im going to move on. I get it. I dont agree with the position youre taking where you wont talk to me about the law, but if thats what youre going to want to do, thats your call. Its america, its a free country. Justice, judge, do you believe in substantive due process . The Supreme Court of the United States has plainly articulated that substantive due process is a part of our constitution and i would follow that. Okay. All right. Tell me about your thoughts about the adequate independent state ground doctrine. Im sorry, the i dont im sorry i didnt understand the question. Tell me about your thoughts about the adequate and independent state grounds doctrine. Oh, adequate. The adequate and independent state grounds doctrine is a doctrine articulated by the Supreme Court of the United States and if any case came before me that called on me to apply that doctrine, i would apply that doctrine. Okay. Have either of you ever read an opinion in your entire lives that you looked at and said, i dont quite agree with that . Surely i have. Okay. Which ones . Well, so, senator, i am being asked i currently sit on the Michigan Supreme Court and i am here seeking a nomination to the sixth Circuit Court of appeals. In both of those roles, it is incredibly important that people who appear before my court would understand that i would apply the precedent faithfully and if you heard a judge say, wow, thats a terrible precedent, i think you might question whether or not the judge would apply that precedent faithfully, especially if its your best case. Imagine this is your one and only case. So respectfully i dont think its appropriate for me to comment. Well, but you see what concerns me is i know you both say youll follow the law, and i believe you. But youre human. And it bothers me when when nominees will not come before this committee and allow us to have a goodfaith discussion of the law and the reasoning and the analysis. The laws not perfect. There have been opinions handed down that have been reversed. Youre not robots. You dont have artificial intelligence, have you Real Intelligence and youre going to be expected to use it. And i really regret that we cant have a full discussion of the law about substantive due process and procedural due pro process. I understand you want to be confirmed. I get that part. Im over, mr. Chairman. Im sorry. Senator hirono. Thank you, mr. Chairman. Welcome to both uh and your families. Ill start with you, ms. Barrett. You wrote about the duties of catholic judges in capital cases and that the catholic judge should recuse themselves. Today you testified that it is never proper for judges to put their personal views and i would assume their views about Death Penalty cases, for judges to put their personal views above the law, is that correct . Yes. You also testified today that you would not recuse yourself from any case on the grounds of conscience. Well, senator, let me clarify what i said is that in all case woiz fully and faithfully apply the law of recusal. So i dont think i could or that any nominee or judge could say at the beginning im never going to recuse because that itself would violate the judges ethical obligation to always be alert to that possibility. What i said was that i could not imagine sitting here any class of cases or category of cases on which i would feel obliged to recuse on grounds of conscience. So despite the fact you had written in an earlier article that catholic judges, and you would be a catholic judge, you would not recuse yourself from Death Penalty cases . Senator hirono the article addressed a very nare yo row question. It addressed the obligation or how a conen sious subjector who was a trial judge would proceed if the law required that zwrouj enter the order of execution. It did not address even the obligations. We didnt draw any conclusions about how an appel let judge which which say Conscientious Objector would becave i haf. When i was a law clerk to Justice Scalia i routinely participated in Death Penalty case and there were many of them. Would you recuse yourself as a catholic judge from Death Penalty cases . The article it was a complex question and it took us almost 50 pages to analyze it, lots of research and lots of thought. The article did not argue that district judges had to recuse altogether in capital cases from every phase, but i would say that i would if i were being considered for a trial court i would recuse myself and not actually enter the order of execution. That was the only conclusion the article reached and i would stand fwha today. So thats a pretty astounding conclusion, in my view. So what you testified to today is at odds, in my view, from what you had earlier written. And especially with regard to the role of religion in particularly for catholic judges. So would you agree that your views have changed from your earlier writings . Senator hirono, im not sure that i track that question. The law itself in 28 usc 455 provides the outlet of recusal if theres ever a circumstance lierk the one we identified in that article. Ms. Barrett, i think your article is very plain in your perspective about the role of religion for judges and particular in with regard to catholic judges. And of course not all judges are catholic so we could go down the path of what you think would be the role of religion for judges who are not catholic. But be that as it may, it seems to me that your testimony today is at variance, is at variance with your earlier writings. And swoi draw that conclusion. I think that you are asked a series of questions to give you a chance to clarify your earlier views and i believe that you did. So i do not want 10 to gauge in a your further clarifications. I draw the conclusion that your views have changed and if your views havent changed then i would say your article stands for itself. Your earlier writings. Well, senator, what i said to chairman grassley in the beginning is that i did write that article as a student 20 years ago and that i would not say that the article in all of its particulars represents my view today. With 20 years of Life Experience i would in speaking in my own voice would describe things a little bit differently now. But what i said to the chairman and what im saying to you now is that i continue to subscribe to the core argument of that article which is that a judge may never subvert the law or twist is in any way to match the judges convictions from whatever source they derive. And thats what that article repeatedly said and its a position to which i adhere before you now under oath. It was a 50page article as you say and other people can draw other conclusions so it was enough of a statement of what you believe the role of religion was that it certainly caught the my attention because i thought that justice was supposed to be blind. So lets say that you did, you know, as you say, you acknowledge that in all of its particulars that you have changed your views about some of the things that you wrote in the article. And i hope that you can maybe very briefly because im running out of tile dined have other questions for you, maybe you can submit for the record then what other parts of the article that you no longer subscribe to, that would help me. Let me go on to my next question. You were asked some questions about the article that you wrote relating to super precedents and you made it very kplain plaplai not your list. But did you agree with that list of the super president dents . Let me say from the perspective of a Supreme Court judge all precedent is super precedent. On that list of super precedents i was using a list by other very well respected scholars. Im run willing out of time. Did you agree with that list even firefighter it was not a list that you had compiled. According to the definition of super dprenlts employed by those scholars, yes. If you use a different definition of super precedent, for example a precedent thats more than 40 years old and that it survived multiple challenges then i would inn clued rowe on that list. It wasnt definition. Did you say you would inn clued rowe on that list super precedent. If it were defined differently. Super precedent is used differently in different context and in the particular context in which i was writing the particular definition that was used it did not satisfy that definition if the what im saying is that if you use a different definition of super precedent, which some people do, i think rowe could satisfy a different definition. I would also point out in language that i quoted from these other scholars that professor fallon at harvard specifically said that the exclusion of rowe or any other case from the list does not mean that it should be overruled. But, again, for a court of appeals judge, thats kind of beside the point because all precedented and super precedent when it comes to the Supreme Court. In your view, based on a different definition of what a super precedent should be, the definition that you cited 40 years survive multiple challenges, do you think that rowe should be in that list of super press zblent plainly acourting to that definition. Thank you. Senator. Mr. Chairman im out of time but i do have other questions id like to submit tort record for both of our nominees. Senator lee. Thank you very much and thank you for being willing to be considered for these nominations and for bringing your families along. As one of seven children, i know what each uh probably experience. Youve probably at times been called by your siblings names, even in a familiar live two and i have a daughter named eliza by the way that probably happens from time to time. Id like to start by addressing a topic raised by bhiechb colleagues a few minutes ago and talk a little bit about why it is that its often not appropriate for a judicial nominee to speak about his or her opinion about a particular ka nonical precedent. Do you agree with mar very madison, do you agree with gibbons v. Ogden . And your reaction to that, would i assume be the same as it was to the previous line of questions raised by my colleague . Is that correct . Yes, senator lee. Would you agree with that Justice Larsen . Absolutely. And the fact is that this is not about being able to talk about Supreme Court opinions, the point here is that there are certain cases that are form part of the cannon our legal system. And those cases are not up for debate. Those dcases are not appropriately debated by nebz of our judiciary. When a case comes up youre expected to rule on the basis of the law and the facts before you in that particular case. And to the extent the case were talking about forms part of the cannon of the law that youre required to apply, it will have been inappropriate and unfair to the litigants appearing before you for you to have expressed a personal opinion on that particular line of cases. So with respect to my colleague, i do not believe, and i strongly disagree with the characterization that it is in any way, shape, or form inappropriate four to not answer that question. Now, ms. Barrett, i want to start with you on a couple of questions. Some of my colleagues have asked you a few questions about stairry de isis based on one of your academic pieces we discussed earlier in this hearing. Everyone tends to talk about it from an institutional perspective as you correctly point out in your piece. But you take the somewhat different approach of considering it from the perspective of individual rights. In other words, when a court is following the doctrine of stairry dedecisis theyre riegds the right of being effective in raising a particular argument before the court. Is that an accurate characterization . Of that article, yes, senator lee. And so in that respect its an imposition on individual liberty on the ability of an individual party to piece of litigation or to a criminal matter to raise certain arguments . Yes. Yes. Now, ieds u id also like to following pount. During justice kagans hearing she was asked bay bench memo she wrote while serving as a law clerk on the Supreme Court of the United States to justice thur goode goo marshal. She wrote quite honor efly i think ale although the lower courts decision is well intention dollars theyre ludicrous. Other justices quote, might create some very bad law on abortion or prisoners rights, closed quote. She was asked her b her feelings about that and heres how she respond approximately when i was clerk fork Justice Marshal ways 27 years old and Justice Marshal was an 80yearold icon. A lion of the law. He had firm views were had he strong views. He knew that he thought about a great many legal questions. He had been a judge for some fair amount of time, closed quote. The committee accepted that answer and went on recognizing this fact that justice now justice kagans views in her 20s would not necessarily be the same views that she might take today. Do you think thats a fair waive approaching that . I do, senator lee. Justice larsen, after Justice Scalias death i was pleased with your fitting tribute to your former boss just scalia and the piece that you wrote appropriately described the relationship between a law clerk and a jurorist as an almost familiar well. Its disappointing but not surprising that some have criticized you for your association with Justice Scalia and your praise of him but i was struck by the following passage when you write, quote, Justice Scalia wanted to get things right and therefore he valued clerks who would argue with him about why his initial thinking might be wrong. If you could prove your case, you could win him over. But it could not be done with appeals to emotion or outcome or legacy or anything else. The only way was to coin convince him was to show him that the law was on the other side. Usually by peeking nervously over his shoulder as he read and questioned and reread cases. My proudest moment of his law clerk was convincing him with two sleepless nights of research into dusty old precedents that a criminal defendant should win in a case that none of the justices originally thought he should win. Closed quote. Justice larsen, what you can tell us about how Justice Scalias jurisprudence helped shape your approach to the law and what did your clerkship teach you about the humility that a good judge should have . Thank you so much for that question, senator lee. Justice scalia, as you noted in the remarks i made, believed in following the law where the law led him. He never worked the other way around. That is, find the result that youd like and then find the precedent to fit it. The one simple and clear rule that he taught us was that the law governs, not personal interest, not personal outu yco not personal preference. He taught us to be very careful in reading the cases and reading the statutes. He taught us to debate. He taught us that what i hope i am trying to teach my law clerks is that engagement with ideas that might not initially seem appropriate to the judge can often lead the judge to change her mind and to get the right results. And that is my most important job as a justice of the Michigan Supreme Court and if i am lucky enough to be confirmed to the sixth circuit. Thank you very much. Senator durbin. Thank you very much. Prafr barrett, many questions that have been asked of you relate to your religious belief and it is relevant in that you have many times spoken out as a professor and as a lawyer about the burden and opportunity presented by your faith. This article of 20 years ago which you wrote with john gar i have, as i understand it, you now say you dont agree with, is that correct . No, senator durbin, i agree with the articles main point, as i said, which is that any kind of conviction, religious or other kwooiz wise should never surpass the law. A judge can never follow or impose that judges personal conviction upon litigants in the decision of cases. That was the articles main point i agree with it. I would sitting here today write that article the same way or say that its an exact mirror image of how i would feel now 20 years older . No. I mean, but the thrust of it, that core point which restates 28 usc 45 obligation i obviously as ever judge would adhere to. Im a product of 19 years of Catholic Education and everyone e every once in a while holy mother of the church has not agreed to the vote of mine and has let me know. You both use a term in that article ive never seen before. You referred to orthodoxed catholic. Whats an orthodoxed catholic. As i recall that term, we said something more lack of a better term were using orthodox catholic and there was a long footnote saying there was an imperfect term, it could refer to orthodox judaism, greek orthodox, so we kind of cast about. But what that term was designed to capture because we were talking about conscientious objection, was a judge who accepted the churchs teaching that the Death Penalty would be impermissible in that case. We wrote about it from the perspective of a catholic judge because my professor had already undertake than project. But its a problem that could face a judge of any religion or no religion at all who had a conscientious objective to the Death Penalty. Do you consider yourself an orthodoxed catholic. Im a catholic, senator durbin. Well, orthodox catholic we kind of, as i said, in that article we just kind of used that as a proxy. It is not, to my knowledge, you know, a term currently in use. If youre asking whether i take my faith seriously and im a faithful catholic, i am. Although i would tres that my personal Church Affiliation or my religious belief would not bear in the discharge of my duties as a judge. There are many people who might characterize themselves as orthodox catholics who now question whether pope francis is an orthodoxed catholic. I happen to think hes a pretty good catholicing. A agree with you. Good, thats good Common Ground for us to start with. Its interesting that both of you have clerked for judge scalia and he has become quite a presence in this hearing in the questions that weve asked. Another teaching of the church relates to same sex marriage and the onner feld decision Justice Scalia was very outspoke and criticizing and dissenting and as only Justice Scalia could from that decision. So tell me how you view that, the whole issue of samesex marriage area your catholic belief, and what it means to you on the bench if a case comes before you that raises this precedent. Well, senator durbin, in the context of samesex marriages and in any context my religious beliefs would not bear on that at all. Beginning to end in every case my on kbags as a judge would be to apply the rule of law in the case that you mentioned would be applying oberga fell and i would have no problem adhering to it. I think one of the great traditions in this country is that judges participate in the law, participate in the decision of cases and rule even when they disagree with the outcome. I think actually when they especially had they disagree with outcome thing of a judge who knows a defendant to be guilty because of suppressed evidence, but that judge will still fairly ensure the rights of any litigant which is why i keep saying again and again any personal view would be irrelevant to that because i understand that. I listened carefully to senator lee and others and i cant tell you how many nominees have been before us in this panel for the bench and virtually all say the same. Im following the precedent, im following the law, im following the constitution, dont worry a thing about who i am, how i was raised, what my religion is, what my Life Experiences have been. Put it all aside. I dont believe that for a second. I dont think cases reach your level at circuit level that are that clear. Maybe some are, but few. Youre really called on to judge cases that are a close call, and some of them involve interpretations of what did that word mean in that Supreme Court decision. What did that word mean in the law . What was congress trying to do . And i dont think you can divorce yourself from lifes reality at that point. I am going to see things in a certain way based on what ive done, what ive seen, what i believe in my life. And im going to call it the appropriate interpretation of the law. So i dont buy this robot approach that its just so easy, you push the law and the facts on one side and the opinion comes out the other side. Otherwise, every opinion would be a majority or unanimous decision and that isnt often the case. I do want to ask you about one thing. And i just have a minute and a half left here. The worst vote i ever cast in house or senate was over on a panic over the appearance of crack cocaine. The belief was that crack cocaine was cheap, it was easily accessible, it was devastating, particularly to pregnant women, and we need dodd something about it and do it damn fast, and we did. We imposed a penalty on crack cocaine of 100one over powder cocaine, 100 to one. The net result of that was devastating. Particularly to african americans. They were incarcerated in numbers unheard of previously. And many of us came to realize what a terrible mistake we had made and we came up with a conclusion or at least a solution, i think, or at least a response. Durbin and session, go figure, came one a compromise to bring it down to 18 one, he wantd one to one, he wanted something higher, thats what happens in congress. And then the Sentencing Commission said well if whun to one was so bad and were down to 18 to one we aowe the people currently incarcerated a review as to whether or not theyre going to stay in prison put wrote an article critical of that. Tell me why . That was a short blog post andy not intent e tend i didnt comment on the crack cocaine disparity. That raised the practical questions. My mus husband is an attorney and this had been table talk how it was going to practice those retroactive claims and it was a short blog that solicited information from others does anybody know i think it was the first time the Sentencing Commission had made a guideline retroactive and it said, gosh, this is going to be an administrative issue and does anyone know how these kinds of things would be handled. Well, i hope thats all it was because i think there was a gross miscarriage of justice and unfortunately i was party to it along way lot of members of congress and both Political Parties and think the commission on a bipartisan basis and unanimous basis did the right thing. Senator flake. Thank you, mr. Chairman and thank you for appearing here. Thank you for bringing your families. Its nice to see such support from families. Im one of 11 children so i know im right in the middle. People often ask, kids can sympathize if i was ever longing for love or longing for affection. I always say, no are i was just longing for food. Id trade all of the affection in the world for seconds on dessert just once in my life. So anyway, its nice to have you here. Professor barrett, let me begin by saying something i told Justice Gorsuch during the hearing that i dont plan to ask you about your religion or how you practice your faith. I dont i think to do so with unreasonably imply that we should administer some kind of religious test and that would undermine a crucial freedom that the constitution safeguards and so i appreciate the answers that youve given in this regard over and over again. Is there anything youd like to add that hasnt been said in that regard . No, senator flake. Thank you. Justice larsen, could you tell me a little about your work on the Veterans Drug Court . Thats an issue that ive been active worth and it affects my state. I would be delighted to. I dont know what sort of activities have been taking place with respect to the federal courts, but in michigan we are a leader in Veterans Courts. We also have drug treatment courts, sobriety courts and Mental Health courts. I am the Michigan Supreme Courts liaison to those courts and my role is to help support and facilitate the great work thats being done there. Often our service men and women come back from serving our country and they face problems related either to post Traumatic Stress disorder, to alcoholism, or drug dependency and what our Veterans Courts do is they pair someone who has run into trouble with the law with a mentor, often a ven tran mentor. Theyre put through a probationary process which holds them accountable but also gets them the help they need. I am very proud of the work that ive been able to do with respect to the veterans and with respect to our other treatment courts which really are working and saving lives and saving taxpayer money. Weve seen that impact in arizona as well. To go and i went a while ago and witnessed that court in action. And to see the various groups that were there readied to help these veterans, a number of outside groups and family members and friends who had been through before. And the judges certainly who had who were familiar with the military experience. And so any way i applaud you for that. How will that impact or how has that impacted your view toward the law . Well, senator, i dont, like i said, i dont know what the federal courts have been doing with respect to those sorts of those sorts of treatment courts, but i would be interested in find out because i think theyve been a Great Success at least in michigan. What i can say with respect to the law is it always matters, judges should always recognize that there are real people on both sides of the v. I dont think that that means that judges distort the law in order to reach a particular outcome, but i do think that it means that judges need to make sure theyre working very hard to get the right answer because the decisions that we render have realworld consequences. And so thinking about that, those experiences when i get to go to a Veterans Court gradation or drug court gradation, i get to see a family that gets putback together, those are some of the happiest days when i get to wear my current robe and i hope that if im given another robe, actually i think in the federal system you have to buy your own roen robe, so i will buy my own robe if im so fortunate, and i hope that ill get to have similar experiences on the federal court. Thank you. Professor barrett, i find it remarkable that youve received ground swell of support even from fellow Supreme Court clerks from both sides of the aisle. According to them, you quote are eminentmently qualified for the job. This view seems unanimous. Every law clerk from the october team in 1998 has joined the letter. Everyone these clerks are not alone in their endorsement. It also appears that every fulltime colleague of yours at Notre Dame Law School signed a letter supporting your nomination. We in the senate know better than most that its tough to get a unanimous decision. So that is impressive and mr. Chairman id like to submit to letters into the record, the first comes from professor barretts fellow Supreme Court clerks and the second is from her Notre Dame Law School colleagues. Without objection. Professor barrett, then just in the remaining time i have, whats your approach to statutory interpretation . Under what circumstances, if any, should a judge look to legislative history in construing the statute . Thank you, senator flake. The Supreme Court all justices are clear that you begin with the text of the statute and when the text of the statute is clear then the text of the statute controls. That legislative history can sometimes provide helpful context, but when the text is clear i would see as a judge no reason to consult it. Thank you. Judge larsen, do you agree . Yes droir. All right. Thank you, mr. Chairman. Thank you both for appearing brus today. I know professor barrett that senator feinstein discussed this 2013 piece and in relation to starry de isis, this article you right. In that same bees he also addressed the role of precedent in controversial areas of the law stating that in the world we live in that level of stability is more than we have experienced or should expect in particular divisive areas of constitutional law put noted that you tend to agree with those who say that a justices duty is to the constitution and that it is thus more legitimate for her 10 to force her best understanding of the constitution rather than a precedent she thinks clearly in conflict with it. So my question would be how important do you think stability is in the law and balancing that constitutional view and precedent that you may not agree with . Where do you see stability in the law factoring in . Thank you, senator. I think stability is very important in the law and that 2013 article in the texas law review i was defending the Supreme Courts own doctrine which gives weaker starry de isis effect to constitutional cases. The court has had this practice since justice bran dice wrote a separate opinion in coronado oil and gas case saying that constitutional case dollars should receive the least constitutional effect because the difficulty of amendment means that the Supreme Courts overruling of the case is often the only way to correct the error. And in the portion that you quoted where you said that i said i tend to agree with those, i was actually responding in that paragraph to the argument that its never permissible that the rule of starry decisive should be hard and fast. And i was arguing that he was writing about his view of the living constitution saying that if the constitution was to evolve, that sometimes that meant leaving precedence behind. So all that that quote or that portion was designed to say is that the Supreme Court has never accepted, im not aware of any justice who has, the view that its prima facie ill legit meant to ever overrule precedent. The courtss policy, its doctrine of starry de isis says theres circumstances in which overruling is warranted. Thank you for clarifying that, i appreciate it. Youve also written on methods of contusional interpretation including on the doctrine of originalism. Ill ask you you coauthored a law review article entitled congressional realism and how realists approach and overturn precedent. Article stated that the officeholders that the discretion to decide when the timing is right to challenge a precedent with which he or she disagrees. I know thats particularly focused on congress, but i wanted to ask if you believe the same concept applies to judge us. And in other words, if you believe that an originalist justice on the Supreme Court should buy his or her time until theres an opportunity to overturn a particular precedent . Senator, as you say, that particular article was focused on congress but in the earlier 2013 article in the texas law review that you referredtor, to did talk about judges and how that may play out there. What i emphasized was in addition to the strej of starry de isis theres so many other ek mem nichlz in the law and restrain judges from roaming around and correcting precedence that they may not like or think are wrong, the rule that judges only decide the question presented before them, and so that these and other mechanisms serve to restrain judges and prevent them from reaching out and trying to decide, the time has come and im going to overrule this precedent. So, no, 0 in the contrary, that texas law review article makes clear that these rules that the court has imposed on itself. And i was focusing on the Supreme Court, contribute to stability and restrain due to the judges hand. Very good. Justice larsen, i understand youve also commented on the doctrine of organizalism and i believe that some lines from chief Justice Marshals upon in misdemeanor 1819 almost two centuries ago are relevant to that zug. He wrote that the founders must have intended our constitution, quote, to endure for ages to come and consequently to be adapted to the various crises of human affairs. He continue to say it would be unwise to provide by amud able rules which if for seen at all must have been seen dimly and what can be best provided as they occur. Do you agree with that point that Justice Marshal made in mccullic. Well, certainly as he made the point in mccullic versus maryland, i think he was talk about the constitutions needs to be a constitution that will endure and that can adapt. But it doesnt necessarily mean that i think that judges ought to be imposing their own views rather the constitution obviously can change. We change from blessy versus ferguson to run versus the board of education, if thats what you mean. One other question. I know senator feinstein asked you about your work at the with the executive branch in the Justice Departments office of Legal Counsel so i know she specifically asked about the torture issue, but i want to ask you about your views in general on how judges should consider national Security Matters like the ones before the Justice Department. At that time when you were there, how do you believe court should approach the balance between National Security and civil individual rights . Well, thats an extremely broad question. How should judges balance National Security and civil rights. Yes, its my question. Yeah, im just trying to answer it in a framework. I think that the typically the right framework would be to look at the text of whatever statute congress has passed in the area of either National Security or the area of civil rights to look at the constitution. Obviously there might be a due process challenge to some claim against a statute in the National Security area, to read the precedents that surround that. To listen carefully to the arguments of counsel. To consult with colleagues and clerks, thats how i would approach a case. I dont know that i can do any better in the abstract than to say that i would apply the law faithfully. Thank you. Professor barrett, you can explain for noun experts what the religious test clause is and high its such an important structural feature of the constitution . The religious test clause, as i understand it, prohibits the impoe mitigation sigs of any kind of religious test as a qualification for serving an office. And if we were to start ignoring this part of the contusion, what sort of damage would that present to the republic if people with particular religious views were excluded from public life . Well, i think it could cause all kinds of harm. I mean return colluding infringements of religious freedom. Thank you. I think some of the questioning that youve been subjected to today seems to miss some of these fundamental constitutional protections that we all have. Senator blumenthal. Thank you senator sasse. Justice larsen, and by the way, thank you both for your schmitt commitment to public service. Let me ask you, you are aware, im sure, that you were listed twice on President Trumps potential Supreme Court nominee list. President trump has repeatedly suggested that he has a litmus test for Supreme Court nominees, including whether they are, quote, pro life end quote, and will, quote, automatically, end quote, overturn rowe v. Wade. Do you think that you have passed that litmus test . Senator blumenthal, i dont know how i got on President Trumps list. It was a complete surprise to me. And no one has ever asked me. B my opinion on any particular case. If someone believes ive passed some litmus test, i honestly dont know how they came to that conclusion. I would faithfully uphold the principles and the precedence of the Supreme Court of the United States, including rowe versus wade, k. C. Andtist its progeny. So if you were nominated in court you would vote to uphold rowe v. Wade. I wouldnt want to make any commitment to an office for which i have not been nominated. Is there anything in your record that would justify someone thinking that you would overturn rowe v. Wade . Not that im aware of. Do you think that i its appropriate for the president to have a litmus test of that kind for Supreme Court nominees . I wouldnt purport to comment on how the president of the United States does his job with respect to nominations anymore than i would purport to comment on how you would perform your advice and consent function. Well, youre welcome to comment on my performance, people do it all the time. But probably are reluctant do it in this setting. It seems like the better course. Professor barrett, in a speech that you delivered at notre dame in 2013 entitled rowe at 40, the Supreme Court abortion and the culture wars that followed, you suggested that overturning rowe would have little impact on americans. You said, quote, the day after rowe fell, of course, abortion would be neither legal nor illegal throughout the United States. Instead, the states and congress would be free to ban, protect, or regulate abortion as they saw fit. Do you continue to believe that . Senator, the context of those remarks was addressing the i was addressing the prolife movement. Id been asked a question about protests of rowe versus wade and i was indicating that i thought that that was not that for those students in the audience who were interested in protesting i was simply saying, you know, for you, if thats what youre interested in, you know, i thought that it wasnt a fruitful course, a fruitful way for them to think about it. I wasnt commenting on the impact that rowe would have would you agree with me that overturning rowe, in fact, would have a massive disruptive, hurtful effect on countless women who continue to rely on its protection ation hearing for judicial nominees and the person picked to serve as attorney general. Now, former deputy cia director david cohen talks about the use of sanctions against russia, north korea and venezuela. Other topics include china ease