Chuck Grassley Leads Senate Judiciary Committee Confirmation Hearing For Judicial Nominees

[0:00] Our first panel features Justice Smith, nominated to the U.S. Court of Appeals for the Eighth Circuit. [0:09] On panel two, we'll hear from three nominees to the U.S. District Court, Jeffrey Coleman, Anthony Mativi, and Anthony Powell. [0:25] In a moment, I'll turn to our visitors to introduce these nominations after Senator Durbin gets done speaking. [0:32] But first, I'd like to say a few words. [0:36] This past year, the now acting Attorney General Todd Blanche launched a civil rights fraud initiative. [0:47] The effort uses the False Claims Act to discover federal funds to recover these federal funds from recipients that knowingly violate federal law by engaging in practices that racially discriminate. [1:04] Thanks to the Justice Department initiative, a federal contractor recently agreed to pay $17 million to settle claims brought under the False Claims Act related to its so-called DEI practices. [1:24] As Attorney Blanche rightly quoted, racial discrimination is illegal and government contractors can't evade the law by repackaging it as DEI, end of quote. [1:41] Make no mistake, recipients of federal funds have a basic obligation to adhere to our federal civil rights laws. [1:54] And I'm pleased that the False Claims Act, which I have long ago got into law, is recovering from taxpayer funds and combating illegal discrimination. [2:10] Relevant to today's hearing, I'd also like to bring up the issue that has been repeatedly featured at our nomination hearings. [2:25] Some of my Democrat colleagues have relentlessly attacked nominees for their responses about election results. [2:34] I think a civics lesson is in order to respond to their questioning under Article 2 and the 12th Amendment of our Constitution. [2:47] The Electoral College dictates who wins presidential elections. [2:52] Those electors cast ballots and the vice president certifies their vote count at a joint session of Congress. [3:01] So I'm not asking you to take my word for it, just let me read to you what the 12th Amendment states, quote, [3:11] The people have the greatest number, the person having the greatest number of votes for president shall be president if such number be a majority of the whole number of electors, end of quote. [3:26] When recent judicial nominees have been asked who won the 2020 election, they've correctly stated that President Biden was certified as the winner and served for four years. [3:41] When asked about the 2024 elections, they've correctly acknowledged that President Trump was certified as the winner and is currently in office. [3:52] These answers are correct, both factually and legally. [3:56] For some reason, my Democratic colleagues consider these correct legal answers to be evasive. [4:06] One of them called it a quote-unquote loyalty test. [4:12] But these attacks are misguided. [4:15] Under our constitutional system, whoever is certified as receiving the majority votes from the Electoral College is the winner of the election. [4:24] There's no other way to win an election for president, not accepting this basic principle of our Constitution, by not accepting it. [4:39] Some of my Democratic colleagues have followed up with political theater, asking who won the popular vote in these elections. [4:48] Of course, none of the nominees counted ballots. [4:54] They lack any first-hand knowledge of vote counts. [4:57] And why should they? [4:58] The popular vote doesn't determine the president under our Constitution. [5:04] The Electoral College does. [5:06] Still, some of my Democrat colleagues have insulted the nominees for giving legally accurate answers by describing them as, quote, monkey or puppets, end of quote. [5:21] This is an unfair and beneath our office. [5:24] The nominees' answer demonstrates that they are constitutionalists, and that's exactly what we should want. [5:34] Judges who uphold the Constitution and not bend it for political attacks or insults. [5:44] Today, we have four judicial nominees who are cut from the same cloth. [5:49] They defended the Constitution throughout their careers, and I look forward to hearing from them today. [5:56] Senator Durbin. [5:59] Thank you, Mr. Chairman. [6:01] Congratulations to the nominees. [6:04] Today, we'll hear from four nominees, including Justin Smith, who's been nominated to the U.S. Court of Appeals in the Eighth Circuit. [6:10] Mr. Smith, whom we'll hear from today, is the second personal attorney of President Trump, nominated to the circuit court following Emil Boves' nomination last year. [6:21] Having proven his loyalty to the president, Mr. Smith is to be rewarded with a lifetime appointment to the federal bench. [6:30] In fact, Mr. Smith is so loyal to the president, he continues to represent him in two pending cases before the courts. [6:39] Mr. Smith represents President Trump in two lawsuits filed by Jean Carroll. [6:44] This is not a case where the legal system has been weaponized against President Trump, as he and his MAGA allies have repeatedly claimed. [6:52] Rather, Ms. Carroll is one of dozens of women who bravely come forward to credibly accuse the president of sexual assault. [7:00] Of course, Mr. Trump infamously bragged about his assault of women. [7:04] I won't read the quote to you. [7:06] You've heard it many times. [7:08] In Ms. Carroll's lawsuit, juries found President Trump liable for sexual abuse and defamation, awarding her nearly $90 million in damages. [7:16] While all litigants deserve a zealous advocate, Mr. Smith has gone further than most expected in a court filing when he baselessly dismissed Ms. Carroll's allegations as, quote, [7:30] facially implausible and, quote, politically motivated. [7:35] He even submitted information to the U.S. Supreme Court claiming her allocations are, quote, [7:40] a story that precisely matches the plot line from an episode of one of her admittedly favorite TV shows, Law & Order. [7:49] It is worth noting there is a Supreme Court rule requiring attorneys to present accurate information. [7:54] I'd like to address the issue which the chairman has raised as to whether or not the nominees for lifetime appointments to the federal bench [8:03] should be asked an unfair question like, who won the 2020 election? [8:09] Is that an unfair question? [8:11] I think it's an obvious question. [8:12] What would be the answer for the 2024 election? [8:16] What we've seen is evasion. [8:18] They try to explain how the Electoral College works. [8:21] The popular vote was won, not by Donald Trump, but by Joe Biden in that election, 2020. [8:28] That's a fact. [8:29] And we certified that fact on the floor of the United States Senate the day that there was an invasion of, [8:35] insurrectionists, and demonstrators. [8:38] We knew they were there, but we knew our duty, and the vice president let us in that effort as he should have. [8:44] Mr. Smith is also an election denier. [8:47] In 2020, he signed an amicus brief in Texas versus Pennsylvania, seeking to overturn the results of the election. [8:54] President Trump continues to deny that he lost the 2020 election, and he has bragged about interfering in this year's midterm elections. [9:01] A key component of his plan is instilling a loyalist at the Justice Department and on the bench. [9:08] Mr. Smith has extensive right-wing political affiliation and ties to dark money entities. [9:14] One example. [9:15] In 2023, Mr. Smith served as the treasurer for the Missouri chapter of the Club for Growth, a conservative super PAC. [9:22] What a coincidence it is, then, that the organization spent thousands of dollars on consulting, provided by Provenco LLC, an entity that Mr. Smith owned. [9:34] This apparent self-dealing raises serious ethical questions, not the first in this administration. [9:39] I yield. [9:39] Thank you, Senator Durbin. [9:45] Now we'll have our colleagues introduce the nominees. [9:51] I'll do it in this order. [9:53] Senator Moran, Senator Marshall, former Senator Roberts, Senator Hawley, and Senator Schmidt. [10:02] So proceed, Senator Moran. [10:05] Chairman Grassley, Vice Chairman, Ranking Member Durbin, thank you for the opportunity to appear before you today. [10:11] Thank you for the first time in my life to be able to appear as a predecessor and before Senator Roberts speaks. [10:19] I'm grateful for that opportunity. [10:22] Mr. Chairman, I take my responsibilities seriously when seeking nominees to serve on the federal bench. [10:29] One of the most significant privileges we all have is to support, to hold, to bring forth individuals of principle and professional expertise [10:39] and experience and temperament to administer equal justice under the law. [10:46] Upon confirmation of these three nominations, working with both Senator Roberts and Senator Marshall, [10:53] if these three nominations that we're hearing, that your committee is hearing this morning, are confirmed, [10:59] Kansas has six federal district judges. [11:01] There are three in office and three vacancies. [11:05] Those six will now be filled with these three nominees, and I've been involved in the confirmation and nomination [11:12] during my time as a U.S. senator of all six, including now some, additionally, who serve with senior status. [11:22] And Senator Marshall and I have been involved with two members of the Tenth Circuit, our state circuit court. [11:30] I'm here to introduce three fellow Kansans, three fellow Kansans that I know well. [11:37] Tony Mativi, Anthony Powell, and Jeffrey Coleman, all who have been nominated by the president [11:42] to serve as United States District Judges for the District of Kansas. [11:46] I offer my strong support for each of them. [11:49] Tony Mativi. [11:51] Mr. Mativi, for more than 20 years, served as a federal prosecutor, [11:55] handling complex cases involving drug trafficking, violent crime, and terrorism. [11:59] Following his time in federal service, Mr. Mativi was confirmed as the director [12:04] of the Kansas Bureau of Investigation, where he has provided strong leadership [12:09] on public safety and law enforcement priorities. [12:12] I've had the opportunity to work with Mr. Mativi extensively throughout his time as director, [12:17] and I appreciate his dedication to serving Kansans and improving our justice system. [12:23] His experience in the courtroom and in law enforcement leadership positions [12:26] bode well for his service on the federal bench. [12:29] I also want to recognize that Mr. Mativi is joined today by his wife Mary and two of their children, [12:36] Hope, a graduate student at Kansas State University, and Matthew, who currently is serving our country. [12:43] We are grateful for their support and for the sacrifices their family make in service. [12:50] Anthony J. Powell. [12:53] Judge Powell is joined today by his wife Betty. [12:56] Judge Powell is a graduate of George Washington University and Washburn University School of Law. [13:01] During his time in law school, he served as an associate editor of the Washburn Law Journal [13:05] and participated in moot court board, demonstrated early an academic distinction and engagement [13:11] in the study of law. [13:12] Early in his career, Judge Powell gained valuable experience in public service [13:16] and the legislative process through roles in Washington, D.C., [13:20] including an internship with Kansas Senator Bob Dole [13:23] and its legislative director for Representative William Broomfield. [13:27] He later entered private practice at the Wichita, Kansas law firm of Martin and Churchill, [13:33] and there he built a strong foundation in the law. [13:37] Judge Powell, in 1995, was elected to the Kansas House of Representatives, [13:42] where he served for eight years, including time as the majority whip, [13:46] and served on key and important legislative committees. [13:52] After that legislative service, Judge Powell served as a judge [13:55] on the 18th Judicial District in Sedgwick County, Kansas, [13:59] from 2002 until his appointment to the Kansas Court of Appeals in 2013. [14:06] After retiring from the Court of Appeals in 2022, [14:09] he was named Kansas Solicitor General, [14:12] continuing his service to the state in a senior legal role. [14:16] Judge Powell's career reflects decades, decades of public service [14:20] across all three branches of government. [14:22] His experience, judgment, and commitment to the rule of law [14:25] have prepared him well for responsibilities on the federal bench. [14:30] Jeffrey M. Kuhlman. [14:32] Mr. Kuhlman is a native of western Kansas, [14:34] having grown up in Ness City, population 1,329. [14:40] Mr. Chairman and Ranking Member Durbin, [14:43] you and most members, if not all members, [14:46] know about rural parts of our state. [14:48] In our efforts to find qualified judicial candidates, [14:53] I had a specific goal of trying to make certain [14:56] that we found candidates for nomination [15:00] that come from small places across our state. [15:04] And I'm pleased that we have a candidate [15:06] who not only comes from small places, [15:09] but who has the capability of serving as a federal judge. [15:13] In part, perhaps that's nostalgia [15:14] as a small-town Kansas kid myself, [15:17] along with Senator Roberts and Senator Marshall, [15:19] but it also is important as our state, like yours, [15:24] looks for young men and women [15:26] to serve the legal profession [15:27] in rural places across our state. [15:30] I want everyone in law school [15:32] and the potential lawyers to know [15:34] that they can work in their hometowns, [15:37] they can serve people in rural Kansas and rural America, [15:39] and have a bright future in the law. [15:44] Jeffrey Coleman earned his bachelor's degree in history [15:46] from Kansas State University [15:47] before going on to receive his law degree, [15:51] cum laude, from the Anton Scalia Law School [15:55] at George Mason University. [15:57] He earned that degree in 2015. [16:00] After law school, Mr. Coleman returned to Kansas [16:02] and was selected to serve a two-year clerkship [16:04] for United States District Judge, [16:07] then Chief Judge, Eric F. Melgren. [16:10] In that role, he gained valuable, hands-on experience [16:12] across all phases of federal litigation. [16:16] Jeffrey then entered private practice [16:18] as a litigation associate at a Wichita firm, [16:20] Hinkle, the Hinkle Law Firm. [16:23] And today, Mr. Coleman is a partner [16:26] at a six-person law firm, Watkins Calcara, [16:30] in Great Bend, Kansas, [16:31] where his practice focuses on civil litigation, [16:34] including municipal law, constitutional matters, [16:37] commercial disputes, and personal injury cases. [16:40] He was brought to my attention by his colleague in that firm, [16:43] my longtime friend, Dick Friedemann, [16:46] who spoke to me of his character, [16:48] professionalism, and work ethic. [16:50] Mr. Coleman and his wife, Lauren, [16:52] are raising their five young children, [16:55] Elsie, Madeline, Lucy, Oliver, Josephine, [16:58] in Great Bend. [17:00] Incidentally, Mr. Chairman and Ranking Member, [17:02] Great Bend is the hometown of Senator Marshall, [17:05] and the town in which I was born. [17:08] Again, small-town Kansas. [17:11] Mr. Coleman has demonstrated a strong commitment [17:13] to the rule of law, a deep respect for the Constitution, [17:16] and a clear dedication to serving the people of Kansas. [17:18] His experience both inside and outside the courtroom [17:21] has prepared him well [17:22] for responsibilities of the federal bench. [17:25] I'm confident in his professional competence [17:27] and his judicial temperament. [17:29] I'm pleased to support these nominees, [17:30] each of whom bring breadth of experience, [17:32] from federal prosecution and law enforcement [17:34] to leadership and judicial service [17:36] to private practice [17:37] to federal clerkships [17:38] that reflect the strength [17:40] of the Kansas legal community. [17:42] I look forward, [17:44] I appreciate the treatment [17:45] in which this committee, [17:47] Republicans and Democrats, [17:48] have treated the nominees [17:50] that I brought forward [17:51] to your attention in the past, [17:53] and I look forward to the committee's consideration [17:55] and hope each receives a fair review [17:57] and a timely confirmation. [17:59] Thank you, Senator Moran. [18:00] Now, Senator Marshall. [18:02] Well, thank you, Chairman Grassley [18:03] and ranking member Durbin. [18:05] I want to start by thanking [18:06] my senior senator, Jerry Moran, [18:08] and his team for your strong partnership [18:10] in advancing these nominations. [18:12] Our staffs have never worked harder [18:14] or more efficiently [18:15] on any project that we've done, [18:17] and I certainly want to compliment [18:18] our state staff as well. [18:20] It was quite a challenge [18:21] to narrow this down [18:22] to just three people. [18:23] I also want to acknowledge [18:25] Senator Pat Roberts. [18:27] Senator Roberts was either [18:28] my congressman [18:29] or one of my U.S. senators [18:31] for my entire adult life, [18:33] and I'm proud to hold the seat [18:36] that he once held [18:37] and appreciate his tireless fight [18:39] for the people of Kansas. [18:42] I want to thank President Trump [18:43] for nominating three outstanding Kansans. [18:46] It's an honor to join you today [18:48] in introducing them to this committee. [18:51] I also want to take a moment [18:52] and recognize Judges Eric Milgren, [18:55] back home, [18:55] and Daniel Crabtree [18:56] and Julie Robinson [18:58] for their dedicated service [18:59] to our state [19:00] as they transition to senior status. [19:03] And in particular, [19:04] I want to give a special shout-out [19:05] to my friend and mentor, [19:07] Judge Milgren. [19:08] His career is a powerful example [19:09] for these nominees. [19:12] And I have to also add [19:13] that nominee Jeff Kuhlman [19:15] had the privilege of clerking [19:16] directly for Judge Milgren [19:18] for two years after law school. [19:22] The federal judiciary [19:23] is one of the foundational pillars [19:24] of our constitutional system. [19:27] As we continue the great experiment [19:28] of this republic, [19:29] the system of checks and balances [19:31] between the three branches [19:33] of government depends [19:34] on getting this right. [19:35] The Senate's role [19:36] in providing advice and consent, [19:39] ensuring we seat the right individuals [19:40] in these lifetime positions. [19:43] This is one of the most consequential responsibilities [19:45] of a United States senator. [19:48] Courts are where the law meets real life [19:51] for real families, [19:53] real communities, [19:54] and real Kansans [19:55] who have something important [19:56] on the line. [19:57] They deserve judges [19:58] who understand Kansas values [20:00] and culture [20:01] who will call balls and strikes [20:03] fairly and impartially. [20:06] First, I'd like to speak [20:07] to Mr. Jeff Kuhlman, [20:09] who, as Senator Moran mentioned, [20:11] grew up in a small [20:12] western Kansas town [20:14] of Ness City, [20:15] population around 1,300. [20:17] I think it's important [20:19] that we recognize the diversity [20:20] in these candidates. [20:22] He earned his undergraduate degree [20:24] at the Kansas State University [20:27] before attending law school [20:29] in Washington, D.C. [20:31] Yet he and his wife, Lauren, [20:34] whose brother I delivered, [20:36] made a very deliberate decision [20:39] to go back home, [20:40] to be with family, [20:41] to raise their family [20:42] with their family as well. [20:46] Today, he's a respected attorney [20:48] to a law firm I know very well. [20:51] in my hometown of Great Bend, [20:52] a community where I practiced medicine [20:55] for 25 years. [20:57] Jeff knows rule [20:58] in western Kansas inside and out. [21:01] What stands out most about Jeff [21:02] is his deep sense of duty [21:04] and character. [21:05] He chose to serve [21:06] the very community [21:07] that raised him, [21:08] representing local governments, [21:09] cities, [21:10] and everyday Kansans [21:11] with integrity [21:12] and common sense judgment. [21:13] He embodies the Kansas values [21:15] of hard work, humility, [21:17] and commitment to his roots. [21:18] I'm confident he'll bring [21:19] that same grounded perspective [21:21] and fairness [21:21] to the federal bench [21:23] for decades to come. [21:26] Next, I want to speak [21:27] to Tony Powell. [21:29] He's devoted his career [21:30] to public service in Kansas, [21:32] beginning with four terms [21:33] in the Kansas House of Representatives [21:34] where he rose to majority whip. [21:36] He served as Sedgwick County [21:38] District Judge [21:38] and later on [21:40] the Kansas Court of Appeals [21:41] where he thoughtfully [21:42] considered thousands of cases. [21:44] He recently [21:45] is the Kansas Solicitor General. [21:48] He's argued on behalf [21:49] of the people of Kansas [21:50] in significant matters. [21:52] Few nominees [21:53] have served Kansans [21:54] at every level [21:55] of the legal [21:56] and legislative system. [21:58] Tony is a person [21:59] of steady character [21:59] and principled judgment. [22:02] His decades of service [22:03] reflect a deep respect [22:04] for the rule of law, [22:06] for due process, [22:07] and the institutions [22:08] that protect Kansans [22:09] and protect Kansans. [22:10] He brings the kind [22:11] of balanced experience [22:13] perspective we need [22:14] on the federal district court. [22:16] And finally, [22:17] I want to introduce [22:18] my friend Tony Mativi. [22:20] Tony earned his law degree [22:22] from Washburn University [22:24] in Topeka, Kansas [22:25] and spent his career [22:26] in the challenging work [22:27] of protecting public safety [22:29] and upholding justice. [22:31] He began as an assistant [22:32] district attorney [22:33] in Shawnee County, [22:35] which is Topeka. [22:36] He served in the Kansas [22:37] Attorney General's office [22:38] and then spent more than 20 years [22:40] as a federal prosecutor. [22:41] Handling complex cases [22:43] involving drug trafficking, [22:44] violent crimes, [22:45] organized crime, [22:46] money laundering, [22:47] and terrorism. [22:48] Among his most notable work, [22:50] he led the Capitol prosecution [22:52] of the Al-Qaeda operative [22:54] who masterminded the bombing [22:56] of the USS Cole. [22:59] 17 American sailors [23:01] who deserved justice [23:02] and got it because of [23:04] Tony's relentless commitment. [23:07] He also traveled to Iraq [23:08] to advise on war crime tribunals [23:11] and prosecuted individuals [23:12] who plotted attacks [23:13] against targets in Kansas, [23:15] including the Wichita Airport [23:16] and Fort Riley. [23:18] Most recently, [23:19] as director of the Kansas Bureau [23:20] of Investigation, [23:21] Tony showed proactive leadership, [23:23] sounding the alarm early [23:24] on fentanyl, [23:26] standing up the joint [23:27] fentanyl impact team [23:28] and creating child victims units [23:30] to better protect [23:31] our most vulnerable. [23:33] What defines Tony [23:33] is his relentless integrity, [23:35] courage, and commitment [23:36] to keeping Kansans safe. [23:38] He has dedicated his life [23:39] to the rule of law [23:40] and public service [23:41] with honor and without failure. [23:45] In closing, [23:45] I'm proud of the diverse backgrounds [23:47] and experiences [23:47] these three nominees bring. [23:49] Their records are exceptional, [23:51] but what matters most to me [23:52] is their character. [23:54] These are good men, [23:55] men of high integrity [23:56] who share the core values [23:57] of fairness, hard work, [23:59] respect for the law, [24:00] and service to others. [24:01] They will ensure due process, [24:03] protect individual rights [24:04] and liberties, [24:04] and deliver impartial justice [24:06] to the people they serve. [24:08] Senator Moran and I [24:09] work carefully [24:09] through a strong list of candidates [24:11] and these three stood out. [24:14] Individuals I'm confident [24:15] will serve the District of Kansas [24:17] with distinction [24:18] for decades to come. [24:20] Thank you. [24:21] Thank you, Senator Marshall. [24:22] Now Senator Roberts, [24:24] I remember how famous you are [24:26] for being the author [24:27] of the freedom to farm legislation [24:30] for 50 years before 1995. [24:37] Bureaucrats told us [24:38] how much corn or beans [24:39] and cotton and wheat [24:42] we could raise [24:43] and now because of your leadership, [24:46] farmers, family farmers in Iowa [24:49] can plant whatever they want to plant. [24:51] So thank you. [24:59] I thank the distinguished chairman. [25:04] It's good to be back here [25:06] on Capitol Hill in the Senate. [25:09] This is my first appearance [25:12] in about five or six years [25:14] since I retired. [25:15] I can't think of two people [25:17] that I would rather see [25:19] other than the chairman [25:21] and the distinguished ranking member. [25:24] We have a history with, [25:26] or I have a history, [25:28] a privilege really [25:29] of working with both gentlemen. [25:32] And it's good to see [25:33] Senator Hawley here [25:34] and also Senator Kennedy, [25:38] which means we are certainly [25:40] on television, [25:42] at least somewhere. [25:43] and so my job is pretty simple [25:49] and it's just to summarize [25:50] as best I can [25:51] this unique candidate. [25:57] Tony Mativi is a household word [26:01] almost in Kansas [26:02] and I'm going to read something [26:04] at the first of his resume [26:05] which goes on and on and on. [26:07] And he presently serves [26:12] as the 13th director [26:14] of the KBI [26:15] at the Kansas Bureau [26:17] of Investigation. [26:19] And that agency [26:21] is a very proud one. [26:24] It's responsible [26:24] for about 400 employees. [26:28] Has an annual operating budget [26:30] with about $73 million, [26:34] 88,000 square miles. [26:37] He was nominated [26:39] on February 9, [26:41] back in 2023. [26:44] And the reason I am [26:45] going into all of this [26:46] is that he was approved [26:48] by the Kansas Senate [26:49] 39 to 0. [26:53] My fellow colleagues, [26:55] that doesn't happen. [26:57] I mean, that just doesn't happen. [26:59] 39 to 0. [27:01] I might compare it [27:02] to the U.S. Senate [27:03] but it indicates [27:05] the tremendous support [27:06] that Tony has [27:08] in Kansas [27:09] for many different reasons. [27:12] But he not only is qualified [27:15] but as a person. [27:17] I think everybody [27:19] that knows Tony [27:20] says nothing but good things [27:22] and all those things [27:24] are absolutely true. [27:27] I found out, [27:29] and here's what Tony's about, [27:30] I found out [27:31] when I went to Iraq [27:32] and I had the privilege [27:35] of being chairman [27:36] of the Senate Intelligence Committee [27:38] at that time. [27:40] We were checking out [27:41] our intelligence [27:43] and how it was used [27:44] and was it up to par [27:45] and things of this nature. [27:48] And I discovered [27:49] in this material here [27:50] with regards to Tony [27:54] that he was there [27:55] at the same time. [27:57] I did not know that. [27:58] But the fact that he was there, [28:00] he was giving advice [28:02] and helping to lead the people [28:05] and helping to lead the people [28:05] who were conducting [28:07] an investigation [28:08] on all of the people [28:10] responsible for war crimes [28:12] under the Saddam Hussein regime. [28:16] That pretty well tells it [28:18] about Tony. [28:20] And he didn't have to be there [28:22] by any means, [28:23] but he wanted to be there. [28:25] And I'm going to stop [28:27] in terms of telling stories [28:29] about Tony at that point. [28:30] And it just indicates [28:32] the kind of person [28:33] that he is. [28:35] I don't know [28:37] if this Senate [28:39] can consider Tony [28:40] with a whatever. [28:43] Well, wait a minute. [28:44] That's not possible [28:45] in the U.S. Senate. [28:46] Obviously, we have Rand Paul [28:48] and I know Rand would like [28:50] to have a no vote. [28:51] That would be the only one [28:53] that I would say [28:53] that would ever vote [28:54] against Tony at TV. [28:57] And I'll talk to Rand [28:59] and see if we can get [28:59] that squared away. [29:00] Mr. Chairman, [29:01] I'm going to stop [29:01] at that point. [29:03] I feel that I have [29:05] a privilege here [29:06] of appearing on behalf [29:11] of a Kansan [29:12] that is unique. [29:14] He is not only qualified, [29:16] he is held [29:18] in the highest esteem [29:20] of the people [29:20] who have had the privilege [29:21] of knowing him. [29:22] I thank both senators [29:24] for being, [29:26] for the privilege [29:27] of being here. [29:29] And I'll close [29:30] at that point. [29:30] Thank you, Senator Roberts. [29:32] Now, Senator Hawley. [29:35] Thank you very much, [29:36] Mr. Chairman. [29:37] I want to say [29:38] welcome and congratulations [29:40] to Justin Smith, [29:41] the President's nominee [29:42] for the Eighth Circuit [29:42] Court of Appeals. [29:43] It's a great privilege [29:44] to say a word, [29:45] an introduction for Justin. [29:47] I want to start [29:48] by pointing out [29:48] that this is going [29:49] to be the sixth, [29:51] sixth federal judge [29:53] that Donald Trump [29:54] has appointed [29:54] to the bench [29:55] in this Congress alone [29:57] in the state of Missouri, [29:59] which is something [30:00] that we're very proud of. [30:00] I want to thank [30:01] the President [30:01] for his focus [30:02] on the state [30:03] and to say [30:04] to my partner, [30:05] Senator Schmidt, [30:06] that I think six [30:07] is a pretty good number, [30:08] Eric. [30:08] I think we're doing pretty well. [30:10] And we've got [30:11] a tremendous candidate [30:12] before us today. [30:13] I also want to say [30:13] thank you [30:14] to Judge Dwayne Benton, [30:15] whose seat, [30:16] Lord willing, [30:17] Justin will soon fill. [30:18] Judge Benton [30:19] has for years [30:20] been the consummate judge. [30:23] He has been [30:24] a man of excellence. [30:26] He has been [30:26] a man of the utmost integrity. [30:28] He is the most compassionate, [30:30] kind-hearted man [30:31] you'll ever meet. [30:32] The standard [30:33] that he has set [30:34] is truly exceptional. [30:35] I know Justin [30:36] will do absolutely [30:38] outstanding in filling it. [30:39] Let me just say [30:39] a brief word about Justin. [30:41] I know Senator Schmidt [30:41] will want to say more. [30:43] Justin grew up [30:44] in New Bloomfield, [30:45] which is a small town [30:46] in Calloway County, [30:48] much like the town [30:49] that I grew up in, [30:50] not too far from there, [30:51] the kind of place [30:52] that still believes [30:52] in hard work [30:53] and plain dealing [30:54] and the rule of law. [30:55] Justin went on [30:56] to the University of Missouri [30:57] for his undergraduate degree. [30:59] He stayed to earn [31:00] his law degree [31:01] at Missou Law, [31:02] where he graduated [31:03] as a member [31:04] of the Order of the Coif, [31:05] which is the law school [31:05] equivalent of graduating [31:07] at the very top [31:07] of your class. [31:09] Justin then went on [31:10] to join an organization [31:12] that I've got [31:13] great fondness for, [31:14] the Missouri Attorney General's Office. [31:16] He and I both [31:17] had a stint of duty there, [31:19] a tour of duty. [31:20] I wanted to say, [31:21] and I know Senator Schmidt [31:22] will say more about this, [31:23] that Justin's tenure [31:24] in the Missouri Attorney General's Office [31:26] was notable, [31:27] not least because [31:28] my colleague Senator Schmidt, [31:30] when he was Attorney General [31:31] of the state, [31:32] decided to make Justin [31:32] both his first assistant [31:34] and chief of staff. [31:35] And those aren't just credentials [31:36] on a piece of paper. [31:37] That recognizes, [31:39] that reflects, rather, [31:41] the judgment [31:41] of the Attorney General [31:43] that this is someone [31:44] of the utmost, [31:45] the highest caliber, [31:46] the utmost legal credentials, [31:48] the greatest ability [31:49] to handle [31:50] the state's most important cases [31:51] in court. [31:53] And the fact that [31:54] Senator Schmidt selected [31:55] Justin for that position, [31:56] I think speaks volumes [31:57] and I know Senator Schmidt [31:58] will speak to that [31:58] in just a moment. [32:00] From that office, [32:01] Justin went on to work [32:01] with our current [32:02] Solicitor General, [32:03] the Solicitor General [32:04] of the United States, [32:05] when he was at [32:06] the James Otis Law Group [32:07] where Justin continued [32:08] to take on cases [32:09] of genuine national significance, [32:11] including before [32:11] the United States Supreme Court. [32:13] He has spent his career [32:14] doing the hard work [32:15] of constitutional litigation, [32:17] not just writing about it, [32:18] not commenting on it, [32:19] but actually litigating it [32:21] in real courts [32:21] for real people [32:23] that have real consequences. [32:25] It is my view [32:26] the Eighth Circuit [32:27] is one of the most important [32:27] appellate courts [32:28] in the country. [32:29] It covers eight states, [32:30] including, of course, [32:30] Missouri. [32:31] Its decisions shape law [32:33] for millions of Americans. [32:34] This vacancy [32:35] is a very consequential one [32:36] and I want to thank [32:37] the President [32:38] for nominating someone [32:40] who I think will be [32:40] an excellent, excellent judge [32:43] to fill this vacancy, [32:45] to fill the shoes [32:46] of Dwayne Benton [32:46] and to serve the people [32:48] of Missouri and the nation. [32:49] Thank you, Mr. Chairman. [32:50] Before Senator Schmidt, [32:52] you folks can stay [32:53] as long as you want to, [32:54] but we don't ask questions [32:56] of senators, [32:57] so if you want to go, [32:58] feel free to go. [33:00] Senator Schmidt. [33:00] Thank you, Mr. Chairman. [33:02] I also want to thank [33:02] President Trump [33:03] for nominating Justin Smith [33:05] to this really important position. [33:07] And as Senator Hawley mentioned, [33:09] I think Missouri [33:09] is really leading the way [33:11] with not just the numbers, [33:13] but the quality of candidates [33:14] that have been put forth [33:15] to serve in the Article III branch. [33:19] Mr. Chairman, [33:19] Ranking Member [33:20] and Members of the Committee, [33:21] thank you for holding this hearing [33:22] and thank you [33:23] for the consideration [33:24] of Justin Smith. [33:25] It's a real privilege [33:26] for me to introduce [33:27] Justin Smith, [33:29] President Trump's nominee [33:30] to serve on the U.S. Court of Appeals [33:31] for the Eighth Circuit. [33:32] This introduction [33:33] is very personal for me [33:35] because I had the opportunity [33:37] to work with Justin, [33:38] not just in one role, [33:39] but in multiple chapters [33:40] of public service. [33:42] He was a key member [33:43] of my team [33:44] in the Missouri Attorney General's Office [33:45] when I brought him over [33:48] to serve with me [33:48] when I became Attorney General [33:50] where he served [33:51] as my top advisor [33:52] and held senior leadership positions, [33:54] including chief of staff [33:55] and first assistant. [33:57] And after I came to the Senate, [33:58] I trusted him enough [33:59] to bring him here [34:00] as a senior advisor as well. [34:02] I've seen him work up close, [34:04] day in and day out, [34:05] and I can say it very plainly, [34:07] Justin Smith is one [34:08] of the finest lawyers [34:08] I've ever worked with [34:09] in my whole life. [34:10] A lot of people [34:12] who appear before this committee [34:13] have impressive resumes [34:14] on paper, [34:16] and Justin clearly does. [34:17] He graduated magna cum laude [34:19] from the University of Missouri [34:20] School of Law, [34:21] practiced at a major law firm, [34:22] served at the highest levels [34:23] of state government, [34:25] and has now built a career [34:26] that spans private practice, [34:27] government service, [34:28] trial litigation, [34:29] appellate litigation, [34:30] constitutional law, [34:31] and public policy. [34:33] This is not someone [34:34] being nominated [34:35] based on theory [34:36] or pedigree alone. [34:38] He has done the work. [34:39] He has been tested, [34:40] and he has excelled. [34:42] He also brings something else [34:44] that matters a great deal [34:45] for a judge. [34:46] Breath. [34:47] Justin has seen the law [34:49] from multiple angles. [34:50] He's practiced [34:51] in private litigation. [34:52] He's served [34:53] in the governor's office. [34:54] He's served as general counsel [34:55] for the Missouri Department [34:57] of Agriculture. [34:58] He helped lead [34:58] a very active [34:59] state attorney general's office. [35:01] He's been a senior advisor [35:02] in the United States Senate. [35:03] And in each one of those roles, [35:05] he's built a reputation [35:07] for being prepared, [35:08] careful, [35:09] and serious [35:10] about getting it right. [35:12] On a personal level, [35:13] Justin's the kind of person [35:14] you want around [35:15] when the stakes are high. [35:17] He is calm. [35:18] He is thoughtful. [35:19] He does not posture. [35:21] He does not cut corners. [35:23] He listens carefully. [35:25] He thinks rigorously, [35:27] and he speaks with precision. [35:29] In public life, [35:30] where ego and impulse [35:31] can too often get in the way, [35:33] Justin has the kind of maturity [35:35] and self-command [35:36] that gives you confidence. [35:38] I trusted his counsel [35:39] because he earned that trust [35:40] over and over again. [35:42] He's also deeply rooted [35:44] in Missouri. [35:44] He studied here, [35:45] built his career here, [35:47] and served the people [35:48] of our state with distinction. [35:49] He understands our part [35:50] of the country, [35:51] our legal tradition, [35:53] and the proper role [35:54] of a judge [35:54] within our constitutional system. [35:57] He knows that the job [35:58] is not to invent law, [36:00] not to chase political fashion, [36:02] not to impose personal will [36:04] from the bench. [36:05] The job is to interpret [36:07] the law faithfully, [36:09] apply it honestly, [36:09] and respect the limits [36:11] of judicial power. [36:12] That is exactly the kind of judge [36:14] Justin Smith will be. [36:15] So for me, [36:16] this is not just an introduction. [36:18] It's a strong personal endorsement [36:20] from someone who I've relied on [36:23] time and time again [36:24] in his judgment. [36:26] I've watched his performance [36:27] and seen his character firsthand. [36:31] He has the intellect for the job, [36:32] the experience for the job, [36:34] the temperament for the job. [36:35] I'm proud to support [36:36] his nomination [36:37] and urge the committee [36:38] to support that nomination as well. [36:40] Thank you, Mr. Chairman. [36:41] Yeah, thank you. [36:42] Would Mr. Smith [36:42] come to the table, please? [36:44] And before you sit down, [36:46] would you, [36:46] I'd like to administer an oath. [36:50] Do you swear [36:52] that the testimony [36:53] you're about to give [36:54] before this committee [36:56] will be the truth, [36:57] the whole truth, [36:58] and nothing but the truth? [36:59] So help you God. [37:02] Thank you very much. [37:03] Now sit down [37:04] and you can give [37:05] your opening statement [37:06] and you can introduce [37:08] any family and friends. [37:10] That's the tradition [37:11] in this committee. [37:14] Thank you, Chairman Grassley [37:23] and Ranking Member Durbin [37:24] for the opportunity [37:24] to be here [37:25] before this incredible [37:27] and prestigious committee today. [37:29] I'd like to start [37:30] by thanking President Trump [37:31] for the honor [37:32] of this nomination [37:33] and thanking my two senators, [37:35] Senator Hawley [37:36] and Senator Schmidt, [37:37] for those kind words [37:38] and for your service [37:39] to the people of Missouri [37:40] and including in the office [37:42] that I was privileged [37:43] to serve in [37:43] in the Attorney General's office. [37:44] So thank you to both of you. [37:46] I am privileged [37:47] and proud to have [37:48] some family and friends [37:50] here with me today [37:50] that I'd like to introduce. [37:52] I'm joined by my wife, Lauren, [37:54] who's directly to my left [37:56] and to your right. [37:57] Lauren and I have been married [37:59] for 14 years [38:00] and she is by far [38:01] my better half [38:02] as she graduated [38:03] near the top [38:04] of her veterinary school. [38:06] She crochets blankets, [38:08] can make just about anything [38:09] with crochet needles [38:10] and she even won a blue ribbon [38:12] at the Missouri State Fair [38:13] for her cookie recipe [38:15] out of her own cookbook [38:17] that she published herself. [38:19] Very proud of my wife, Lauren. [38:21] She and I have been blessed [38:22] with three wonderful children. [38:25] Luke is 10, [38:26] Caleb is 7, [38:28] Alice is 5. [38:29] They are just a joy to have. [38:31] All three of them are artistic. [38:33] Thanks to Senator Kennedy, [38:35] they are actively drawing right now [38:37] and my five-year-old [38:39] even gave me a note [38:41] that I can rely on [38:41] when questioning gets tough today. [38:43] It just says, [38:44] I love you, Dad, [38:45] which I appreciate. [38:46] She just learned to write recently. [38:49] They're also athletic. [38:50] We love playing board games [38:52] and they are just a joy to have. [38:54] They were especially excited [38:55] about today [38:56] because they got to wear [38:58] some fancy clothes [38:59] and fly in an airplane yesterday [39:00] and I think they look terrific. [39:03] My parents, [39:04] Preston and Janice Smith, [39:05] are also here [39:06] along with my sister, Joy. [39:08] I'll never be able [39:09] to thank my parents enough [39:10] for the sacrifices [39:11] that they made for me [39:12] and for the investment [39:13] they've made my entire life [39:16] in helping me become [39:17] who I am today. [39:18] I'm the oldest of five [39:19] and my three brothers, [39:21] Jason, Jonathan, and Joseph, [39:23] are busy working today [39:24] but they're here in spirit [39:25] and yes, [39:26] my parents did like the letter J [39:28] when it came to kid names. [39:30] My in-laws are also here, [39:32] Dale and Rhonda Weininger [39:34] and then my brother-in-law, Nathan. [39:35] I'm very proud [39:37] to have them here [39:38] and I've been blessed [39:39] to have great in-laws [39:40] who've welcomed me [39:41] into the family [39:42] and treated me [39:42] as one of their own [39:43] ever since I entered the picture. [39:45] My other brother-in-law, Landon, [39:47] is watching from home [39:49] and with his family as well. [39:51] I'm very grateful [39:52] to be here today [39:53] and there are too many [39:54] other friends and family [39:55] that are here [39:56] or watching online [39:57] to name them all [39:58] but it is a true honor [40:00] to be before you today [40:01] and I welcome the questions [40:03] that you all have for me. [40:05] Thank you, Mr. Chairman. [40:06] Okay. [40:07] We'll have five minutes. [40:09] We'll have five-minute rounds [40:11] for every member. [40:16] Before I ask questions, [40:18] after I'm done [40:18] with my questions, [40:20] Senator Schmidt, [40:21] I understand [40:22] you'll take over for me [40:24] while I go to the Finance Committee [40:26] or for the rest of the hearing. [40:30] Okay, thank you. [40:32] Mr. Smith, congratulations. [40:35] First of all, [40:36] during your career, [40:38] you've worked with [40:38] some of the country's [40:39] most elite attorneys [40:41] like Solicitor General John Sowers [40:45] and my colleague [40:47] on this committee, [40:48] Senator Schmidt. [40:50] For those two [40:51] or any other examples [40:53] you want to give, [40:54] what did you learn [40:55] from the attorneys [40:56] you worked with [40:57] and how has working with them [41:00] shaped your view of the law [41:01] with the emphasis [41:02] upon shaping [41:04] the view of the law? [41:06] I have worked with [41:09] some elite attorneys [41:10] throughout my career. [41:11] I've been very privileged [41:12] to learn from some [41:13] very fine people. [41:15] You mentioned some of them, [41:16] Mr. Chairman. [41:17] Senator Schmidt [41:18] was a terrific attorney [41:19] and a boss to work for [41:20] for the time [41:21] that we had together. [41:23] From him, [41:24] I would say I learned [41:25] about like a true commitment [41:26] to public service [41:27] about doing [41:28] the right thing [41:29] for the right reasons [41:30] every single time, [41:31] having a deep love [41:33] for the country [41:34] and the Constitution [41:35] and allowing that [41:36] to be a rock. [41:38] Senator Schmidt [41:39] is someone [41:39] who has very true values [41:42] that he has day in [41:45] and day out [41:45] and that's something [41:46] I really respect about him. [41:48] The other thing [41:48] that I really respect [41:49] among many things [41:50] from Senator Schmidt [41:51] is just his commitment [41:52] to his family [41:53] and making sure [41:53] they're always a priority [41:54] for him. [41:56] Watching Senator Schmidt [41:57] over the years [41:57] with his son Stephen [41:58] who's such a special person [42:01] who brings so much happiness [42:02] to a bunch of lives [42:03] has always encouraged me [42:05] to be a better husband [42:07] and father. [42:08] Senator Schmidt [42:09] has two wonderful daughters [42:11] and a wife [42:11] and he's actively involved [42:12] in their lives [42:13] and I've just [42:15] have been privileged [42:17] to watch him [42:18] as a great role model. [42:20] You know, [42:20] from Solicitor General Sauer, [42:21] I've been privileged [42:22] to learn from one [42:23] of the smartest lawyers [42:24] that I've ever met. [42:26] General Sauer [42:27] is someone [42:27] who's brilliant [42:28] but hardworking [42:30] who puts in the time [42:31] day in and day out. [42:32] He can have a brief written [42:34] before many people [42:35] even get up [42:36] and roll in. [42:37] He is quite the early bird. [42:39] He's also someone [42:40] who studies so carefully [42:41] and in attention to detail [42:42] from cases dating back [42:44] hundreds of years [42:45] and understanding [42:46] the original public meaning [42:48] of our important [42:50] governing documents. [42:52] Those are some of the things [42:53] that I've learned [42:53] and that I would be [42:54] taking with me [42:55] if I was fortunate enough [42:56] to be confirmed [42:57] by this body. [42:58] Okay. [42:59] Secondly, [43:00] you've worked [43:01] in the Missouri Department [43:03] of Agriculture [43:04] and the Attorney General's office. [43:07] You work to protect [43:08] the rights of farmers [43:09] and their businesses [43:10] and you've also written [43:12] about regulatory landscape, [43:15] how that impacts [43:16] the family farmer. [43:18] How have these experiences [43:19] prepared you [43:21] to serve on the Eighth Circuit [43:23] which has jurisdictions [43:25] over many rural [43:26] and agricultural states [43:28] including my state of Iowa? [43:31] Agriculture is an incredibly [43:32] important issue [43:33] in the Eighth Circuit. [43:34] Mr. Chairman, [43:35] it's something you've championed [43:36] your whole career. [43:37] I think agriculture [43:38] is the top industry [43:39] or next to the top [43:40] in every single state [43:41] in the Eighth Circuit. [43:43] It certainly is in Missouri [43:44] and in your state of Iowa. [43:46] I've been very privileged [43:47] to be able to work [43:48] with some great farmers [43:49] and folks across Missouri. [43:52] You know, [43:52] in those roles, [43:54] they're good, [43:55] hardworking people. [43:56] They are salt of the earth [43:57] and I've been very proud [43:58] to stand up in court [43:59] and defend legislation [44:00] that affected farmers. [44:02] I've been very grateful [44:04] to be able to help ease [44:05] some of that regulatory burden. [44:07] We had a regulation, [44:08] for example, [44:08] in Missouri [44:09] that dealt with [44:10] the training of milk haulers [44:11] and for the longest time [44:12] it required in-person training [44:14] in Jefferson City [44:15] which was very limited [44:16] and we were able [44:18] to make that [44:18] a virtual training [44:19] and something [44:19] that would be [44:20] more accessible [44:21] to people [44:23] if they wanted to get [44:23] into the milk haul-in business. [44:25] You know, [44:26] I'm very grateful [44:26] to have the support [44:27] here today [44:28] of Missouri's leading [44:29] agriculture organizations [44:30] and I'm looking forward, [44:32] I'm fortunate enough [44:33] to be confirmed [44:33] by this body [44:34] to continuing [44:35] those strong relationships [44:36] from a different place. [44:38] My last question is [44:39] you've litigated [44:40] numerous appeals [44:41] at the state [44:42] and federal level [44:43] including the court [44:44] to which you've been nominated. [44:47] You've also advocated [44:48] before the Missouri Supreme Court [44:50] and the U.S. Supreme Court. [44:52] What have you learned [44:53] from your appellate practice [44:55] that will aid [44:56] your review [44:57] of complex cases [44:59] before the Eighth Circuit? [45:02] I have been very privileged [45:03] to work on some important cases [45:04] and with some great attorneys again. [45:07] When the stakes are high, [45:09] I think one of the things [45:10] that I've learned [45:11] is just the importance [45:12] of professionalism, [45:13] treating everyone [45:13] with dignity and respect, [45:15] even in cases [45:16] that have strong emotions [45:18] and making sure [45:19] that everyone [45:21] can still be friends [45:22] and professionals [45:23] at the end of the day. [45:24] Taking the work seriously [45:25] and working hard [45:26] and making sure [45:27] that I've done everything [45:27] I can to give my very best work [45:29] which as Senator Schmidt mentioned [45:31] is something [45:32] that's very important to me. [45:33] To be a zealous advocate [45:34] to do my very best [45:35] and then to trust the court [45:36] to apply the rule of law [45:38] to whatever case [45:39] I brought before them. [45:41] Thank you very much. [45:42] Now Senator Durbin. [45:43] Mr. Smith, welcome. [45:46] Congratulations on the nomination [45:48] and congratulations on your family. [45:51] Beautiful family [45:52] that you have brought [45:52] with you today [45:53] as your support. [45:54] So if our questions [45:55] get tough on this side [45:56] of the table, [45:57] you've got reinforcements [45:58] ready to spring into action, [46:00] I'm sure. [46:01] So let me ask a basic question. [46:03] Will you acknowledge [46:04] that President Trump [46:05] lost the 2020 election [46:06] to Joe Biden? [46:07] I acknowledge [46:09] as Chairman Grassley [46:11] was talking about [46:11] in his opening remarks [46:13] that under Article 2 [46:14] and the 12th Amendment [46:15] that the Electoral College [46:18] cast their votes [46:19] in December of 2020. [46:21] In January of 2021, [46:22] Congress met [46:23] to open and count those votes [46:25] and as a result [46:26] of that process, [46:27] Congress certified [46:28] Joe Biden as the president. [46:30] Who won the popular vote [46:31] in the 2020 presidential election? [46:33] The popular vote [46:34] is not something [46:34] that's mentioned [46:35] in the Constitution. [46:36] It's a basic question. [46:39] If you took an eighth grader [46:40] from Kansas and Missouri [46:42] and Iowa and Illinois [46:45] and said, [46:46] who won the popular vote [46:47] in the 2020 election [46:48] and they submitted [46:50] an explanation [46:51] of the Electoral College, [46:53] you couldn't give them [46:53] a passing grade. [46:54] So let me just ask you, [46:55] as an American citizen [46:57] who I'm sure voted [46:57] in that election, [46:58] who won the popular vote [47:00] in the 2020 election? [47:02] As an American citizen [47:03] and someone who, [47:04] as Senator Schmidt said, [47:05] cares about precision, [47:06] I want to be very clear [47:07] that, you know, [47:07] as a lawyer, [47:08] looking at the Constitution, [47:10] it's an Electoral College [47:11] that matters. [47:12] And that process [47:13] played forth [47:14] in December of 2020 [47:15] and January of 2021. [47:17] At the end of this exercise, [47:19] at some point, [47:20] there is going to be a video, [47:21] I'm sure, [47:22] that will be released, [47:23] which will watch [47:24] the painful explanation [47:25] by every nominee [47:26] from the Trump White House [47:28] for the federal bench [47:29] as to why they couldn't answer [47:31] the basic question [47:32] every single person [47:33] in this room knows [47:34] is true. [47:36] Donald Trump lost [47:37] the election in 2020 [47:38] to Joe Biden. [47:40] He may have regretted it, [47:41] he may have denied it, [47:42] but it's a fact. [47:43] And the reason why [47:44] we continue to engage [47:46] in these political gymnastics [47:47] is a question about [47:49] whether or not [47:49] you can ever say no [47:51] to Donald Trump [47:52] when it comes [47:53] to any future service. [47:55] And that is a basic concern. [47:57] Another concern I have, [47:59] you're very active [48:00] in political organizations. [48:03] In 2023, [48:04] you served as treasurer [48:05] for a political committee [48:06] in the Club for Growth [48:07] Action, Missouri. [48:09] You also were somehow, [48:11] you owned a company [48:12] called Pervenco, [48:13] which did $15,000 [48:15] in general consulting [48:16] with the Club for Growth. [48:18] According to your questionnaire, [48:20] you're currently a board member [48:21] of the Yorktown Fund [48:22] and First Principles Action, [48:25] both of which [48:25] are right-wing organizations [48:27] with connections [48:27] to Leonard Leo. [48:29] Based on public records, [48:31] three groups involved [48:32] in political polling [48:32] and consulting [48:33] are registered [48:34] at your address, [48:36] Remington Research Group, [48:38] Madison McQueen, [48:39] and Armada Strategies. [48:41] By my count, [48:41] that seven different organizations [48:43] that you've had [48:44] some affiliation with [48:45] all have one thing in common. [48:47] They are right-wing organizations. [48:50] What we ask nominees, [48:51] even when Democrats [48:52] are seeking positions like this, [48:54] is there a ghost of a chance [48:56] if you became [48:57] the circuit judge [48:59] that you would have [49:00] any objectivity [49:01] when it comes [49:01] to political questions. [49:02] and what has been found [49:04] in the past [49:05] in this committee [49:05] is that if somebody engaged [49:07] in, quote, [49:08] socialist poetry [49:09] in high school, [49:10] they're disqualified. [49:11] So now we have you [49:12] with at least seven [49:13] right-wing organizations [49:14] where you had [49:15] some affiliation [49:16] or leadership. [49:18] Is there any ghost [49:19] of a chance [49:20] that you could be [49:20] objective in the future? [49:24] Ranking Member Durbin, [49:25] I would be fair [49:26] and impartial [49:27] in any case [49:27] that came before me. [49:28] And let me explain why. [49:31] But first, [49:32] let me just correct [49:32] some of the information [49:34] in your question. [49:35] Respectfully, [49:36] three of those organizations [49:37] that you mentioned, [49:38] I have no affiliation with. [49:40] I know that there are [49:41] some committee staff [49:42] that had some questions. [49:43] There was a clerical error [49:44] filed in one report [49:45] that listed my home address [49:48] for three of those organizations. [49:50] If you were to look [49:51] at the State Ethics Committee, [49:52] those are organizations [49:53] that are based [49:54] in different parts [49:55] of the country, [49:55] Florida, Kansas City, [49:57] and California. [49:57] And they've been reported [49:58] at those addresses [49:59] dozens of times [50:00] in many different states [50:01] into the FEC. [50:02] It was a simple mistake [50:03] on a report [50:04] that I did not review. [50:05] So I want to be clear [50:06] that I have no affiliation [50:07] with any of those groups. [50:09] We will correct the record. [50:10] As to the other organizations [50:11] that you mentioned, [50:13] the one thing about me [50:15] is I've been very grateful [50:17] for opportunities [50:17] to engage [50:19] in our political process [50:20] throughout the course [50:21] of my life. [50:22] It's something my dad [50:23] and I did growing up [50:25] because it was something fun [50:26] as a father and son [50:26] to go out [50:27] and get to meet [50:28] some of our elected officials. [50:30] During college [50:31] and law school [50:31] and through my professional career, [50:32] I've been able [50:33] to be great friends [50:35] with a whole bunch of people [50:36] that don't share [50:37] the same views as me. [50:38] You have letters before you [50:39] from people who are many [50:40] different political parties [50:42] who are strongly supporting me [50:43] because they know [50:44] the type of person [50:44] that I am. [50:46] Some of the letters, [50:47] I think there's one [50:48] from the dean [50:49] of the University of Missouri Law School. [50:50] He even notes in the letter [50:51] that he and I don't agree [50:52] on everything, [50:53] but he still strongly supported me [50:54] because of the character [50:55] and the type of person [50:56] that I am. [50:57] And in every case [50:58] that I've been involved in, [50:59] some of which do have [51:00] some political issues, [51:02] I've depended on judges [51:03] to set aside their personal views [51:06] and treat my case fairly [51:07] and impartially [51:08] to apply the law [51:09] and the facts [51:10] to the case [51:10] that I've brought before them [51:12] and to do so without regard [51:13] to partisan affiliation. [51:15] And that's the type of judge [51:16] that I would strive to be, [51:17] to set aside those personal views [51:18] and to apply the law [51:21] and the facts [51:22] because that would be my role [51:23] as a judge, [51:24] not as a partisan [51:25] or as an advocate, [51:25] but as a judge [51:26] where any personal views [51:28] I have [51:28] would no longer be relevant. [51:30] Thank you. [51:30] Thank you, Mr. Chairman. [51:32] Thank you, Senator. [51:33] At this time, [51:33] I'd like to enter into the record [51:34] of letters supporting [51:35] Mr. Smith's nomination [51:36] from Dean Paul Litton [51:38] of the University of Missouri [51:38] School of Law. [51:40] He praised Mr. Smith's [51:41] quote-unquote [51:42] moral leadership [51:42] and stated [51:43] that I know [51:45] there are some issues [51:46] of jurisprudence, [51:48] including methods [51:49] of constitutional interpretation [51:50] about which Mr. Smith [51:51] and I disagree. [51:52] Such reasonable disagreements [51:54] does not diminish my support. [51:55] He's a person of integrity [51:56] who cares deeply [51:57] about the rule of law, [51:58] including the protection [51:59] of fundamental rights [52:00] and due process, [52:01] end quote. [52:02] Without objection, [52:02] I entered this into the record. [52:04] Senator Kennedy. [52:13] Mr. Smith, congratulations. [52:18] Why do you think [52:20] my Democratic colleagues [52:24] are so keen [52:27] to solicit your opinion [52:30] about who won the election? [52:37] Senator Kennedy, [52:37] I don't mean to speculate [52:40] about what they are doing. [52:41] It has been a consistent theme [52:42] I've seen in hearings. [52:43] Oh, go ahead. [52:44] I want to be very careful, [52:47] Senator. [52:48] I think that's an issue [52:51] of political importance [52:52] to people. [52:53] It's something that has become [52:54] a theme that apparently [52:56] some senators think [52:58] is worthy of putting [52:59] on the video clips [53:00] to share with their friends [53:02] and followers. [53:03] Well, the suggestion [53:04] has been made, [53:08] and I've heard it made [53:09] several times [53:09] by some of my colleagues. [53:12] In fact, [53:13] my friend Senator Durbin [53:14] just made it, [53:16] that somehow [53:19] if you don't disagree [53:22] with the president's position [53:24] on the election, [53:26] it proves you can't stand up [53:29] to the president. [53:32] Is that true? [53:33] Is that the way [53:34] you understand the question? [53:36] I think you're right, Senator. [53:39] I think that is [53:39] the framing of the question. [53:41] When you're on the bench, [53:46] if you're confirmed, [53:48] and you have to make [53:50] a decision in the case, [53:53] you think the president's [53:54] going to be aware [53:55] of every case [53:56] you have to make [53:56] a decision in? [53:58] I would expect [53:58] not, Senator. [53:59] You expect him [54:00] to call you up [54:01] and say, [54:03] here's how I think [54:03] you ought to vote? [54:04] I would not anticipate [54:06] that, Senator. [54:06] Are you going to call him up [54:08] and say, [54:09] how do you think [54:09] I ought to vote? [54:10] I would certainly [54:10] not be doing that, Senator. [54:12] It's kind of absurd, [54:13] don't you think? [54:14] I would agree, Senator. [54:15] Do you mean the scenario? [54:17] And, Senator, [54:17] if I may, [54:18] the very last time [54:19] I stood up [54:19] in the Court of Appeals [54:20] in February [54:21] of the Ninth Circuit, [54:23] I was adverse [54:23] to this administration. [54:25] The Department of Justice [54:26] was arguing against me. [54:28] Do you think [54:34] it's okay [54:35] as an American? [54:36] I'm not talking [54:36] about yourself [54:40] as a judicial nominee. [54:41] Do you think [54:42] it's okay [54:42] as an American [54:43] to disagree [54:44] with the president? [54:49] Senator, [54:49] I disagree [54:50] with people [54:51] I'm very close with, [54:52] so I do agree. [54:53] Do you think [54:54] it's okay [54:54] to agree [54:55] with a position [54:57] or a comment [54:58] made by a president? [55:00] I think it's all right [55:01] to, you know, [55:02] I think people agree [55:03] and disagree [55:03] on things all the time. [55:04] Yeah. [55:05] Do you agree [55:05] with everything [55:07] President Biden [55:08] said or did? [55:11] Senator, [55:11] I don't believe [55:12] I probably did agree [55:13] or disagree [55:13] with everything [55:14] he said, no. [55:14] Okay. [55:15] Do you agree [55:16] or disagree, [55:19] well, strike that, [55:20] do you agree [55:20] with everything [55:21] President Trump [55:22] has said or done? [55:24] You know, [55:24] Senator, [55:25] I'm sure [55:27] there are things [55:27] that I don't agree [55:29] with. [55:29] Yeah. [55:30] Okay. [55:34] And if you disagree, [55:36] let's say, [55:38] with the president [55:39] about something [55:41] he or she [55:42] has said [55:42] or done [55:43] and you've got [55:45] one opinion [55:45] as an American, [55:47] the president [55:48] has another opinion [55:49] and it's debated [55:50] publicly across America, [55:52] who ultimately [55:53] gets to decide [55:54] who's right? [55:56] Well, sir, [55:57] I think the Constitution [55:58] and the rule of law [55:59] would decide [55:59] and that was why [56:00] I would be applying [56:01] faithfully and fairly [56:01] to whoever the parties [56:02] were before me. [56:03] Do you think [56:04] the press gets to decide? [56:07] No, Senator. [56:08] The American people [56:09] get to decide, [56:10] don't they? [56:11] The American people [56:12] do have a really [56:13] important part [56:14] with electing our officials. [56:16] They get to listen [56:16] to the, [56:18] they get to watch [56:20] the dialectic, [56:22] the competing ideas, [56:24] and say, [56:25] well, you know, [56:26] we kind of agree [56:27] with this one [56:28] and we disagree [56:29] with that one. [56:30] What's wrong with that? [56:32] I think the founders [56:33] set up that very system [56:35] where the people [56:35] would make the decisions [56:37] on who was leading [56:38] the country. [56:39] Okay. [56:43] I'm almost out of time. [56:48] Are you an originalist? [56:50] I am, Senator. [56:51] What does that mean? [56:52] An originalist, [56:53] when it comes to [56:54] interpreting the Constitution, [56:55] is attempting to [56:56] determine the original [56:58] public meaning [56:58] of whatever provision [57:00] is at issue. [57:00] What do you mean [57:00] by public meaning? [57:02] How that, [57:03] whatever the provision [57:04] at issue is, [57:05] how it was understood [57:06] by the people [57:06] at the time [57:07] of its ratification. [57:07] By the people? [57:08] Why don't we look [57:09] at the intent [57:09] of the drafters? [57:11] I think that is part [57:12] of the process, Senator. [57:14] There are lots [57:14] of different sources [57:15] that you consult [57:16] to determine. [57:16] You think the people [57:17] at the time [57:17] the Constitution [57:18] was approved, [57:20] my guess is they were busy, [57:21] kind of like Americans today [57:23] earning a living. [57:24] You think they poured [57:25] over the Constitution [57:26] and read every single word [57:28] and thought about [57:29] the consequences [57:30] in the future? [57:31] I mean, why does the public [57:34] meaning, I'm not saying [57:35] you're wrong, [57:36] but why does the public [57:37] meaning matter [57:38] more than the drafters' [57:40] intention? [57:41] I think as I, [57:43] if you look at opinions [57:45] from like Justice Scalia [57:46] and the Heller case, [57:47] there are many different [57:47] historical sources [57:48] you look at to understand [57:49] what the words meant [57:50] that the drafters wrote [57:51] and adopted. [57:52] Yeah, but why the people, [57:53] why would we say [57:55] it's the public meaning [57:56] by the people [57:57] instead of what [57:59] the drafters intended? [58:01] That's all I'm asking you. [58:02] There's no right [58:03] or wrong answer. [58:04] The chairman's going to [58:05] cut me off here in a second [58:06] like a dead stump. [58:09] I'm just asking you why. [58:11] Yeah, well, [58:12] I think trying to understand [58:13] words as they were written [58:15] 230 years ago, [58:17] there's an important process [58:18] of consulting [58:19] what the drafters said [58:20] and looking at different, [58:22] you know, [58:22] how are they go through [58:23] an extensive... [58:24] Yeah, you can finish later [58:25] if you want. [58:26] I don't want to abuse [58:27] my good friend [58:29] who's letting me go on here. [58:31] Thank you, Senator. [58:32] Senator Blumenthal. [58:36] Thanks, Mr. Chairman. [58:38] Mr. Smith, [58:40] you signed an amicus briefs [58:42] in December of 2020 [58:44] supporting an effort [58:45] to dispute the outcome [58:46] of the 2020 [58:48] presidential election. [58:51] I've been asking [58:52] all of the nominees [58:53] about who won [58:57] the 2020 election, [59:00] as you may know. [59:01] I understand you may have [59:02] been asked already [59:03] this morning. [59:03] I want to hear it for myself. [59:05] Who won the popular vote [59:07] in the 2020 election? [59:10] You're right, Senator. [59:11] I have been asked that [59:12] by one of your colleagues [59:13] already, [59:13] and as I explained, [59:14] the popular vote [59:15] is not part of, you know, [59:16] the Article 2 [59:17] or the 12th Amendment. [59:18] There's an electoral college [59:19] that meets in December [59:21] of an election year [59:22] for president [59:23] and that gathers [59:24] to cast the electoral votes. [59:25] Okay, who won [59:26] the 2020 election? [59:28] The person who [59:30] became president [59:31] in January 2020 [59:32] when it was [59:32] when Congress certified... [59:33] In other words, [59:34] you're not going to answer. [59:35] You're going to give me [59:35] the same rote, [59:38] rehearsed answer, [59:40] which frankly [59:40] makes you look ridiculous, [59:44] if not pathetic. [59:47] And I'll ask you [59:49] another question, [59:51] give you an opportunity [59:52] maybe to be more [59:54] forthcoming to this committee. [59:55] who won the popular vote [59:59] in the 2020 election? [1:00:02] As I was just saying, [1:00:03] the popular vote [1:00:04] is not something [1:00:04] that's contemplated [1:00:05] by the Constitution. [1:00:06] I'm asking you [1:00:06] who won it. [1:00:08] As a member [1:00:09] of the Court of Appeals, [1:00:12] you are responsible [1:00:13] for looking to the facts [1:00:18] as well as the law, [1:00:21] granted facts found [1:00:22] by the trial court, [1:00:26] and I'm asking you [1:00:27] to look at the facts here [1:00:28] and give me a straight answer. [1:00:30] Who won the popular vote [1:00:32] in the 2020 election? [1:00:35] In January 2021, [1:00:36] was when Congress [1:00:37] counted the electoral [1:00:38] college votes [1:00:38] and certified Joe Biden [1:00:40] as the president. [1:00:42] So you're not going [1:00:42] to answer my question. [1:00:44] You know, [1:00:44] I would have thought [1:00:45] here you are as a nominee. [1:00:49] I recognize the anxiety [1:00:52] that someone in your position [1:00:53] may feel, [1:00:54] the fear that the president [1:00:56] of the United States [1:00:57] may be watching, [1:00:59] but you're in a pretty [1:01:01] secure position. [1:01:03] As a member of the Court [1:01:05] with lifetime tenure, [1:01:06] you're in an indisputably [1:01:09] secure position. [1:01:10] If you don't have [1:01:10] the courage now [1:01:11] to state your independent [1:01:14] judgment on a clear, [1:01:16] factual issue, [1:01:19] I don't know how [1:01:20] the United States Senate [1:01:21] can confirm you [1:01:23] as a member of [1:01:26] one of the most powerful [1:01:28] courts in the country. [1:01:30] Let me ask you finally, [1:01:31] did Donald Trump [1:01:32] lose the 2020 election? [1:01:35] As I said a moment ago, [1:01:37] Senator, [1:01:38] when Congress counted [1:01:39] the electoral college votes [1:01:40] in January 2021, [1:01:41] Joe Biden was certified [1:01:42] as president. [1:01:43] Okay, let's try another topic. [1:01:47] Was the United States [1:01:49] Capitol attacked [1:01:50] on January 6, 2021? [1:01:56] I want to be very careful [1:01:57] in the language I use, [1:01:59] Senator, [1:01:59] because there are cases [1:02:00] that have been filed [1:02:01] in the Eighth Circuit [1:02:01] where the characterization [1:02:03] of that day [1:02:03] has been central to the case. [1:02:05] And as a judicial nominee, [1:02:06] I don't want to prejudge [1:02:07] any of those cases [1:02:08] that might come before me. [1:02:09] Have you seen video footage [1:02:11] of that attack? [1:02:13] I've seen the news reports [1:02:15] from that day yesterday. [1:02:16] And what did you see [1:02:17] in those videos? [1:02:17] I think what the Supreme Court [1:02:19] in the three cases [1:02:20] that they have handled [1:02:21] that have issues [1:02:23] related to that day, [1:02:25] the Trump versus Anderson case [1:02:26] out of Colorado, [1:02:28] the Trump versus United States case [1:02:30] that I was privileged to handle. [1:02:31] Did you see people punching [1:02:33] Capitol Police officers? [1:02:35] They're the ones [1:02:36] outside this hearing room [1:02:38] protecting us. [1:02:39] Did you see [1:02:40] the violent attackers [1:02:42] punching, kicking, beating [1:02:44] Capitol Police officers? [1:02:46] I want to be very clear [1:02:47] that I condemn violence [1:02:49] on that day [1:02:50] and every day. [1:02:50] And I'm very grateful [1:02:51] for the men and women [1:02:53] of law enforcement. [1:02:54] And you saw them [1:02:55] attacked on that day, [1:02:56] did you not? [1:02:57] I believe the language [1:02:58] that the Supreme Court [1:02:59] has used in the three cases [1:03:00] that I just mentioned [1:03:01] is that there was a breach [1:03:02] of the Capitol. [1:03:03] Did you see people [1:03:04] throwing things [1:03:05] at those officers [1:03:06] and at the Capitol? [1:03:09] Senator, as I said, [1:03:10] I condemn all the violence [1:03:11] that occurred on that day [1:03:12] and that has occurred [1:03:13] on other days as well. [1:03:14] Would you agree with me [1:03:16] that what happened [1:03:18] on that day [1:03:18] was a violent mob [1:03:24] attacking the Capitol? [1:03:27] You've seen the videos? [1:03:29] I have seen the videos, [1:03:30] yes, Senator. [1:03:31] You would agree? [1:03:33] I will say what I've said [1:03:34] several times now, [1:03:35] that I condemn the violence [1:03:36] and I would use the language [1:03:37] of the Supreme Court [1:03:38] in those three cases, [1:03:40] the Trump versus United States. [1:03:41] I really regret [1:03:41] that you don't have [1:03:43] the grit [1:03:45] to stand up [1:03:46] and speak out [1:03:47] on an issue [1:03:48] of such fundamental importance [1:03:50] and that you are, [1:03:52] in effect, [1:03:54] intimidated [1:03:54] by the remote prospect [1:03:58] that the President [1:03:59] of the United States [1:03:59] may take umbrage [1:04:01] and withdraw your nomination. [1:04:03] If you don't have the courage [1:04:04] to tell this committee [1:04:06] the truth, [1:04:07] you don't deserve [1:04:07] to be on the bench. [1:04:08] Thank you, Mr. Chairman. [1:04:09] Senator Hirono. [1:04:12] Thank you. [1:04:12] I ask the following [1:04:16] two initial questions [1:04:17] of all nominees [1:04:18] coming before any [1:04:19] of the committees [1:04:20] on which I sit [1:04:21] to ensure the fitness [1:04:23] of the nominee to serve. [1:04:25] So I will ask you [1:04:26] the following two questions. [1:04:28] Since you became [1:04:29] a legal adult, [1:04:30] have you ever made [1:04:31] unwanted requests [1:04:32] for sexual favors [1:04:34] or committed any verbal [1:04:36] or physical harassment [1:04:38] or assault [1:04:39] of a sexual nature? [1:04:41] No. [1:04:42] Have you ever faced discipline [1:04:44] or entered into a settlement [1:04:45] relating to this kind [1:04:47] of conduct? [1:04:50] No. [1:04:52] Mr. Smith, [1:04:52] on July 30th, 2024, [1:04:55] you wrote a post [1:04:56] on Breitbart [1:04:58] endorsing a Missouri [1:05:00] Attorney General candidate. [1:05:02] Do you recall that post? [1:05:06] I do, Senator. [1:05:07] So in that post, [1:05:10] you wrote, quote, [1:05:11] Republican attorneys general [1:05:13] are critical [1:05:14] in the fight [1:05:15] against the radical left. [1:05:16] We need the, [1:05:17] we need true conservatives [1:05:19] to defeat [1:05:20] the abortion [1:05:21] industrial complex, [1:05:23] the lawlessness [1:05:23] plaguing blue cities, [1:05:26] and the woke ideology [1:05:28] invading our schools. [1:05:31] End quote. [1:05:32] Can you define [1:05:34] the word woke? [1:05:37] Senator, [1:05:38] I was very proud [1:05:39] to support my friend [1:05:40] who was running [1:05:40] in that election. [1:05:42] That was a piece [1:05:42] of political advocacy, [1:05:43] and as I was explaining [1:05:44] to one of your colleagues earlier, [1:05:46] the partisan views [1:05:47] or political activity [1:05:48] I've had before [1:05:48] would play no bearing [1:05:49] on my role as a judge. [1:05:51] Well, you're not responding [1:05:52] to my question. [1:05:55] Can you define for me [1:05:56] what constitutes woke ideology? [1:06:00] You wrote it. [1:06:02] You meant something. [1:06:03] I'd just like you [1:06:04] to tell us [1:06:05] what you meant by that. [1:06:07] Yeah, Senator, [1:06:08] in the course [1:06:08] of a political campaign, [1:06:09] that was a piece [1:06:11] that I put out [1:06:13] in support of my friend. [1:06:16] But as a judicial nominee, [1:06:17] I don't think it's appropriate [1:06:18] for me to start commenting [1:06:19] on political views [1:06:21] because as a judge, [1:06:23] I would not be applying [1:06:25] those partisan [1:06:26] or personal views [1:06:27] vibes on the bench. [1:06:28] Well, the thing is [1:06:29] that this whole idea [1:06:30] of woke ideology [1:06:31] and DEI, [1:06:36] you know, [1:06:36] the president has issued [1:06:38] an executive order [1:06:39] telling all of his [1:06:40] administrative agencies [1:06:41] to eliminate [1:06:42] any support of DEI. [1:06:45] And so you're going [1:06:46] to get cases that use [1:06:48] terms like woke [1:06:49] or DEI, et cetera. [1:06:51] And so I think [1:06:52] it would be good [1:06:53] for us to know [1:06:54] what you mean [1:06:55] by what you wrote [1:06:56] and you're not going [1:06:57] to respond. [1:06:58] So, okay, there you go. [1:07:01] You've been asked [1:07:01] a number of questions [1:07:02] by a number [1:07:02] of my colleagues [1:07:03] about who won [1:07:04] the 2020 election [1:07:05] and you testified today [1:07:07] that it is [1:07:08] the Electoral College [1:07:09] that matters [1:07:11] in determining [1:07:12] who is the president. [1:07:14] So the House [1:07:15] and Senate [1:07:15] was in the process [1:07:16] of certifying [1:07:17] the electoral votes [1:07:19] on January 6th. [1:07:21] Do you acknowledge [1:07:22] that rioters [1:07:23] on January 6th [1:07:25] sought to stop [1:07:28] this process [1:07:29] to prevent Joe Biden [1:07:31] from being the president? [1:07:33] If that's a yes [1:07:34] or no question. [1:07:36] So I understand [1:07:37] that the counting [1:07:38] of electoral votes [1:07:39] was interrupted [1:07:40] on January 6th. [1:07:41] I want to be very careful [1:07:42] in getting beyond, [1:07:44] too much further beyond that [1:07:45] because there is still [1:07:46] active litigation. [1:07:47] I think it's pretty clear [1:07:48] what the rioters' [1:07:50] intents were [1:07:50] and, in fact, [1:07:51] if you don't want to, [1:07:52] you won't answer [1:07:53] that straightforward question. [1:07:56] I have another one. [1:07:57] Do you also acknowledge [1:07:58] that a number [1:08:00] of these rioters, [1:08:01] some 1,500 or so [1:08:02] of them, [1:08:03] were convicted [1:08:04] and that President Trump [1:08:06] pardoned them? [1:08:07] Do you acknowledge [1:08:08] that fact? [1:08:10] Yes or no? [1:08:12] I think that is [1:08:14] what happened, Senator. [1:08:15] So you represented... [1:08:19] I'm glad that you actually [1:08:21] acknowledged a factual question [1:08:23] that he pardoned. [1:08:26] All these rioters [1:08:26] who were very intent [1:08:28] on beating up [1:08:29] our police here [1:08:32] and trying to stop [1:08:33] the counting [1:08:34] of the Electoral College. [1:08:36] So, Mr. Smith, [1:08:37] you have represented [1:08:39] President Trump [1:08:40] in multiple lawsuits [1:08:41] in which he has been found [1:08:43] liable for defaming [1:08:45] and committing sexual [1:08:47] battery against E.G. and Carroll. [1:08:49] In these cases, [1:08:50] you represented the president [1:08:52] in his personal capacity. [1:08:54] If a case comes before you [1:08:56] in which President Trump's [1:08:57] personal interests [1:08:58] are heavily implicated, [1:09:02] will you recuse yourself? [1:09:05] Senator, [1:09:05] I've been very proud [1:09:06] to represent the president [1:09:07] in those cases. [1:09:08] Well, will you recuse yourself? [1:09:09] I will recuse [1:09:10] from any case [1:09:11] I've been personally involved in. [1:09:12] For any other case, [1:09:13] I would consult [1:09:14] the judicial canons [1:09:15] and the appropriate [1:09:16] recusal rules. [1:09:18] I may need to consult [1:09:19] with my colleagues. [1:09:20] Well, considering [1:09:20] the kind of representation [1:09:22] that you've provided, [1:09:23] President Trump, [1:09:24] you do cite [1:09:25] to the canons of ethics [1:09:27] and the code of conduct [1:09:28] for United States judges [1:09:29] requires a judge [1:09:30] to disqualify himself, [1:09:32] quote, [1:09:33] in a proceeding [1:09:34] in which the judge's [1:09:35] impartiality [1:09:36] might reasonably be questioned, [1:09:38] and end quote. [1:09:38] I would say that [1:09:40] in any case involving [1:09:41] President Trump's [1:09:42] personal interests, [1:09:43] you should recuse yourself [1:09:45] because it is very clear [1:09:46] where your loyalties lie. [1:09:48] Thank you, Mr. Chairman. [1:09:49] Senator Hawley. [1:09:52] Thank you very much, [1:09:52] Mr. Chairman. [1:09:53] Mr. Smith, [1:09:54] congratulations again. [1:09:55] It's nice to see you now [1:09:56] in that chair. [1:09:57] Look forward to seeing you [1:09:58] behind the dais here [1:10:01] sometime soon [1:10:02] in the Eighth Circuit. [1:10:03] Let me just ask you, [1:10:04] you served as chief of staff [1:10:05] and first assistant [1:10:06] to my predecessor, [1:10:08] Missouri, [1:10:09] now my colleague, [1:10:09] Senator Schmidt. [1:10:11] While you were in the AG's office, [1:10:12] Missouri took on [1:10:13] some of the most consequential [1:10:14] state-level litigation [1:10:15] in the country, [1:10:16] I think it's fair to say. [1:10:17] Vaccine mandates, [1:10:18] big tech censorship, [1:10:20] the landmark case against China [1:10:21] that resulted in a $24 billion judgment. [1:10:25] Can you just describe for us [1:10:26] the role that you played [1:10:27] in setting litigation strategy [1:10:29] while you were in the office [1:10:30] and what cases, [1:10:32] what those cases taught you [1:10:34] about the relationship [1:10:35] between state sovereignty [1:10:36] and federal power? [1:10:37] We had a great team [1:10:40] in the Attorney General's office [1:10:41] led by the person [1:10:43] who came after use [1:10:44] and now Senator Schmidt. [1:10:46] In each of those cases [1:10:47] you mentioned, [1:10:48] in my role, [1:10:49] I got to help line up [1:10:51] the attorneys [1:10:51] who would work on the case, [1:10:53] work with them on strategy [1:10:54] and arguments, [1:10:55] review draft [1:10:56] and final pleadings. [1:10:58] In some of those cases, [1:10:59] you mentioned, [1:10:59] I was the attorney of record [1:11:00] when the case was filed [1:11:01] and then would help [1:11:03] throughout the course [1:11:03] of the litigation [1:11:04] with whatever the team would need. [1:11:06] We had some great attorneys [1:11:07] in that office [1:11:08] and I was proud [1:11:10] to be part of the team. [1:11:11] And as it relates [1:11:11] to the last part [1:11:12] of your question [1:11:12] on state sovereignty, [1:11:14] the founders set up [1:11:16] a very important vertical separation [1:11:18] of powers [1:11:18] in which states play a key role [1:11:21] and that in the Attorney General's office [1:11:23] I learned how important [1:11:24] the state sovereignty [1:11:26] and the ability [1:11:28] to represent those interests [1:11:29] in that office can be. [1:11:31] I want to shift gears [1:11:34] for just a second [1:11:34] and talk about a report [1:11:36] that was released yesterday [1:11:37] by the Department of Justice [1:11:38] on the incredible weaponization [1:11:42] and targeting [1:11:42] of persons of faith [1:11:44] in this country [1:11:45] and pro-life Americans [1:11:46] in particular. [1:11:47] And I want to rehearse for you [1:11:48] a catalog, [1:11:49] I'm sorry to say, [1:11:50] it is a very sorry catalog [1:11:52] of abuse of power [1:11:54] perpetrated [1:11:55] by the last administration [1:11:56] at the highest levels [1:11:57] of that administration, [1:11:59] the FBI, [1:11:59] the Department of Justice [1:12:00] all the way to the White House. [1:12:01] The report that was released yesterday [1:12:03] was based on a review [1:12:03] of 700,000 internal records [1:12:06] that detailed in striking detail [1:12:08] with striking specificity, [1:12:12] I should say, [1:12:13] how the Department of Justice [1:12:14] under Joe Biden [1:12:15] used the FACE Act [1:12:16] to go after pro-life Americans. [1:12:20] That is, [1:12:21] they used pro-abortion groups, [1:12:24] they brought cases [1:12:25] that were tenuous at best [1:12:28] in order to intimidate pro-lifers, [1:12:31] people like Mark Houck, [1:12:33] who was a, [1:12:34] was and is, [1:12:36] a law-abiding citizen [1:12:37] who had the temerity [1:12:39] to go and pray outside [1:12:40] an abortion clinic [1:12:41] and for that crime, [1:12:43] quote-unquote, [1:12:44] had a federal SWAT team [1:12:45] show up at his door [1:12:46] in the early hours [1:12:47] of the morning, [1:12:48] drag him out, [1:12:48] handcuff him in front [1:12:49] of his children [1:12:50] who were screaming. [1:12:51] They didn't know [1:12:52] what they were going to do [1:12:52] with their dad. [1:12:52] A jury later acquitted him, [1:12:54] thank goodness, [1:12:55] on all charges. [1:12:57] This is the same people [1:12:58] who at the same time [1:12:59] in the Biden Justice Department, [1:13:01] while churches [1:13:01] were being literally firebombed, [1:13:03] while pregnancy care centers [1:13:04] were being vandalized, [1:13:05] they did nothing. [1:13:06] The striking disparity [1:13:08] is absolutely unconscionable. [1:13:11] This is also an administration [1:13:12] that recruited spies, [1:13:15] recruited informants [1:13:17] into Catholic parishes [1:13:18] in this country, [1:13:19] parishes that the last administration [1:13:21] deemed to be suspect, [1:13:22] whose theology they didn't like. [1:13:24] They wanted to try [1:13:25] to get informants [1:13:26] in the parishes [1:13:27] to work with the FBI [1:13:28] to spy on American parishioners. [1:13:31] This is the sort of thing [1:13:32] that frankly is unheard of [1:13:33] in American history, [1:13:34] this deliberate targeting [1:13:36] of people of faith. [1:13:37] So here's my question to you. [1:13:39] You will, [1:13:40] if you are confirmed, [1:13:41] soon be on the bench [1:13:42] and have charge of enforcing [1:13:44] in a fair and even-handed manner [1:13:45] the First Amendment [1:13:46] to the Constitution [1:13:47] of the United States, [1:13:48] tell us about the importance [1:13:49] of the First Amendment, [1:13:50] about the importance [1:13:51] of religious liberty, [1:13:52] and the importance [1:13:53] of this bedrock principle [1:13:54] for the civil rights [1:13:56] and political rights [1:13:57] of all Americans [1:13:58] that your religious faith [1:13:59] shouldn't make you an enemy [1:14:00] of the state in this country. [1:14:02] What are your views on this? [1:14:04] The First Amendment [1:14:05] is the beating heart [1:14:06] of the Constitution. [1:14:07] It's incredibly important. [1:14:09] The Free Exercise Clause [1:14:10] and the Freedom of Speech, [1:14:11] those core provisions [1:14:13] to the Constitution [1:14:14] that you were mentioning. [1:14:15] I know this has been an issue [1:14:16] that you have championed, [1:14:17] Senator, [1:14:17] and I would point out [1:14:18] that I was privileged [1:14:20] to be co-counsel [1:14:21] for Mr. Houck [1:14:21] on a case that was filed [1:14:22] after he was acquitted [1:14:24] to try to compensate [1:14:25] his family [1:14:26] for the raid at his house [1:14:28] for pointing the long guns [1:14:30] at his wife and children. [1:14:32] There was a settlement [1:14:32] that we just worked out [1:14:33] earlier this year [1:14:34] on that case [1:14:35] to try to compensate [1:14:36] for what had been done. [1:14:38] And you're right, [1:14:39] there were some terrible facts [1:14:41] from that case, [1:14:42] and we were grateful [1:14:43] to have worked out [1:14:44] a resolution [1:14:44] for Mr. Houck [1:14:45] in that case. [1:14:46] Let me just, [1:14:46] in my remaining seconds here, [1:14:47] see if we can establish, [1:14:48] maybe you and I together [1:14:49] can establish just a basic [1:14:50] constitutional baseline. [1:14:52] Should any American citizen [1:14:54] be disfavored in law [1:14:56] on the basis [1:14:56] of their religious faith? [1:14:59] Absolutely not. [1:14:59] Should any American citizen [1:15:01] be targeted [1:15:01] by law enforcement [1:15:03] on nothing more [1:15:04] than the basis [1:15:04] of their religious faith? [1:15:06] Yeah, and Senator, [1:15:07] I don't want to prejudge [1:15:08] any case, [1:15:09] but I think [1:15:09] the Supreme Court [1:15:10] has said [1:15:10] that viewpoint discrimination [1:15:11] is not something [1:15:12] that the government [1:15:14] should ever do. [1:15:15] Is the federal government [1:15:16] empowered and entitled [1:15:17] to keep lists [1:15:18] of churches [1:15:19] that it theologically [1:15:21] disagrees with, [1:15:22] regards therefore [1:15:23] as suspect, [1:15:25] and use the federal [1:15:26] law enforcement power [1:15:27] to recruit spies, [1:15:30] to recruit informants, [1:15:31] or otherwise disfavor [1:15:33] these religious organizations [1:15:34] on nothing more [1:15:35] than the basis [1:15:35] of their theology? [1:15:36] Can they do that [1:15:37] under the Constitution? [1:15:38] Yeah, I think [1:15:38] the Supreme Court [1:15:39] has said time and time again [1:15:40] that the federal government [1:15:41] is not supposed [1:15:42] to be discriminating [1:15:43] against anyone [1:15:43] for their religious views. [1:15:45] That's exactly correct. [1:15:46] I mean, the answer [1:15:46] to all those questions [1:15:47] is no, no, no. [1:15:50] And it is time [1:15:51] that we had [1:15:51] in this country [1:15:52] the return to the rule of law [1:15:54] and the protection [1:15:54] of the First Amendment [1:15:55] of the United States, [1:15:56] the protection for people [1:15:57] of faith in this country. [1:15:59] Yesterday's report [1:15:59] was an incredible, [1:16:00] stunning wake-up call, [1:16:02] should be. [1:16:02] And I hope that part [1:16:03] of the remedy to this [1:16:04] and the incredible abuse [1:16:05] that we have seen [1:16:06] in the last four years, [1:16:07] five years, [1:16:08] will be people like you [1:16:09] on the bench, Mr. Smith, [1:16:10] who will apply [1:16:11] our Constitution [1:16:12] and the rule of law [1:16:13] even-handedly, [1:16:14] fairly, without fear [1:16:15] or favor. [1:16:16] I look forward [1:16:17] to seeing you on that bench. [1:16:18] Thank you, Mr. Chairman. [1:16:19] Senator Whitehouse. [1:16:22] Thank you, Chairman. [1:16:23] Mr. Smith, [1:16:24] I'd like to walk through [1:16:26] what I see [1:16:26] as the backdrop [1:16:28] to this proceeding. [1:16:29] As you may know, [1:16:32] I think that there has been [1:16:34] a deliberate effort [1:16:36] to capture our courts [1:16:38] by basically right-wing billionaires, [1:16:42] many affiliated [1:16:43] with fossil fuel interests, [1:16:45] that the capture effort [1:16:47] focused particularly [1:16:48] on the Supreme Court, [1:16:50] that it has been successful, [1:16:52] that the methodology [1:16:53] with the traditional methodology [1:16:55] that has a huge literature [1:16:59] in the field of economics [1:17:01] and administrative law [1:17:02] of regulatory capture [1:17:04] and agency capture, [1:17:07] that in the same way [1:17:07] that the robber barons [1:17:08] who ran mines [1:17:09] captured the mining safety commission, [1:17:12] so they always got the rules [1:17:13] they wanted, [1:17:14] and in the same way [1:17:15] that railroad barons [1:17:16] captured the railroad rate commission, [1:17:19] so they always got paid [1:17:20] what they wanted, [1:17:22] an effort was made [1:17:23] that has been effective [1:17:25] to capture the Supreme Court. [1:17:28] That's the background [1:17:29] that I start with. [1:17:31] One of the point people [1:17:32] for this crew [1:17:33] of right-wing billionaires [1:17:34] was a guy named Leonard Leo. [1:17:37] He was sort of their agent [1:17:39] and court fixer [1:17:40] in this effort. [1:17:43] I have used a graph before [1:17:45] that described [1:17:46] the corporate structures [1:17:47] that he set up [1:17:48] to accomplish this effort. [1:17:50] I refer to it as the Leo bug [1:17:53] because it looks a little bit like [1:17:54] an insect. [1:17:56] This is the original shape [1:18:00] of his effort. [1:18:01] These central groups [1:18:03] tend to be actual corporate entities. [1:18:07] These are fictitious names, [1:18:11] fictitious names [1:18:12] through which the other entities [1:18:14] can operate. [1:18:16] Lexington Fund is yellow here [1:18:18] because until recently [1:18:19] it was called Concord Fund. [1:18:21] What happened with the Leo bug [1:18:23] is that a billionaire [1:18:25] dumped on Leonard Leo [1:18:27] a $1.6 billion slush fund [1:18:29] through the Marble Freedom Trust. [1:18:34] And in the wake [1:18:35] of that enormous flow of funds, [1:18:40] we have seen [1:18:41] the Leo bug metastasize. [1:18:46] One new element [1:18:48] is something called [1:18:49] Alliance for Consumers Action. [1:18:51] It's another fictitious name [1:18:53] in this case [1:18:54] for the renamed [1:18:55] Lexington Fund. [1:18:57] And if you take a look [1:18:58] at Alliance for Consumers Action, [1:19:02] you see that there are actually [1:19:05] five different groups [1:19:06] that are all almost identically named. [1:19:09] Alliance for Consumers Action Fund, [1:19:11] Alliance for Consumers Fund, [1:19:13] Alliance for Consumers Action, [1:19:15] Alliance for Consumers Action Fund, [1:19:17] and Alliance for Consumers Action Fund. [1:19:22] And they are connected [1:19:23] to various different groups [1:19:26] for which they operate [1:19:28] under fictitious names. [1:19:31] So Lexington Fund and Concord [1:19:32] were the two that were [1:19:33] in the original Leo bug. [1:19:36] If you go back [1:19:37] to the original Leo bug, [1:19:38] you also see [1:19:39] the Honest Elections Project. [1:19:41] This was used [1:19:42] to file an amicus brief [1:19:44] in the Supreme Court [1:19:45] without disclosing [1:19:46] its affiliation [1:19:47] with the Judicial Crisis Network, [1:19:51] which spent millions of dollars [1:19:52] to get three Leonard Leo [1:19:54] selected Supreme Court justices [1:19:57] appointed to the court. [1:19:59] They didn't bother [1:19:59] to disclose that. [1:20:01] They filed an amicus brief [1:20:02] in court [1:20:03] under a fictitious name. [1:20:06] And post Marble Freedom Trust [1:20:08] in the $1.6 billion, [1:20:09] we've seen the Honest Elections Project [1:20:13] also metastasize. [1:20:15] Now there's an Honest Elections Project. [1:20:18] There's an Honest Elections Project. [1:20:20] Not plural. [1:20:22] There's an Honest Elections Project Action Fund. [1:20:24] There's an Honest Elections Project Fund. [1:20:27] There's an Honest Elections Project Action. [1:20:30] And there's Honest Elections Project Action. [1:20:33] And again, [1:20:33] they connect to as fictitious names [1:20:36] for those same four Leonard Leo entities, [1:20:39] Lexington Fund, Yorktown Fund, 85 Fund, Concord Fund, and a new one, the Publius Fund. [1:20:47] So that's a lot of corporate activity. If you want to pull what this old Leo bug in its rather [1:20:57] dark simplicity looked like, this is now what it looks like. There are more than 20 organizations, [1:21:05] all with these very alike names, American Parents Coalition Fund, American Parents Coalition Action [1:21:10] Fund, American Parents Coalition Action, American Parents Coalition, American Parents Coalition Action, [1:21:15] and they all connect as fictitious names of those five Leo entities. Lexington Fund, Yorktown Fund, [1:21:22] 85 Fund, Concord Fund, and Publius Fund. That is a pretty remarkable creation, presumably designed to [1:21:32] mislead. Why would you have five or six virtually identical names for separate fictitious names [1:21:39] screening corporate entities? And when we get to you, you've got connections with almost all of them. [1:21:50] You've got connections with the Yorktown Fund, you've got connections with the Concord Fund, [1:21:54] you've got connections with the Lexington Fund, you've got connections with Club for Growth Action [1:21:59] in Missouri, American Patriot Fighters, First Principal Actions, Defend Missouri, Publius Fund, [1:22:05] and Teneo Network, all of which get money from the Leonard Leo bug, from that operation. So it looks to me [1:22:13] like what we have here is somebody who is going to be planted on the court and bide your time until you get [1:22:22] a case in which this group of front groups has an interest and then they will turn up the way they do in [1:22:28] the Supreme Court in a flotilla of phony front group, amarchy, and when that happens, I'm here to [1:22:37] predict that you will rule for them 100 percent of the time. Thank you. My Democrat colleagues have [1:22:45] repeatedly issued this refrain about alleged ties to conservative funding groups and it's totally [1:22:50] hypocritical. I would point out that my Democrat colleagues repeatedly supported President Biden's [1:22:55] nominees who had ties to quote-unquote dark money. They all supported Amir Ali, who headed the anti-police [1:23:02] MacArthur Justice Center, which was funded by a liberal dark money organization, several of them [1:23:07] actually, and they supported Nancy Maldonado, who expressly coordinated her nomination with the [1:23:12] Raven Group Demand Justice and the Alliance for Justice, all liberal dark money groups. Mr. Smith. [1:23:18] Since the chairman has chosen to. No, no, you had your time and you went over time, [1:23:23] senator. I was, I was. Everybody's gone over time. Yeah, no, and I gave you exactly the amount of time [1:23:27] everybody went over time. It's just fine. Okay. But you also called me out afterwards, so I was. I'm just [1:23:31] rebutting a refrain that I've heard time and time again that deserves a response. And now it's my time [1:23:35] to ask questions, senator. Um, Mr. Smith, um, you've served in private practice, you've been in different [1:23:43] positions in government, in the attorney general's office, a senior advisor in the senate. How have those roles [1:23:50] shaped your understanding of the judicial role, um, that if, if you are confirmed that you will have [1:23:55] on the eighth circuit? Yeah, I've been very grateful for the opportunities I've had. I've worked at a big [1:24:01] firm, a small firm. I've represented, you know, companies and individuals and, you know, I've also [1:24:07] gotten to represent children. I was a guardian ad litem for some foster kids who were born, uh, to really bad [1:24:14] situations. And I became their attorney at day three and the other at day four and was able to represent [1:24:20] them until they got adopted into really good homes. And even though they may never know who I was, [1:24:25] I was really grateful to, to get to play a small role in, in their future. You know, I got to see [1:24:32] in the cases that, that we handled in the Missouri attorney general's office, the importance of judges [1:24:37] applying the, the rule of law, the constitution and the appropriate statutes to the case before them [1:24:43] and to do so fairly and impartially. And, you know, I would also say that in the governor's office, [1:24:48] I also learned about the, the attention to detail and learning really complex and detailed records [1:24:54] that sometimes span decades. And I got to, you know, be a part of some really important and meaningful [1:25:00] decisions in the, the clemency process and, and making some decisions that righted some wrongs in [1:25:05] the past. And all those experiences I think have made me a really well-rounded person to be able to [1:25:10] see the lies you said in your opening remarks from a lot of different angles. Um, I want to ask you about [1:25:15] a moment that you maybe had in your, um, in one of these positions or, or probably most accurately in [1:25:23] your, in your role as an advocate, um, or the, when you were making your, you're giving the defense [1:25:29] of a legal position, um, that, or that was unpopular that may have cost you, um, real professional or [1:25:36] personal cost. Or was there a moment that you can point to, um, where the kitchen was, was pretty hot and, [1:25:44] um, you know, you, you stood your ground and, and defended the law? [1:25:49] Yeah, I, I would point to August of 2023 when, uh, we agreed at our firm to represent the president [1:25:57] of the United States. Uh, at the time he had just been indicted, I think the fourth time. And, uh, [1:26:02] you know, a lot of the lawyers he'd had, uh, years before had also been indicted in some of those cases. [1:26:08] Uh, you know, that was a decision that, that my colleagues at the firm and I, uh, understood, [1:26:13] and that we thought it was so important though to the constitution and the rule of law to be able [1:26:16] to be zealous advocates and to, to, uh, take on President Trump's case. And we were very proud [1:26:21] to have done so. You know, there were some people who thought that wasn't the smartest thing to do. [1:26:25] He, uh, you know, at the time it was not certain that he would, uh, how he would fare in the election. [1:26:32] But it was still really important to, to me individually and to, to my colleagues to be able [1:26:36] to take on that case even though it did carry great professional and personal risk. [1:26:41] And I'm very grateful that we had the opportunity to represent President Trump in that case. [1:26:45] You know, I, um, as you know, I'm, um, this is a very different hearing for me, uh, given, um, [1:26:53] you know, the relationship that we have had and the trust that I've, I've placed in you and you [1:26:57] earned it every single time. One of the questions that I, on this committee now, um, being a former [1:27:03] attorney general in a time where, um, there were a lot of, um, challenges that we made that, um, [1:27:09] at the time, especially during COVID. Um, you know, some people didn't like what we did. [1:27:17] Some people liked what we did, but felt like it was important to stand up for people [1:27:20] whose rights were being abused. And you were there every step of the term, it's a step of the, [1:27:24] step of the way. And so what I try to get to in this committee, I think that, um, you know, [1:27:31] you've answered the originalist question, all of these kinds of questions that, that come that are [1:27:35] important questions. There's no doubt about it. These are important questions to ask. You're about [1:27:40] to serve on, um, a very important appellate court. But I try to get at this sort of courage test [1:27:49] that's really hard to get at when you don't know somebody and you're at a hearing and you're trying [1:27:54] to, that's why I ask the question, has there been a moment where you really stuck to your guns? You [1:27:58] knew it might not be unpopular, but it was the right thing to do or it was the legally correct position [1:28:03] to have. Um, and with you, um, I already know the answer because I've seen you do it. I've seen [1:28:10] you do it time and time again. Um, and no posturing, no puffery, just a, a very calm, steady demeanor [1:28:18] that is ideally suited, uh, for the judiciary. Um, I can't recommend somebody enough. I already have [1:28:26] for this position in you and I'm just, I'm really proud of you and, uh, you're gonna make a great judge [1:28:31] judge because you appreciate the law, you appreciate our constitutional system, our structure [1:28:37] and the protections that are both vertical and horizontal that were built into our system. [1:28:41] It's in your core and I really trust that you're gonna do a great job and, uh, you know, congratulations. [1:28:47] Senator Schiff. Senator Welsh. Uh, thank you very much. Uh, I, uh, was watching some of the earlier [1:28:57] questions and answers including about the election and I just want to follow up a little bit on that. [1:29:02] Who won the 2022 election for the United States Senate in Missouri? [1:29:10] Well, I think under the 17th Amendment, the election for United States Senate is [1:29:13] carried out a little bit differently than the election for president. [1:29:16] You know, prior to the 17th Amendment, the senators, as I recall, were chosen by state legislatures and that [1:29:21] was the process in this country for about... I didn't ask for a history lesson. I'm asking who won [1:29:28] the 2022 election for the United States Senate in Missouri? [1:29:32] Well, I think the history is important to explain that in the 17th Amendment, different than the 12th. [1:29:36] I'm gonna interrupt you. Save it, okay? It might be important, but somebody ran and somebody won that [1:29:43] election. I'm asking you who won that election? Yeah, so pursuant to the 17th Amendment, the Missouri [1:29:48] Secretary of State certified Eric Schmidt as the winner of the 2022 election. Who won it? [1:29:52] As I just said, under the 17th Amendment, Eric Schmidt was certified and took the oath of office in January [1:29:57] 2023. I agree that Senator Schmidt was elected. I agree that he took office in January 2023, [1:30:05] and that the election was cast and counted by the Missouri Secretary of State. You know what? [1:30:11] I believe that Senator Schmidt won that election. In a landslide, Senator. [1:30:17] Well, I wasn't gonna brag about it like that. But what is so hard about saying that? You were asked [1:30:28] by Senator Blumenthal about the 2020 election, and you could not say and won't say that Joe Biden was [1:30:38] elected by the American people to be president, right? I think my answers have been consistent with [1:30:44] other answers this committee has heard. That's a legal matter. Okay, they're consistent with what every [1:30:49] nominee has said in the rehearsed way. But you do understand that President Trump continues to deny [1:30:59] that he lost that election and continues to assert that that election was stolen, correct? [1:31:05] Yeah, I want to dispute that you said these were rehearsed or canned answers. These are my answers. [1:31:10] These are the legally correct answers. Okay, so you are aware that President Trump continues to assert that he won the 2020 election? [1:31:19] I'm aware that President Trump has a lot of views on the 2020 election. [1:31:28] Here's the worry here. You know, I was here on January 6th. I was here when the mob attacked, [1:31:34] when the gun was fired, when the mob was breaking the doors down. I didn't believe it was happening. [1:31:41] And the reason I didn't believe it was happening is because this is the United States of America, [1:31:45] and we believe in the peaceful transfer of power. And we renounce violence as a way to overcome [1:31:52] the decision of the American people at the polling booth. But it did happen. And you can't acknowledge [1:32:01] that President Biden won the popular vote. You can't acknowledge that under our process, [1:32:07] he won the election. You can't say that. I share the apprehension that Senator Blumenthal [1:32:18] has that the nominees who come in here can't say the obvious. You win some elections, [1:32:23] you lose some elections. And you as a judge still cannot just say plainly that Biden won and Trump lost. [1:32:36] Is that the case? I think I want a judge to be very legally precise in what they said. [1:32:42] And I've repeatedly referred to Article 2 into the 12th Amendment. [1:32:45] Well, what you're calling legally precise, a lot of people would call politically evasive. [1:32:55] Mr. Chairman, what is the problem with acknowledging who won the election? [1:33:07] Mr. Chairman, I have repeatedly acknowledged that Joe Biden was certified as the president in January 2021. [1:33:15] Mr. Chairman, but what that suggests is it was like by accident. It was by subterfuge. [1:33:20] It was somehow illegitimate. Do you believe any of those things to be the case? [1:33:25] Mr. Chairman, I've explained the legitimate process of the Electoral College counting their votes in [1:33:31] December of 2020. This is when those votes were cast. [1:33:33] Mr. Chairman, under your approach, any of us can have whatever opinion we want as to whether the [1:33:40] election was legitimate or not. You remember that then-President Trump filed, [1:33:47] I think, like 80 lawsuits and virtually all of them except one were thrown out of court. [1:33:53] Was there any judicial support for your view that says that there wasn't a conclusive outcome [1:34:00] in the 2020 presidential election? I think the view that I've shared here today is that [1:34:06] there was a certification process that resulted in Joe Biden being president. [1:34:10] Thank you. I yield back. Senator Schiff. Thank you, Mr. Chairman. [1:34:18] Mr. Smith, I believe that a lot of the corruption that we're seeing in the administration and the [1:34:24] White House traces back to a single decision of the Supreme Court granting the president immunity. [1:34:33] Absolute immunity when it comes to certain core functions of the executive, a qualified immunity, [1:34:39] as to other official acts. The only area where a president would be personally liable for prosecution [1:34:48] would be purely personal conduct, which is hard to imagine what that entails, given that the president [1:34:54] is president 24 hours a day. You were part of the president's legal team, defending the president, [1:35:02] articulating the president's position in Trump v. United States. I want to ask you about that. [1:35:07] In the court of appeals, John Sauer, one of the counsel for the president, [1:35:13] was asked by a court appeals judge Pan in the D.C. Circuit whether under your theory of the case, [1:35:21] his theory of the case, a president could order SEAL Team 6 to assassinate a political opponent [1:35:28] and not be subject to prosecution for it. Sauer's answer was effectively, that's right. [1:35:35] Unless he were impeached first, he would not be subject to prosecution. Is that your view as well? [1:35:40] I think a similar question was also asked at the oral argument at the Supreme Court a few months [1:35:45] later. I think the Supreme Court has now set forth a test in Trump v. United States that would address [1:35:50] that hypothetical situation, which based on my relationship, I might add, I think is outlandish, [1:35:55] and I see no reason to think that that hypothetical would ever be a possibility. [1:36:00] Well, so is it your view as well, as it was Mr. Sauer's, that yes, the president could assassinate [1:36:07] a political opponent and not be prosecuted for it if his party won't impeach him in the Senate? [1:36:13] I think Trump v. United States that you mentioned, Senator, now has addressed to some extent the [1:36:18] impeachment judgment clause, and that is set forth in the opinion it would be something that would be [1:36:23] bound as precedent to apply. Well, with my hypothetical, what's your answer? The president [1:36:30] orders SEAL Team 6 to kill his political opponent, one of them, maybe several, uses the military to do it, [1:36:37] so it's within the scope of absolute immunity. Is it your view that he is not subject to prosecution [1:36:43] for that if the members of his party will not impeach him? With that hypothetical or any hypothetical that [1:36:49] you might try to pose, Senator, I would just refer to the test that the Supreme Court has set out. [1:36:53] I'm asking you your view, so just tell me yes or no. Yeah, and I want to tell you that as a judicial [1:36:58] nominee, I don't want to prejudge any case regardless. Okay, well, I'm not asking you to prejudge. [1:37:03] I'm asking you to talk about your view and also what you argued, what you counseled the president in [1:37:09] that case. Did you make the argument as a member of the president's legal team that, yes, he could [1:37:16] assassinate his opponent if he used the military to do it, and if his party wouldn't impeach him, that he would be [1:37:22] protected? Yeah, so I can't get into any privileged conversations, as you know, due to attorney-client [1:37:27] privilege, but I would refer to you to the remarks that John Sauer had at the Court of Appeals and the [1:37:32] Supreme Court. Well, the remarks that he made were, yes, that's correct. He would be immune. [1:37:38] So I don't hear any disagreement with you. Do you disagree? I would disagree with your [1:37:43] characterization of how he responded to that question. I think he said it was outlandish, [1:37:47] he said it would not happen, and that there would be a process to hold someone like that accountable. [1:37:52] And I think that- The process, the question from the judge was, if he were not impeached first, [1:37:58] is that your position? And that was Sauer's position. It sounds like that is your position as well. [1:38:02] Let me ask you about a different part of the court's opinion, that is, that the only area where he's truly [1:38:07] liable is purely personal conduct. So let me ask you this, if a president uses their official position to [1:38:13] enrich themselves, is he immune or is that purely personal? So Chief Justice Roberts asked a similar [1:38:21] question at oral argument. I think the counsel referred him to the- I'm asking you. Yeah, I want [1:38:27] to refer you to the same place, the United States versus Brewster. Don't refer me, just answer the [1:38:31] question. In your view, if the president enriches himself through his office, is he immune or is that [1:38:38] purely personal conduct? Yeah, so I think the United States versus Brewster decision- Okay, you're not [1:38:43] answering the question. Let me ask you a different one, see if you'll answer that. If a president took [1:38:47] bribes to change the country's policy in the Gulf, purely personal or subject to immunity? Brewster [1:38:57] dealt with bribes, and in that case, the court said that a legislature could be- a legislator could be [1:39:02] prosecuted for bribery- We're talking about the president of the United States who has immunity now, [1:39:08] thanks to your work in part. So let me ask you another question. If a president demanded money from a [1:39:13] media organization in order to approve a merger, immune or purely personal conduct subject to [1:39:20] prosecution? Every hypothetical situation would be addressed by the test in Trump versus United States [1:39:24] on what type of immunity would apply- Yeah, so you're- you're not going to answer the question. Um, [1:39:29] what if a president falsely arrested a sufficient number of senators such that he couldn't be impeached? [1:39:37] Is there a remedy for that? Hey, for each of these hypothetical situations, the Trump versus United States [1:39:43] test would be applied, and some of those involved- Okay, the Trump in the United States test would be [1:39:47] applied, so the president is using the military to arrest members of Congress to prevent his [1:39:51] impeachment. What's the remedy? You need to these hypothetical scenarios, [1:39:57] Senator. The- the remedy is- What's- what's the remedy? The- the court would go through the different [1:40:02] types of presidential power that might be at issue. There's a different test for- He's- he's- [1:40:06] He's- he's- he's passed the test. He's got immunity unless he's impeached. That's what the court has [1:40:14] held. And he's not impeached because he can't be impeached, because he's arrested enough of the [1:40:20] Senate to prevent his impeachment, or even an impeachment proceeding. What's the remedy? [1:40:25] So, Senator, as I've said, for each hypothetical scenario you're trying to present, [1:40:29] the court would look at the different tests that the Trump versus United States would present. [1:40:33] I'm- I'm- I'm- I'm- I'm just going to have to conclude here that you don't want to express your view on [1:40:39] it because I think it's a shocking view. I think it was a shocking view that John Sauer expressed in [1:40:43] the court appeals. I think it's a shocking view that you hold that the president's authority is so [1:40:47] profound that he basically is above and beyond the law. That there's no remedy for a president who would [1:40:55] abuse his power the way we have already seen and I fear we'll see in the future. I think the Roberts [1:41:02] Court will go down in history. That will be their legacy as having enabled the worst form of corruption [1:41:08] we've ever seen in the Oval Office. And you'll be a part of the team that made that possible. I yield back. [1:41:15] Thank you. I would point out the implication that Mr. Smith can't be a good judge because he did his [1:41:18] job as a lawyer is ridiculous and did what every advocate would do for their client. And in fact, [1:41:24] the Supreme Court agreed with those arguments. And so I don't view it as a strike of against the nominee, [1:41:30] but rather a mark of distinction. With that, we've run out of senators to ask questions, Mr. Smith. [1:41:37] So thank you. I want to thank your family for being here. Yes, Senator Kennedy. [1:41:48] Counselor, you represented President Trump? I did, Senator. When you agreed to represent him, [1:41:56] did you triple your hourly rate? No, Senator. You didn't? You just billed him regularly? [1:42:03] Yeah, we are very grateful to represent the president of the United States. There was no inflation of cost. [1:42:09] It was a regular rate that we gave to other clients. That was a joke. But you handled it well. [1:42:18] Well, thank you, Justin, and thank you to your family. With that, will the nominees for the second [1:42:25] panel please come forward and stand before the witness table, and I will administer the oath. [1:42:32] Please raise your right hand. Do you swear that the testimony you're about to give before this [1:42:48] committee will be the truth, the whole truth, and nothing but the truth. So help you God. Thank you. [1:42:53] Thank you. Have a seat. It's our normal process. If you desire to introduce folks that are here with [1:43:00] you, including your family, and then you may or may not give an opening statement. It's up to you. [1:43:05] We'll start on my left and then move down the line. Mr. Kuhlman, the floor is yours. [1:43:11] Thank you, Senator Schmidt. Thank you to Chairman Grassley to Ranking Member Durbin and all the members of [1:43:17] the Senate Judiciary Committee for holding this hearing. I want to thank President Trump for the [1:43:23] great honor of this nomination. I want to thank Senators Marshall and Moran for those very kind [1:43:28] words of welcome. This is a professional honor of a lifetime. I'm the product of great people that [1:43:36] have been around me my entire life, so there's no way I can thank everybody who is entitled to it. [1:43:40] I'm not even going to try. I just want to acknowledge a few people. I want to thank my Lord and Savior, [1:43:46] Jesus Christ, for all the blessings that he's bestowed on me. Of those blessings, I can't think [1:43:51] of anything that brings me greater joy than my wife, Lauren, who is the greatest blessing I've [1:43:57] received. She's here today. She's been the best spouse you can ask for for 14 years, and there's no way [1:44:04] I'd be here without her. She's a great mother to the other great blessings in my life, my five children, [1:44:10] who did not skip school to come here, but who I want them to know that I love them, and there's [1:44:17] nothing I'm prouder than of being their dad. I want to thank my parents, Ann and Jerry, who are here in [1:44:23] person for their support today, and not just today, but every other day of my life. I want to thank my [1:44:28] in-laws, Robert and Sharon, for raising such a wonderful daughter, and then also for keeping my [1:44:35] children this week so that their wonderful daughter could be here with me. Again, I can't thank all the [1:44:40] professional colleagues in my life, but I do want to thank and acknowledge Judge Eric Melgren, [1:44:45] who's not only the judge whose vacancy I've been nominated for, but was the judge that I clerked for, [1:44:50] and who's been a great friend, example, and mentor for the last decade. It's truly an honor to be here. [1:44:56] It's an honor to sit here with Director Mativi and Judge Powell, two other men that I've known and [1:45:00] respect very well, and I look forward to answering any questions. Thank you. Mr. Mativi. Thank you. [1:45:12] Good morning, Senator Schmidt, Ranking Member Durbin, distinguished members of the committee. [1:45:17] I too would like to start by thanking President Trump for the tremendous honor of this nomination. [1:45:22] I'd like to thank Senators Marshall and Moran. I would not be here were it not for their support and [1:45:27] friendship. Thank you to Senator Roberts for his willingness to attend today and speak on my behalf. [1:45:33] Thanks also to my boss, the Kansas Attorney General, Chris Kobach, for his help and support both during [1:45:38] this process and in general in our combined efforts to keep Kansas safe every day. I would like to [1:45:44] recognize my family, as has already been introduced by Senator Moran. I have received accolades for my work [1:45:52] overseas assisting the Iraqis in reconstruction, but I want to point out that during that time, I left home [1:45:59] and left a wife behind with three small children and she's the one who managed the household. And when [1:46:03] people ask me what is my greatest accomplishment in life, it's those three kids. And I want to [1:46:09] recognize both them and my wife for the part that she has played in their development to adulthood. [1:46:15] I have friends here from almost every phase of my life, from high school, from paramedic school, from law [1:46:21] school, from my professional career, from my short and spectacularly unsuccessful political career, and [1:46:28] from my current occupation. I'm grateful to them for attending and I'm grateful for all of our friends [1:46:35] and family back home who are watching this, including my many wonderful colleagues from the Kansas Bureau of [1:46:40] Investigation. Senator, if fortunate enough to be confirmed, I will have the opportunity to return to [1:46:46] the court to the very courtroom in which I tried so many cases over more than two decades and to follow [1:46:51] in the footsteps of federal judges from the District of Kansas for whom I have tremendous respect and [1:46:56] admiration. I believe in the immutability of our constitution. In Iraq, I watched firsthand as that [1:47:02] country struggled and fought to emerge from generations of dictatorial rule and chart a path toward implementing [1:47:08] the rule of law. I know that the rule of law should not be taken for granted. It should be treasured. [1:47:13] It should be vigorously protected, especially in our federal courts. I will strive to be a judge who is [1:47:19] firm but fair. I will approach the law with reverence and the litigants with respect. I will work [1:47:24] every day to inspire confidence in the judiciary and the future of our country. Thank you again for [1:47:29] your consideration, senators, and I look forward to answering your questions. Thank you. Mr. Paul. [1:47:34] Thank you, Senator Schmidt, ranking member Durbin, and members of the committee. Thank you for the [1:47:42] opportunity to discuss my nomination to the United States District Court for the District of Kansas. [1:47:48] Obviously, you don't get to be in this chair without many people helping you out along the way in my life, [1:47:54] and I can't thank all of them today, but I do want to thank a few. [1:47:58] I want to thank President Trump for his nominating me to the federal bench. [1:48:03] It's a great honor, and I thank him for his confidence in me. I also want to thank our United States [1:48:09] senators, Senator Moran and Senator Marshall, for their support. No nominee that requires Senate [1:48:15] confirmation gets very far without the support of their home state senators. I also want to thank [1:48:20] Attorney General Chris Kobach for the confidence that he placed in me by bringing on him, me on into [1:48:27] his team as Solicitor General, and perhaps most importantly, I want to thank all my family members [1:48:33] and friends that are here with me today. They've come from far and wide. I particularly want to thank my [1:48:40] wife of 40 years. Anything that I've achieved in my life is due no small measure to her love and support, [1:48:48] and I love her very much, and I appreciate her and the family that we've built. We've had four [1:48:53] kids and six grandchildren, and that is my greatest legacy, and I'm very blessed to have her with me. I wish [1:49:02] my kids could be here, but they have lives and families to tend to, but I know they're watching [1:49:08] online. I'm also grateful to have other family members here today. My good friend Mark, who he and [1:49:16] I have been friends since the first day of law school, and we've shared over 30 years of friendship [1:49:21] together, and I also want to thank another special friend, my friend Brian, who's a high school friend [1:49:27] who lives and work here in Washington, D.C. It's one of the reasons why you want to become a federal judge, [1:49:34] is to serve your community, serve your loved ones, and do justice in America, and if I'm fortunate to be [1:49:41] confirmed, I'll do what I've done for the past 20 years when I was a state court judge, is to apply the law [1:49:48] fairly and without favor in every case. I'm happy to stand for the committee's questions. Thank you. [1:49:54] Thank you. I'll just, I'll start, and I'll just ask if each one of you can address it. I'll ask [1:50:01] a two-part question, I suppose, and then I'll turn it over to Senator Durbin. But, so, [1:50:06] how would you describe your political, I'm sorry, how would you describe your judicial philosophy, [1:50:11] very important distinction, your judicial philosophy, and can you identify a moment in your professional [1:50:18] life where, you know, things may have been difficult, but you did the right thing anyway, [1:50:25] you adhered to the law, even though it may have been unpopular? Thank you, Senator. I would describe [1:50:33] myself as an originalist and a textualist. That would be my approach to interpreting statutory or [1:50:38] constitutional provisions. I'm happy to explain that further if you would like, Senator. As for your [1:50:44] questions about standing up to hard situations, it's honestly hard to pick one. I've represented my [1:50:51] clients in high-profile cases and cases that had negative media attention and negative scrutiny, [1:50:58] and my clients have been really scared in those situations. I've had clients who have had death [1:51:03] threats in types of cases because of coverages, and often unfair coverage, that those cases were [1:51:09] getting. And it has truly been my professional honor to stand next to them, and to kind of, a lot of times, [1:51:17] stand in front of them, and be their public-facing voice, and to be the one advocating for them in [1:51:23] court, and to be the one preparing them and telling them it's going to be okay, and standing with them [1:51:28] in court or in a deposition. I've come across that situation probably more times than I can count. [1:51:36] And then, on the flip side of that coin, the other hard thing is, I've had clients who [1:51:41] have had real problems, who've had exposure, who I needed to counsel strongly and firmly about [1:51:51] how to proceed in the issues with their case. And, you know, a lot of times people want their lawyer [1:51:55] to tell them what they want to hear, and a lot of times being a good lawyer involves telling your [1:52:00] clients what they don't want to hear, and I've done that more times than I can count to. [1:52:03] Mr. McEvey. Senator, I would describe my judicial [1:52:09] philosophy as textualism when it comes to interpreting statutes and originalism when it comes to interpreting [1:52:15] the Constitution. It was Justice Scalia who I believe made that distinction, at least as I'm aware of it, [1:52:22] and I agree with that distinction. That's the distinction that I would follow on the bench. [1:52:26] With regard to an act of courage, I would cite you to something that has happened fairly recently in [1:52:31] Kansas, and I can't comment on the specifics of the investigation because there is litigation pending, [1:52:37] but avoiding the specifics and just talking about what happened, it would be an effort that we [1:52:42] undertook recently, meaning the Attorney General's Office and the Kansas Bureau of Investigation, [1:52:46] to enforce marijuana laws in Kansas that had not been enforced since the passage of the Farm Bill. [1:52:53] And I knew that that wasn't going to be popular with certain segments of the political spectrum. [1:52:58] I knew it wasn't going to be popular with the public, and I knew it would draw a tremendous amount [1:53:03] of backlash, but nevertheless, based on the science that we were seeing, based on the harm that we were [1:53:08] seeing, it was undoubtedly, in my mind, the right thing to do. And as a result, that's what we did. [1:53:18] Senator, like the others, I agree I'm a textualist when it comes to statutory construction and an [1:53:24] originalist when it comes to the Constitution. With regard to a difficult case, I can recall one when I was [1:53:31] on the Court of Appeals where this defendant had been convicted of murder, first-degree murder, [1:53:37] and sought habeas relief, asserting ineffective assistance of counsel. And his counsel's performance [1:53:47] was deficient. And in fact, it was deficient enough to undermine our confidence in the outcome of that [1:53:54] trial. And so we vacated his conviction and ordered a new trial. Even though there was strong evidence, [1:54:02] any time you let someone who's been convicted of murder go, that's always a difficult thing to do. [1:54:08] But it was what the law required, and that's what we did. Senator Durbin. [1:54:16] Thanks, Mr. Chairman. Mr. Powell, 35 years ago, I introduced an amendment in the House to ban smoking on [1:54:27] airplanes. It passed bipartisan vote, and it started an effort to stop big tobacco from selling its dangerous [1:54:37] product to our children and a lot of others in America. It resulted in attorneys general from across [1:54:44] many states joining together in lawsuits to hold the tobacco industry accountable for their lies where [1:54:51] they refused to acknowledge the deadly addiction that tobacco caused. It took years and years and years [1:54:59] for those lawsuits to move to a point where finally tobacco was brought to its knees. And above all, [1:55:07] they stopped their merchandising to children in our country. I think that made America better. At the [1:55:15] time, about 25 percent of school children were smoking. 25 percent. And today it's less than 5 percent. [1:55:23] There are still problems with vaping and the like. But I think that settlement made a difference. [1:55:28] And I wondered if there was anyone across America who would stand up and speak out against that settlement. [1:55:34] Turns out it was you. You're quoted as saying, it's not politically correct to criticize the tobacco [1:55:41] settlement. But I am not willing to junk 500 years of common law in exchange for a pot of gold. Can you [1:55:48] explain that? Yes, Senator. My main complaint with the settlement was particularly the attorney fee [1:55:57] provisions. There were provisions in the settlement agreement which provided for huge monetary payments [1:56:06] to the attorney general's local counsel. And it far exceeded what would have been reasonable for [1:56:13] attorneys to receive in terms of pay. I think it was 27 million that the lawyers and local counsel [1:56:20] received. And literally the only thing they did was to file the complaint. That was my principal complaint [1:56:25] with the settlement, Senator. The quote I've been given does not include any reference to lawyers fees. [1:56:32] It's opposition to the settlement. Did you have any opposition to the settlement per se? [1:56:42] Not principally. My principal complaint, Senator, was opposition to the attorney fee provision. [1:56:48] Let me ask the other two individuals before us today. Thank you for being here. [1:56:55] You both have a connection to the August 2023 law enforcement raid on the Marion County Record, [1:57:02] a newspaper in Kansas in a very small town. The incident received national coverage and outrage [1:57:09] over a violation of freedom of the press. Mr. Mativi is Kansas Bureau of Investigations director. [1:57:15] You initially supported the raid, stating days afterwards that your agency needed to be able to [1:57:21] investigate, quote, credible allegations and, quote, no one is above the law, whether a public [1:57:27] official or representative of the media. After widespread criticism of the raid, KBI took over the [1:57:33] investigation and announced five days after the raid that all of the seized materials would be [1:57:39] returned to the newspaper. So I'd like to ask you several questions that the two of you should [1:57:45] address if they apply. Did the KBI have any role in the raid on the Marion County Record? And based on [1:57:51] this incident, has KBI made any changes in how it approaches investigations involving the press? [1:57:57] If you're confirmed to the bench, what factors will you consider if you're asked to sign off on a warrant [1:58:02] authorizing the search of a press outlet? I didn't include one important fact. There was a judgment [1:58:08] on behalf of the Marion County Record of $3 million for this raid. Mr. Mativi, would you like to start? [1:58:17] Yes, Senator Durbin. Thank you. The media reports at the outset of this event talked about the KBI [1:58:27] being involved in the raid and in fact even represented the KBI led the raid. Ultimate facts [1:58:33] determined that that was not the case at all. There was no KBI agent present on the raid. I have to be careful [1:58:40] about talking about the raid itself because there is still litigation pending. What I would point out [1:58:44] to you, ranking member, and to everyone else is that of all of the litigation that took place in that [1:58:49] case, the KBI was not a party to any of it. And I think that demonstrates conclusively what the KBI's [1:58:55] involvement in the raid was. With regard to the First Amendment and the protections afforded under it, [1:59:01] I believe they are a foundational underpinning of our society. I believe that the press is absolutely [1:59:06] protected under the First Amendment. At the same time, I believe that the press is not above the law, [1:59:11] nor is any individual. I don't believe those are mutually exclusive. I believe they both can be true. [1:59:16] I believe they both are true. And that would be my stance on the bench. [1:59:21] Thank you. Mr. Kuhlman, would you respond? [1:59:24] Yes, Senator. So in the Marion County cases, I was retained after the raids happened to represent [1:59:30] the Marion County Sheriff's Office and the Marion County officials that were defendants or potential [1:59:36] defendants. My clients were the ones who entered into that consent judgment that you referenced [1:59:42] that resulted in the payment of $3 million. My understanding is that those other, there were [1:59:47] several different plaintiffs who were affected and have filed suit against the city that was also [1:59:54] involved in that event. That litigation is still pending. So like Director Motivi, I hesitate to [2:00:02] comment too much on the pending litigation. But if fortunate enough to be confirmed, I believe the [2:00:06] First Amendment is a foundational principle of our Constitution. I'm a strong believer in it. [2:00:11] And I will apply the binding precedent regarding the First Amendment fairly and faithfully. [2:00:18] Thank you. Thank you, Mr. Chairman. [2:00:20] Thank you. Thank you, Senator. Senator Kennedy. [2:00:22] Thank you, Mr. Chairman. Mr. Kuhlman. Have you ever been to Manhattan? [2:00:30] Manhattan, Kansas? No, sir. Manhattan, New York. [2:00:33] I have not. Okay. Are you familiar with, [2:00:37] maybe you've seen it in the movie, Third Avenue, Midtown? [2:00:41] Only by reputation. Okay. Well, it's a major east or north-south [2:00:48] traffic corridor. Very busy. A lot of traffic. I don't know if you saw the news yesterday, [2:00:56] but about 200 protesters in New York sat down in the middle of Third Avenue, completely blocked [2:01:08] traffic. They were wearing t-shirts that said, no war, no ice, free Palestine. Completely shut [2:01:18] everything down for about an hour. Police had to come in. They arrested some of them. This is New York. [2:01:25] Nothing will probably happen to them. But the point is it blocked traffic severely. Let's suppose [2:01:36] a medical transportation service was trying to get a heart to a transplant patient in a hospital nearby. [2:01:50] And obviously the traffic jam delayed him and the patient died. You with me? [2:01:56] Yes, Senator. All right. Does the patient's family have a cause of action against the protesters or [2:02:05] the leader of the protest? In any hypothetical, I would hesitate to completely prejudge the situation [2:02:13] without knowing all of the facts. Come on, counselor. Give me your [2:02:17] legal opinion. This is a first-year law student question. I believe they would, more than likely. [2:02:24] I think that would be a matter of- What would be the issues that would arise? I just want to understand [2:02:28] how you think. Sure. I think that would be- If you're defending the leader of the protest, [2:02:32] what's the first thing you're going to say? I'm defending the leader of the protest? Yeah. [2:02:36] I would probably argue about causation and foreseeability. I mean, that would be really a [2:02:41] state law negligence type of- What do you mean causation? Well, for any negligence claim, one of the [2:02:47] elements is, you know, you have a duty to somebody. Did you breach that duty? Did you cause them an injury? [2:02:56] And part of the duty causation calculus is how foreseeable that injury was. Okay. What's the [2:03:01] difference between legal causation and proximate cause? So- Cause in fact and proximate cause. [2:03:08] Yeah. Yeah. So cause in fact is the specific cause of death, uh, or injury rather. And in this case, [2:03:17] it would probably be whatever heart ailment this poor person that you've described had would probably [2:03:22] be the cause and fact of his death. But proximate cause does not always have to be the cause in fact. [2:03:28] And there can be multiple causes. So, um, a proximate cause is, but, you know, but for this thing [2:03:35] happening, this injury may not have occurred. Okay. And- I got it. Good. Um, Judge Powell, um, [2:03:42] you said you're, you're a textualist? Yes, sir. What does that mean? It means you follow the words of the, [2:03:50] of the text of the statute. Okay. Uh, what if the, the, uh, the text of the statute's not clear? [2:03:57] What do you do? Well, one of the approaches that I do use is I want to look at the language [2:04:03] and context of the statute as a whole and try to harmonize the language. Uh, I may use, [2:04:10] go to dictionaries to help me find definitions of words. Uh, well, how ambiguous does the statute [2:04:17] have to be before you're going to look to secondary sources? Well, ambiguity means it, the, the language [2:04:26] is subject to one, two or more interpretations. And so if there's language- Reasonable interpretations. [2:04:33] Correct. Well, I mean, does the, does the, does it have to be 50% ambiguous or 52% or 51%? [2:04:44] Well, I'm not sure how to apply the 51 to me ambiguity. That's what I'm asking you is how you [2:04:52] apply it. Well, ambiguity means that the words that are used are susceptible to two or more [2:04:58] different definitions. That's, so I don't know whether that's 50%. Why do you go, I'm not suggesting [2:05:04] you're wrong, but why do you go through that exercise? Why, why do you want to spend hours agonizing [2:05:10] and debating how many lawyers can dance on the head of a pen to just try to decide whether it's [2:05:16] ambiguous? Why don't you just go look at the statute and also go to the secondary sources? [2:05:22] Well, that's what I do, Senator. But you only go if it's ambiguous. [2:05:27] Well, because the plain words of the, the words, you know, the plain meaning of the words in front of [2:05:32] you is, are what guide you. And you, you apply the common understanding of the words. [2:05:38] I guess what I'm asking you is, Your Honor, what, why? Don't you want to just, don't you want to [2:05:44] look to the, the problem that the legislature was trying to solve? Why do you want to be a slave [2:05:51] to the plain words that reasonable people can disagree of? Why don't you just start with, [2:05:56] I've got a statute. Um, let me see what problem the legislature was trying to solve [2:06:03] in, in, uh, in interpreting the statute. I have done that, Senator, and I don't disagree with that [2:06:08] approach, but. But you said you were a textualist. You don't even get to that approach unless the [2:06:13] words are ambiguous. Correct. I agree with that. I know. So which is it? Well, you look at. Do you [2:06:20] always, are you always a slave to the words and the debate about plain meaning? Or do you step back [2:06:28] and go, plain meaning or not, I want to look at, at, at the problem the legislature was trying to solve. [2:06:34] Which, which is it? Well, Senator, the best way to understand [2:06:38] what the legislature intended. Yeah, but the first, then he, the, [2:06:41] the, our chairman's a great guy. He's, he's like awesome. He's going to cut me off anyway. [2:06:46] Uh, tell me which one you use. Senator, as I'm trying to say, [2:06:52] when you're trying to discern the legislative intent, you first look at the words the legislature [2:06:58] itself used and you apply. And let's suppose, let's suppose they're plain, they're plain to you. [2:07:05] I'm sorry, what? Let's suppose the words are clear. Okay. Why don't, why, you would stop there, [2:07:11] right? You apply the words. Yes. Okay. Why? Why don't you go, well, you know, I want to get this right. [2:07:19] So let me, let me adopt a belt and suspenders approach, even though the words are plain, [2:07:24] let me delve into the legislative history and try to understand what problem the legislature is [2:07:30] trying to solve. Why not do that? Because the language tells you what it is they're trying to [2:07:35] do and what it is they want to solve. You can't go further than, than the language of the statute. [2:07:40] Well, again, Senator, if there's some doubt, when you look at the words in context. Even if there's no doubt. [2:07:45] Not a doubt in your mind. That's why you, because you're carrying out the will of the people. [2:07:50] It's the will of the people that's expressed in the pages. No, you're trying to, you're trying to apply [2:07:55] a statute passed by the legislature. Correct. Okay. Um, can I ask one more? Um, [2:08:03] tell me how to say your name, your last name, sir. It's Mativi, Senator. Mr. Mativi. I'm 17 [2:08:11] and I go to work for McDonald's, go to apply for a job and I'm wearing a, uh, a burka. And, uh, [2:08:23] the McDonald's manager says, I really want to hire you, but, uh, we don't allow religious symbols [2:08:31] at my restaurant, uh, uh, or at our restaurants. Uh, what does the law say about that? [2:08:39] Uh, the law prohibits the, the application of a religious test applied by the government, [2:08:48] right? Not by private employers. So I would say that's the basis. Are you sure about that? [2:08:54] Well, it depends on whether, I mean, there's, there's other factors. Can, can, let me just ask you, [2:08:59] can McDonald's say we have a, we have a policy against religious symbols and you can't wear a [2:09:05] burka? Who's going to win McDonald's or the, the person wearing the burka? Honestly, Senator, [2:09:14] I'm not sure who would win in that situation. I'd need to know more. I appreciate your honesty. [2:09:18] Thank you. Thanks for your indulgence. Uh, Mr. Chairman. Anything for you, Senator. I especially [2:09:24] appreciated your commentary and listen carefully, Eric, and you're right about courage. It's, it's, [2:09:31] it's easy to play to the crowds, but, uh, when the going gets tough and you got to follow the law [2:09:41] and it's not going to be, be, uh, popular, that's what the rule of law is all about. [2:09:47] That's right. That's right. Thank you, Senator. Um, okay. I want to thank the nominees, uh, for your [2:09:52] testimony here today. Written questions for the record may be submitted until April 22nd at 5 p.m. [2:09:59] This hearing is adjourned.