Durbin pressed the nominees on whether the Executive Branch is required to follow federal court orders
WASHINGTON – U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, today questioned five judicial nominees in a Senate Judiciary Committee nominations hearing. Durbin first questioned Whitney Hermandorfer, nominated to the U.S. Court of Appeals for the Sixth Circuit, if her loyalty would be to the rule of law and the Constitution or to the president, if confirmed.
“Under Article III, is your loyalty is to the law and Constitution or to the president who nominated you?” Durbin asked.
Ms. Hermandorfer responded, “Under both Article III and Article VI—the Constitutional Oath, the oath is to faithfully follow the laws that apply in a given case.”
Durbin followed up, “And the Constitution?” to which Mrs. Hermandorfer responded, “Absolutely.”
Durbin then asked if the Executive Branch is required to follow the orders of a federal court.
Ms. Hermandorfer responded that if you disagree with an order you can seek “a stay or emergency relief or appellate review.”
Durbin then asked Ms. Hermandorfer about an amicus brief she submitted to the U.S. Supreme Court on behalf of Tennessee in support of the Trump Administration in Trump v. CASA. That case involves a challenge to President Trump’s unconstitutional executive order that purports to end birthright citizenship. President Trump’s executive order has been blocked by a judge, appointed by President Ronald Reagan, who said, “I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is… This is a blatantly unconstitutional order.”
“The state of Tennessee was not a party to the case. You filed this amicus brief voluntarily. You reached a conclusion which the court ruled the most blatantly unconstitutional order in decades. Why?” Durbin asked.
Ms. Hermandorfer responded that amici were merely bringing “additional information that could be helpful to the Court’s attention” about the Fourteenth Amendment and that Tennesseans “were not satisfied” with the information provided to the Supreme Court about the Fourteenth Amendment.
Durbin then asked about President Trump’s recent comments on the Federal Society and specifically, Leonard Leo.
“You heard my opening marks perhaps when I relayed my experience with the so-called Federalist Society. I asked judicial nominee after nominee ‘why do you belong to this group?’ It became pretty clear [that it was] because this was the secret handshake, the calling card if you wanted to be considered favorably to be a Republican nominee for a federal judgeship. Well, they seem to have fallen into disfavor with President Trump. Leonard Leo has been characterized by the president as a ‘sleazebag’ and he went on to say some other negative things about the Federalist Society. So now there's a new operation called the Teneo Network? Are you familiar with the Teneo Network?” Asked Durbin.
Ms. Hermandorfer responded that she was familiar with the Teneo Network but did not realize it was created by Leonard Leo.
Durbin pressed Ms. Hermandorfer on why she would want to be part of a club that is lead by someone the President called a “sleazebag.”
Ms. Hermandorfer responded only that the Teneo Network is a networking group.
Video of Durbin’s questions to Ms. Hermandorfer in Committee is available here.
Audio of Durbin’s questions to Ms. Hermandorfer in Committee is available here.
Footage of Durbin’s questions to Ms. Hermandorfer in Committee is available here for TV Stations.
Durbin then asked Joshua Divine, nominated to the U.S. District Court for the Eastern and Western Districts of Missouri, about his anti-choice views—noting that Divine even called himself a “zealot” forthe anti-choice movement. Durbin asked if he believes IVF embryo is considered a person.
Mr. Divine dodged the question and instead said, “That is obviously a hotly litigated issue and hotly disputed issue right now so I cannot, under the judicial canons of ethics, talk about those kinds of political dispute.”
Durbin continued to say, “After Alabama made that fateful ruling saying that an IVF embryo was a person, there was an effort by most mainstream people in politics in both parties to clarify their position on in vitro fertilization including, the current President of the United States. The fact that this panel and Mr. Divine is struggling with that unfortunately is a tell as to what we can expect from you if the nomination is approved.”
Durbin then asked all the nominees if the Executive Branch of our government should define a court order.
Mr. Zachary Bluestone, nominated to the U.S. District Court for the Eastern District of Missouri, dodged the question by stating, “I would have to take caution in answering that question. This is a highly litigated issue right now. I would echo what we heard earlier in the hearing today that generally speaking that is, of course, the rule.”
Mr. Divine said, “My understanding of the doctrine is it is almost always required that you obey a court order.” But also continued to say there is a “doctrine of exceptions.”
Durbin asked the remaining nominees on the panel including Maria Lanahan and Judge Cristian Stevens, both nominated to the U.S. District Court for the Eastern District of Missouri, the same question.
Ms. Lanahan responded that she “would agree that the typical rule is that parties before a court are bound by that court order… As a general matter, that is correct.”
Judge Stevens responded, “As a judge, I do expect parties to follow my orders. There have been references to other narrow exceptions to that rule. Frankly with almost four years on the bench, I have not encountered those exceptions.”
Durbin responded, “I want to make this clear— if you have a court order applying to you, you have to follow it or appeal it... I’m asking you whether that is part of the rule of law in America and I think it is, isn’t it?”
Judge Stevens responded that there is process in his court and if the litigant doesn’t like a decision, they can ask for transfer from the Missouri Supreme Court.
Video of Durbin’s second round of questions in Committee is available here.
Audio of Durbin’s second round of questions in Committee is available here.
Footage of Durbin’s second round of questions in Committee is available here for TV Stations.
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