Protecting American Citizenship and America 250

morning everybody

morning

welcome to meeting we have uh two panels the first panel features daniel domico uh who is nominated to the us court of appeals for the tenth circuit our second panel has two nominees mathew byrne to be judge of the us district court for the district of uh southern district of ohio costa ligrich uh is the assistant attorney general for the office of justice programs in a moment i'll turn to visitors to introduce these people first i'd like to say a few words the american people deserve to have critical roles of government filled with capable people in a timely fashion as chairman i've ensured efficient consideration of nominations and under my chairmanship this congress we've processing judicial nominations at a historic pace in fact if you look at the time between nomination and confirmation we've advanced and confirmed article three judges faster than any times since ronald reagan's presidency in twenty twenty five and twenty twenty six we've advanced and confirmed circuit judges nearly twice as fast as during the first trump and biden administrations and we've even had greater success with district court nominations where we have tripled the pace of the first trump administration under my leadership this committee has delivered for the american people and i wanna thank all of my colleagues on this committee and people that aren't on the committee for their support and collaboration of advancing these nominees i also wanna thank president trump uh he continues to select highly qualified individuals to fill important roles in our courts and in the justice department and that makes my job of leading the confirmations process easier today's nominees nominees are part of that continued and welcomed trend Both of today's judicial nominees are already sitting judges. Uh Judge Domenico is a a federal judge, district judge in Colorado, and Judge Byrne serves on Ohio's twelfth district court of appeals. It's hard to imagine better experience for federal judgeships than those of you that have prior prior experience. they already know what it takes to do the job of judging and their track record speaks for itself today we'll be also going to hear from mr. ligris uh who has been nominated to lead the office of justice programs his nomination is a breath of fresh air from this standpoint because for years both republicans and democrats have complained about the office of justice programs. That office has uh seen very bad bureaucratic delays in getting grants to law enforcement, to victims of crime, and the public, uh most vulnerable citizens. I think everyone can agree that the grant application process needs improvement. and this nominee brings a unique background in management the law and technology that may actually fix the problems in that division i look forward to hearing from here him and these other nominees as well senator derbit

thanks mr. chairman and congratulations to nominees the next time this committee meets it will be to consider the nomination of mr. blanch is president trump's former personal lawyer and in his role as deputy attorney general and acting attorney general he has continued to play that role throughout his tenure at the justice department mr. blanch has used the department as a shield to protect the president and his mega allies and a sword to attack the president's opponents he's led the cover-up of the epstein files As former Attorney General, Pam Bondi herself has explained, mister Blanch was quote, "in charge of the process and the entire release of the Epstein files". Mister mister Blanch also established the one point eight billion dollar slush fund for January sixth cop beaters. And mister Blanch personally signed a document to provide the president and his family and his businesses with immunity, immunity from federal tax law violations immunity mister blanche has treated the justice department like a criminal defense firm whose sole client is donald trump and he has abused the awesome prosecutorial power of our nation's top law enforcement agency to target anyone who dares to cross the president this includes baseless and vindictive investigations or indictments of members of the federal reserve former fbi director james comey and the southern poverty law center to name a few the president and mister blanchard's efforts to fill the department with loyalists extend far beyond washington they have reported repeatedly bypassed this committee to illegally appoint us attorneys whose resumes prove their devotion to the mega movement rather than any experience or integrity this leads me to the subject of blue slips Last week, Chairman Grassley stated that as long as he is chairman, this committee will continue to require blue slips from home state senators before considering district judges and US attorney nominations. I am thankful that Ch- that Chairman Grassley shares my commitment to preserving the blue slip. But the chairman inaccurately accused Democrats of obstruction for refusing to return blue slips for some nominees. Now the rest of the story. For the past eighteen months, the committee has considered nominees to fill dozens of judicial vacancies in red states that republican senators held open for years by refusing to return blue slips during the previous administration. Many senate republicans, though not all engaged in unprecedented obstruction despite good faith efforts by the biden white house to fill vacancies. Consider this. During the trump administration, senate democrats returned the first trump administration, senate democrats returned a hundred and thirty blue slips for trump district court nominees this led to the confirmation of eighty four of these nominees almost half of all the trump district court judges in his first term however during the biden administration senate republicans returned only fifty four blue ships one thirty for democrats fifty four for republicans leading to the confirmation of thirty two district court judges less than thirty percent of all biden district court judges while i encourage senate democrats to work in good faith with this administration to fill vacancies in their state, it needs to be a two-way street. This administration's approach frequently involves the President or White House announcing nominees as a take it or leave it proposition with zero prior consultation with home state senators. The Trump administration has tried to install nominees in U. S. Attorney's office in states like New York, New Jersey and Virginia with no attempt to consult the Democratic senators representing those states. many of these individuals have been disqualified from serving as us attorneys after courts found their appointments were unlawful and many are simply unqualified to serve as us attorneys including individuals with zero zero criminal experience and whose principal qualification is political blue slips are an important part of the senate's constitutional duty of advise and consent and in the face of lawless administration they help senators defend the integrity of us attorney's offices and the independence of our judiciary

thank you um sen- senator cruz cannot be here to uh introduce judge dominico so he asked me if i would read his statement well he says welcome judge circuit judges occupy a unique place in our constitutional system they do not merely resolve individual disputes they establish precedent that governs millions of americans across the entire region of the country the tenth circuit decision shapes the laws of colorado kansas new mexico oklahoma utah and wyoming for many litigants the circuit court is the final word that responsibility requires judges of exceptional intellect sound judgment humility and fidelity to the law judge uh career reflects those qualities he is a native of colorado born and raised in boulder he graduated from georgetown university university of virginia school of law where he distinguished himself as editor of the virginia law review he clerked for then judge tim timikovitch of the tenth circuit served at the department of the interior and became the youngest state solicitor general in the nation i first came to know dan during his years as colorado's solicitor general solicitors general from around the country form a relatively small professional community we regularly litigate some of the most significant constitutional questions affecting the states and the nation reputations in that community are earned over years of advocacy professionalism and integrity during his nine years as solicitor general dan earned a reputation for intellectual rigor careful judgment and fairness. He represented administrations led by both Republican and Democrat, and he did so with distinction. Indeed, two governors from opposite political parties have submitted a letter to this committee, praising his fidelity to the law, his fairness, and his commitment to public service. That bipartisan respect is increasingly rare. and it speaks volumes. i can personally attest that dan enjoyed that same reputation among his colleagues around the country even lawyers who disagreed with him on questions of policy respected him as a serious lawyer who approached every case with professionalism preparation and intellectual honesty being solicitor general of colorado is no easy task it requires defending the laws of the state navigating difficult constitutional questions and representing the people of colorado before state and federal courts dan did that job exceptionally well but dan's record of service extends beyond his professional accomplishments i also had the opportunity to know dan and his wife personally during those years personal service demands sacrifices from families and few examples illustrate that more clearly than their decision to welcome a young brother and sister from the foster care system into their home and ultimately adopt that is no small undertaking it represents generosity compassion and a commitment to family that deserves recognition since taking the bench as a federal district judge judge dominico is uh has continued to demonstrate the qualities that made him such an effective advocate diligence fairness humility and respect for the proper role of the judiciary our nation's need judges who understand that their duty is not to make policy but to faithfully interpret and apply the law as written judges who understand that the constitution belongs to the american people and not to the judiciary based on his record of public service his years on the federal bench and my own experience knowing him personally and professionally i am confident that judge domenica will uh possess the intellect, temperament, integrity, and judicial philosophy necessary to serve with distinction on the tenth circuit. This nominee is exceptionally well qualified for this position. He has earned the respect of lawyers across the ideal ideological spectrum, the confidence of leaders from both political parties, and the admiration of those who know him personally. i strongly support his nomination and i urge every member of this committee and every member of the senate to do the same the end of senator durbin's uh senator n. z.'s statement

cruz cruz

yeah

hmm

uh

so i ask uh unanimous consent that a statement uh by senator michael bennett who could not be with us today be entered into the record

yeah without um without uh comment thank you uh let's see senator hustead you're next

thank you mr. chairman and to you and the ranking member and members committee thank you for giving me the opportunity uh to introduce uh uh the honorable matthew byrne uh i've known uh for a while and over the course of his career judge byrne has uh earned a distinguished reputation as a hard-working, thoughtful, and fair judge. He has remained dedicated to upholding the reputation of the court and the rule of law. Judge Byrne's accomplished legal career began

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by attending two fine Ohio universities. He graduated magna cum laude from Xavier University in two thousand three, and then received his JD from Ohio State University in two thousand seven. During his time at both institutions, he consistently performed volunteer work and public service, demonstrating his strength of character and commitment to his community. After graduating from law school, Judge Byrne spent several years in the private sector practicing law at Taft Stettinus and Hollister and Jackson Lewis. During this time, uh, during his time at these firms, Judge Byrne developed a sterling reputation, being named to Super Lawyers Rising Stars, to, to the Super Lawyers Rising Stars list nine consecutive years. Over the past five and a half years, Judge Byrne has served the State of Ohio honorably as a judge in the twelfth district court of appeals. Hearing cases from eight counties in southwestern Ohio, he decided more than eight hundred appeals and uh, had written majority concurring and dissenting opinions in nearly two hundred and fifty cases. He has recogni- he's been recognized for his leadership and expertise by being selected to train new judges by the Ohio Judicial College and by being elected presiding judge of the court. Judge Byrne is not only a distinguished legal scholar, but also a loving husband and father. He lives in Deerfield Township with his wife of eighteen years, and their three kids who are here today. Uh, and I am certain that Judge Byrne will continue to serve the people of Ohio with honor and distinction uh in his new role as United States District Judge from the Southern District of Ohio should my colleagues confirm him a confirmation, I strongly support. Uh, Judge Byrne, thank you for being here today and and thank you, Mister Chairman and and members of the committee for allowing me to introduce uh Judge Byrne. Thank you.

Thank you, Senator Husted, and you may leave if you want to or stay if you want to. Senator Moody.

Thank you, Mr. Chairman. Good to see you, Senator Husted. I have the distinct pleasure of introducing this morning, Mister Costa Ligris. He is a lawyer, a businessman, and a technologist. Uh, when I was the Attorney General of Florida, I was constantly engaging with associations around Florida with attorneys in the private sector, asking them to personally evaluate what this country, what our state had given to them in terms of opportunities for success, um, and evaluate what they might do to come into government service and give back using the expertise and work experience that they had acquired over the course of their successful career. And so this morning, I get to introduce someone who is doing just that, which I spent years trying to recruit people to do. Mr. Ligris has worked in law and financial services industry, combining his skills and education to innovate and lead. And I know that is what he's going to do upon his confirmation at the Department of Justice. Mr. Ligris brings extensive experience in legal compliance, risk management, data privacy, and the governance of complex regulatory environments. Uh, over the course of his uh career legal career, he has um worked in all of those areas. At at the start of his career he did criminal law, a general, a litigation, transactional law, and then he went on to build and lead one of New England's largest real estate law practices. And he um oversaw that to success. Beyond his legal career, he has experience in technology and finance, a track record that provides him with a deep operational expertise in technology commercial commercialization. federal regulatory compliance, data privacy, and security. In two thousand sixteen, he served in multiple roles at MIT Sloan School of Management, and one is the longest tenured entrepreneurs in residence at the MIT Martin Trust Center for Entrepreneurship. Today, he is a senior lecturer at MIT Sloan, where he teaches courses on entrepreneurship. And as if I needed any more credentials to convince, uh, my colleagues to support him or those in attendance or Americans watching today, that this is the kind of uh private experience that we need in house, in government, to bring up to speed the efficiency and performance and accountability of our agencies, let me go on. He also holds a BS in human physiology from Boston University. He earned his JD with honors from Suffolk University Law School, where he served on the dean's cabinet and a university trustee got his MBA from MIT Sloan School of Management, and received an MS in information systems and cyber security from the University of California, Berkeley. I could go on and on about all of the experiences that I have had working in government and seeing what it means to the success of our agencies and our accountability to those that put us in office to deliver and be efficient and succeed in what we promise to do um I wish I could give you every single um performance metric where I saw someone that came in with fresh eyes the right experience, and they will be able, they were able to serve the people that trust us in these roles, uh, using all of that and hit those metrics, hit that accountability, uh, that the people so desperately want right now. Every day, not a day goes by that we don't hear dealing with one of our grant programs, or some government program, uh, of, of fraud or inefficiency or waste or abuse, And the people don't want just to learn about these things and for us to uncover them. They want us to do something about it. And so we've got to bring in great people. And so that is why it is my absolute honor to introduce to my colleagues here today, Mister Costa Ligris, as President Trump's nominee to serve as Assistant Attorney General for Office of Justice Programs. I know he will serve the people uh well, uh using everything that he has learned over the course of his incredibly successful career. And I not only introduce him, but I encourage my colleagues to support him and the American people to realize, uh, what this administration is doing to make sure we are living up to the demands and expectat- expectations of the American people. Thank you so much, Mister Chairman.

Thank you, Senator Moody. Now would Judge Domenico come to the table, please, and before you sit down, I'd like to, uh, administer the oath. uh do you swear that the testimony you're about to give before this committee will be the truth the whole truth and nothing but the truth so help you god thank you uh now the floor is yours to say whatever you wanna say but most of our nominees take time to uh talk about family and friends and supporters and so the the floor is yours

Thank you, Chairman Grassley. Thank you.

Maybe move the microphone straight to your mouth. Thank you.

Is that better?

Yes.

Uh, I can hear it better. Thank you. Sorry about that. Thank you, Chairman Grassley, Ranking Member Durbin. Members of the committee, uh, thank you for this opportunity. I want to of course thank the President for the honor of this nomination. And I also wanna thank the members of this committee and of the Senate for their careful consideration of it. Having received the Senate's advice and consent, uh, to a prior nomination is perhaps the greatest, uh, professional honor I've received. It's something I take very seriously, uh, and I'm grateful to have the opportunity to receive it again. Uh, there are a number of people here, uh, to support me. I'm grateful for all of their support and presence. They include a number of my, uh, current and, uh, former clerks and others that i worked with over the year uh over the years thank you all for your hard work and thoughtful efforts i know i would not be here without all of you uh my wife janelle is here she is the unsung star and the glue of our family and i would not be in this position were it not for her wisdom dedication and relentless hard work for me and our family uh we will be celebrating twenty six years of Later this summer, she has sacrificed a lot for me and our kids, and I am eternally grateful for her and to her. Our children, Ellie and Michael, are both home in Colorado, involved in uh important summer jobs and volunteer projects, and couldn't be here today. But I do wanna take a moment to say how blessed I have been that God brought them into our lives, first as foster children and then uh now we're adoptive children. how much i have learned from their example over the years of overcoming obstacles about perseverance about love and about family i am very proud of what they have become and very excited to see where they take their lives in the future uh my parents ben and fran also could not make it here today but they are watching from the home i grew up in back in colorado uh my father is a retired astrophysicist my mom had the much more demanding and challenging job as a public middle school teacher and counselor. I want to thank them for all the advantages, guidance and wisdom they provided me and my siblings with over the years. Finally, I hope you'll just allow me a moment to say a few words about Judge Timkovich, whose seat I am, uh, being nominated to, uh, take. A number of his former clerks are here, including I think uh Congressman Jeff Hurd may have had to leave, but he was here. Uh, all of us former clerks of Judge Timkovich are incredibly grateful for the opportunity to have worked for Judge Timkovich. I went to work for him over twenty years ago. Literally every uh everything in my professional career since then is thanks to his mentorship, friendship, and example. uh being nominated to his seat is a humbling uh honor and responsibility i know i cannot fill his shoes but if confirmed i will do my best to follow in his footsteps thank you again mister chairman and i am happy to answer any questions that the committee might have

uh judge uh you've been a federal district judge for many years you've presided over hundreds of cases and issued thousands of orders two questions to start with what have you learned from your time as a judge and what do you think will be the biggest challenge that you'll face transitioning from a district to circuit court

well senator grassley uh one thing that comes to mind about things that i've learned as a judge first of all the importance of treating every case as the most important case uh that you will confront at the time uh you're dealing with any case, it is the most important case that you'll deal with. And um having uh that attitude as to every case is important. I've also learned to really appreciate the role of the jury and fact finding. Uh it's one thing that when I started this job, I didn't have a lot of experience with juries, but I've really come to appreciate the role that they play after every trial I meet with. the juries and one thing i usually tell them is um how inspiring it is frankly to go through the process of jury selection and then a week or two or multiple week trial with a truly random cross-section of people it's very rare anymore for a ceo and a housemaker a student a laborer uh a group of people who have very little in common to come together and work on an important project like that. And it's really an inspiring process to watch. And it's something I will, uh, miss as a circuit judge. But it's one thing I've, I've really appreciated. Um, as to the transition that I'm gonna have to make, obviously one, one big part of the transition, one big difference is, uh, that instead of just making my decision, writing what I think is a correct result, I'm gonna have to work with at least uh one or two other colleagues on on a panel, sometimes with an en banc court. So that is one important transition. Of course, uh the lack of kind of interaction on a day-to-day basis in court, on a court of appeals is something that uh will be quite a bit different. It's much more sort of behind the scenes, reading and writing. Uh so those are things I know I will have to adjust to, but I as much as I appreciate the of being a district judge i do look forward to that

ok when we've seen recent reports about certain federal judges who demean their law clerks or treat them abusively uh in contrast nine of your former law clerks sent to committee a letter praising your commitment to mentorship the letter stated that you quote treat your clerks with the same respect and patience and good humor with which you treat colleagues and litigants." So I'm going to put this letter in the record without objection. Uh, so Judge, please tell us why it's important for federal judges to treat law clerks with dignity and respect.

Well, Senator Grassley, I think that's perhaps one thing that we could at least thank in part, Judge Timkovich. Four, he was an example of that. When I clerked for him, he treated all of us with respect and and dignity, and I tried to do the same. Um, I think obviously law clerks come to work for us at the beginning of their careers. Uh, a judge has incredible power over what will happen to them in their careers. So, um, there is a real power dynamic there that, uh, can be abused. And avoiding that sort of abuse is important to me. Uh, I also say, um, you know, frankly, my parents were big proponents of the golden rule. So I try to treat, uh, everybody I interact with, including my law clerks, including other employees of the court, litigants, attorneys, even defendants that come before me who've committed pretty terrible crimes sometimes, I try to treat them, uh, with respect and dignity.

Uh, this will be my last question. you were i'm told the youngest and longest serving solicitor general in colorado's history during that time you served under state administrations of both political parties regardless of who sets the policies you were an effective advocate for your state how would uh these experiences prepare you to set aside your personal views and apply the law impartially as a judge

Well, thank you for, uh, for those words, Senator Grassley. And I do think that that experience prepared me quite well for that job. Colorado, of course, um, has, uh, passes, both through initiative and its legislature, a wide range of laws, some of which I agree with, some of which I don't. As Solicitor General, uh, as a matter of policy, as a Solicitor General, my duty was to defend those laws, which I did to the best of my ability. And so I spent nine years, uh, really being driven home to me that, uh, your duty comes to the law and to the constitution comes before, uh, your personal preferences. Uh, and your policy preferences, there are of course other avenues. If someone wants to impose their policy preferences, they can run for political office. But as a judge or as an attorney in an attorney general's office, your duty is to Um, a as an attorney it's to advocate on behalf of your client, as a judge it's to follow the rule of law, uh, wherever it may lead, even if it's to a place you ultimately disagree with. I think that has been very useful, uh, training, if you will, for my role as a judge, uh, and I w- I would expect it would continue to be a useful background for me.

Thank you, Senator Durbin.

Thanks, Mister Chairman, uh, Judge Domenico, uh, let me ask you a couple of basic questions. Do you believe that the guarantees of the fifth amendment and fourteenth amendment to due process are limited to citizens of the United States?

Generally, I think the due process clauses are mostly for citizens, but there are protections for those who have been here s- in amount of time under binding current precedent.

Let me read you the fifth amendment, which I'm sure you're familiar with. No person shall be deprived of life, liberty, or property without due process. It doesn't say citizen, it says person. Does that make a difference?

Right, and there is a a an ongoing dispute about certain provisions that speak of the people versus persons, and I wouldn't wanna prejudge that case, but I do think that there is a a distinction potentially that people have argued between provisions, that like you just read, refer to persons versus those that refer to the people, which may be more limited.

but it doesn't say citizens do you concede that point

that's i i do

so i'm trying to understand what's going on when it comes to cases that come before you as a district court judge president trump told us over and over again and we can quote back to the president exactly what he said at his rallies he's going after the worst of the worst criminal offenders guilty of rape terrorism murder the list goes on very specifically he is saying the effort to deport a the deport uh the deportation of immigrants is for the worst of the worst to make america safer you've heard that haven't you

uh i've heard that yes

so let me ask what what the lies behind your ruling in some of these cases around the country the trump administration has detained tens of thousands of immigrants more than seventy percent without any criminal record overwhelmingly district court judges appointed by both presidents republican and democrat have held that mandatory detention of these individuals is illegal and unconstitutional according to analysis judges have ruled against the administration policy almost fourteen thousand times. And even a majority of trump appointed judges have ruled against the administration. You, however, are an outlier. Which even you have acknowledged in several of your opinions, denying habeas petitions. In your opinions, you've embraced the trump administration position that it can detain any immigrant without a bond hearing, no matter how long they've been in the United States, and even if they have no criminal history. In light of your embrace of the Trump administration's position, even when judges have ruled against the administration's policy nearly fourteen thousand times, why should anyone have confidence that you could be a neutral arbiter presiding over challenges to this administration's action, that you can treat immigrants in a fair manner?

Well, Senator German, I think, um, I, as, as I've expressed in the opinions you referenced, there is a wide range of well not a wide range there is a clear division of opinion about how that particular statutory provision applies i did come down on that one specific statutory question on the side that at the time was the majority there is a split of circuit opinions but it was as you said a minority opinion among uh district judges um but ultimately i think if you look deeper into my record on those immigration cases, you'll see that I've, uh, I have ruled in favor, uh, of petitioners in a number of those cases on separate bases. So I take those cases very seriously. The statutory provisions are, uh, somewhat imperfectly aligned, but I think if you read my opinion, I recognize that. I think the best interpretation is the one that I adopted. On other issues, I have in fact ruled against uh the federal government's uh position and granted petitions a number of times

i would i would like to concede that fact to you but i can't uh to for you to be in a position that you are and to deny consistently opportunities for people to have bond uh and to be released if they're in no danger but to rule consistently against immigrants is not a good good thing to encourage on the bench mister chairman i yield

ok uh before i call on senator lee i'd like to enter into the record of letters supporting the judge's nomination from bill owens and bill ritter one is a these are former colorado governors one's a republican one's a democrat the judge and stated quote well we come from different parties and often have different divergent policy views we're aligned on the critical importance of affirming highly qualified judges who consistently apply the law as written federal judges must uh maintain the highest character legal acumen and uh selfless dedication to public service we believe the judge embodies these qualities in confirmation to the Senate's uh tenth circuit would be a credit to our state and to the federal bench with objection I'll put that in the record, Senator Lee.

Thank you, Mister Chairman, thank you Judge Domenico for being here and and for your great service

Think so.

to our country, both as a district judge and uh now we hope um should you be confirmed to this position. On the tenth circuit, a court near and dear to my heart, not only because it includes my state but because I've argued uh dozens of times before that court, Beautiful courthouse, by the way, as you know very well. Um, let's talk about the Major Questions Doctrine for a moment. When you see an executive action taken within the federal government, how do you ascertain whether it runs afoul of the Major Questions Doctrine?

Well, as, as I understand the Major Questions Doctrine, uh, it is a way for federal courts to look at if a, an administrative agency is uh, asserting that it has the authority to address, has, uh, essentially can regulate over a, a major question, uh, something involving, uh, large, uh, questions of policy, uh, that you look at that and you say if that's, uh, if that's what the administrative agency is doing, Congress has to have said so clearly. It can't be just something that was sort of ambiguously there and then the regulatory body asserts that, uh, through that ambiguity, it can assert a wide swath of authority.

How do you ascertain where the major questions doctrine ends and the non-delegation doctrine begins? In other words, to what degree is there overlap between them? Cuz I understand that the major questions doctrine is a is a principle not of constitutional law, but rather of administrative law. Whereas the non-delegation doctrine is constitutional, rooted in in uh uh the the vesting clause of Article One, Section One, giving Congress the uh status of the sole uh lawmaking organ within the us government in article one section seven providing the two part formula for passing a federal law bicameralism plus presentment so where does one end where does the other begin or is there a substantial overlap

it seems to me there is probably substantial overlap i mean they do both serve a similar purpose which is to say that it's congress who has the authority to make law not a regulatory body and that congress simply uh passing some ambiguous language doesn't provide the doesn't meet the presentment bicameralism and presentment uh requirement non-delegation uh is that uh you can't simply pass off that lawmaking authority. So Congress uh under non-delegation could, I think intentionally, I guess, try to pass a bill that would just let an administrative do uh agency sort of do whatever it wants Uh, and that non-delegation would negate that. Whereas the major question would be, Congress maybe writes an ambiguous statute. And so I think there may be overlap. And they both serve that purpose of, uh, reinforcing that, uh, it's Congress that, uh, has to pass the laws that bind, uh, citizens and the rest of us.

In INS Feichada, the Supreme Court of the United States, invalidated legislative vetoes. There were hundreds legislative vetoes on the books, uh, put on the books between the New Deal era and the mid-nineteen eighties when Chateau was decided. The Supreme Court concluded in essence that in order to make or change a federal law, you've gotta have bicameral passage, followed by presentment to the president for signature, veto, or acquiescence. And that if a change to that is wrought thereafter, that has to be brought about through the same process, involving bicameralism and presentment. Uh, one could argue that this analytical framework could be brought into, merged with, or be made part of the non-delegation doctrine. Because if an act of Congress, either chamber or both chambers acting together, can't change the law after the enactment of a statute, uh, one could argue that the same could be said with regard to an administrative act, a regulation imposing affirmatively binding legal obligations on the public that had themselves not independently been subjected to bicameralism and presentment. Does that seem like an analytical framework that may overlap there?

Senator Lee, I can't say I've thought about it exactly that way before, but off the top of my head, it would certainly be the kind of thing that seems worth giving serious consideration if it were to come before me. But, uh, as I said, I I can't say I've thought about it in exactly that way before.

Great. Right, then finally, I'd like to ask you about what you view as the proper role of dissent and enra- en banc review. Uh, you're now a a seasoned federal district judge. Uh, federal district judges are are, uh, both unique and distinct from apart court judges, even where you'll be serving the same distinct, uh, same jurisdiction, uh, just at at the higher level. It'll be different in a number of respects, in including the fact you won't be conducting trials, including the fact that you won't be sitting alone, with very rare exceptions. uh, uh, exceedingly rare, uh, federal district judges don't sit on three judge panels, uh, or on ten or twelve judge panels in the en banc variety. So it'll be a new experience for you. Uh, there are those who take different approaches, both to dissents and to en banc review. There are those who view dissents and en banc review as something to be avoided as an indication of failure. There are those who view the absence of those things, or the rarity of those things, where they are rare. as an indication that people might be playing color by numbers. They might be checking the box, punching the card too much. What's your view on these things, and what do you make of the fact that the tenth circuit has, uh, for a very long period of time, uh, had fewer en banc, uh, review cases, uh, relative to its caseload than, certainly than the national average, and than I believe most of the circuits.

Well, Senator Lee, um, Obviously that's something that, as you say, is not something I've had to deal with exactly. So I'm not sure I have sort of a settled position that I can share with you. I do think my general view is that, uh, both dissents and en banc, uh, seeking en banc, I guess, or or voting in favor of it serve a valuable purpose. Obviously, written opinions, a large part of the entire, um, reason that we judges write written opinions is to explain our position, to serve sort of a public purpose. So even though a dissent isn't going to change the law, it it can serve sort of an educational purpose. I think there's that value. It can, uh, perhaps lay out reasons why the court should in the future reconsider things. En banque, uh, processes I think are similar. There are certainly opportunities to change the law if circuit precedent is wrong. I'm not I'm not sure you'd need to every time a panel gets it wrong, you may not need to go to en banc. But sometimes, if the circuit's law is just, uh, causing problems, is out of step with, uh, what, uh, constitutional law is or ought to be, it's certainly an appropriate thing for a circuit court to do. Thank you.

Senator Blumenthal. Thanks, Mr. Chairman. Uh, welcome, Judge, to you and your family. Thanks for your service on the bench. uh let me jump right into my questions uh who won the twenty twenty election

senator as justice jackson explained when she was asked essentially that question about both twenty twenty and twenty sixteen it would be inappropriate for me as a

well let me let me just call your attention to what she actually said and as a judge i know you wanna be careful when you cite another judge she was asked whether she had ever commented on the results she wasn't asked about the results i'm asking you about the results of the twenty twenty election who won it

so the question is slightly different but the answer i think is this

well the answer is the same because you've been told what the answer is when you prepared correct

no i i was not told what to say

you prepared with the white house before you came here did you not

i i prepared like i think all all nominees do with the justice department

how many times did you meet with the white house

i i never met with the white house after i was went through the um interview process

well in your response to the question that was asked you you said i have been in communication with individuals in the department of justice regarding the nomination process are they the ones who prepared you

uh i did engage with justice department uh yes

and they gave you the canned answer that has been provided by all the other judicial nominees here let me ask you uh who won the popular vote in the twenty twenty election simply a matter of fact

again uh as justice jackson explained commenting on a matter of political debate like that is inappropriate for a sitting judge

you know your honor judge you have a lifetime job right now, correct?

I do.

Nobody can take it away from you. You have the independence right now to say what really factually happened in the twenty twenty election. And you are evading that question with the same scripted canned answer that everyone nominated so far recently has given. i think the american people ought to be deeply disappointed and members of this committee let me ask you would you recommend that my colleagues who voted against justice jackson's nomination to the united states supreme court also vote against you

uh anybody who based their decision solely on that answer perhaps

let me ask you about the uh january sixth incident. Would you agree the Capitol was attacked on January sixth?

I would agree that individuals I I've I've from the videos I've seen, a number of individuals attacked, police officers engaged in violence, vandalism.

Well, an attack on police officers who were guarding the Capitol is an attack on the Capitol, correct?

So, as I uh, my uh, as I said, individuals engaged in attacks on police officers which i clearly condemn more broadly characterizing the events of that day beyond what a number of individuals did i think would uh put me in the same position as uh justice jackson when asked about the same events which is that commenting on that

commenting on

is

whether the united states capital our democracy the peaceful transfer of power was attack on january sixth is not going to be answered by you because you think justice jackson wouldn't have commented on it

well she she in fact gave the same answer to that as she did about the elections and i and and the reason is that the broader characterization of what happened that day beyond what individuals i have seen is a matter of