Hearings to examine certain pending nominations.

Good morning everybody. I welcome everybody who's here and people that may come in to today's hearing. Our first panel features Justice Smith, a nominated to the U.S. Court of Appeals for the Eighth Circuit. On panel two we'll hear from three nominees to the U.S. District Court, Jeffrey Kuhlman, Anthony Mattivi, and Anthony Powell. In a moment I'll turn to our visitors to introduce these nominations after Senator Durbin gets done speaking, but first I'd like to say a few words. This past year, the now acting Attorney General Todd Blanche launched a civil rights fraud initiative. The effort uses the False Claims Act to discover federal funds from to recover these federal funds from recipients that knowingly violate federal law by engaging in practices that racially discriminate. 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. 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. Make no mistake, recipients of federal funds have a basic obligation to adhere to our federal civil rights laws, 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. Relevant to today's hearing, I'd also like to bring up the issue that has been repeatedly featured at our nomination hearings. Some of my Democrat colleagues have relentlessly attacked nominees for their responses about election results. I think a civics lesson is in order to respond to their questioning. Under Article 2 and the 12th Amendment of our Constitution, the Electoral College dictates who wins presidential elections. Those electors cast ballots and the Vice President certifies their vote count at a joint session of Congress. So I'm not asking you to take my word for it, just let me read to you what the 12th Amendment states, quote, "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. 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. When asked about the 2024 elections, they've correctly acknowledged that President Trump was certified as the winner and is currently in office. These answers are correct both factually and legally. For some reason, my Democrat colleagues consider these correct legal answers to be evasive. One of them called it a "loyalty test." But these attacks are misguided. Under our constitutional system, whoever is certified as receiving the majority votes from the Electoral College is the winner of the election. There's no other way to win an election for President. Not accepting this basic principle of our Constitution, some of my Democrat colleagues have followed up with political theater asking who won the popular vote in these elections. Of course, none of the nominees counted ballots. They lack any firsthand knowledge of vote counts, and why should they? The popular vote doesn't determine the President under our Constitution, the Electoral College does. Still, some of my Democrat colleagues have insulted the nominees for giving legally accurate answers by describing them as "monkey" or "puppets," end of quote. This is an unfair and beneath our office. The nominees' answers demonstrate that they are constitutionalists, and that's exactly what we should want, judges who uphold the Constitution and not bend it for political attacks or insults. Today we have four judicial nominees who are cut from the same cloth. They defended the Constitution throughout their careers, and I look forward to hearing from them today. Senator Durbin.

Thank you, Mr. Chairman. Congratulations to the nominees. 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. Mr. Smith, whom we'll hear from today, is the second personal attorney of President Trump nominated to the Circuit Court, following Emil Bove's nomination last year. Having proven his loyalty to the President, Mr. Smith is to be rewarded with a lifetime appointment to the federal bench. In fact, Mr. Smith is so loyal to the President, he continues to represent him in two pending cases before the courts. Mr. Smith represents President Trump in two lawsuits filed by E. Jean Carroll. This is not a case where the legal system has been weaponized against President Trump, as he and his MAGA allies have repeatedly claimed. Rather, Ms. Carroll is one of dozens of women who bravely come forward to credibly accuse the President of sexual assault. Of course, Mr. Trump infamously bragged about his assault of women, I won't read the quote to you, you've heard it many times. In Ms. Carroll's lawsuit, juries found President Trump liable for sexual abuse and defamation, awarding her nearly $90 million in damages. While all litigants deserve a zealous advocate, Mr. Smith has gone further than most expected when he in a court filing when he baselessly dismissed Ms. Carroll's allegations as "facially implausible" and "politically motivated." He even submitted information to the U.S. Supreme Court claiming her allegations are "a story that precisely matches the plotline from an episode of one of her admittedly favorite TV shows, Law & Order." It is worth noting there is a Supreme Court rule requiring attorneys to present accurate information. 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 should be asked an unfair like question like who won the 2020 election. Is that an unfair question? I think it's an obvious question. What would be the answer for the 2024 election? What we've seen is evasion. They try to explain how the Electoral College works. The popular vote was won not by Donald Trump, but by Joe Biden in that election 2020. That's a fact, and we certified that fact on the floor of the United States Senate the day that there was an invasion of insurrectionists and demonstrators. We knew why they were there, but we knew our duty and the Vice President led us in that effort as he should have. Mr. Smith is also an election denier. In 2020, he signed an amicus brief in Texas versus Pennsylvania seeking to overturn the results of the election. President Trump continues to deny that he lost the 2020 election, and he has bragged about interfering in this year's midterm elections. A key component of his plan is installing loyalists at the Justice Department and on the bench. Mr. Smith has extensive right-wing political affiliation and ties to dark money entities. One example, in 2023, Mr. Smith served as the treasurer for the Missouri chapter of the Club for Growth, a conservative super PAC. What a coincidence it is then that the organization spent thousands of dollars on consulting provided by Provinco LLC, an entity that Mr. Smith owned. This apparent self-dealing raises serious ethical questions, not the first in this administration. I yield.

Thank you, Senator Durbin. Now we'll have our colleagues introduce the nominees. I'll do it in this order, Senator Moran, Senator Marshall, former Senator Roberts, Senator Hawley, and Senator Schmitt. So proceed, Senator Moran.

Chairman Grassley, Vice Chairman Ranking Member Durbin, thank you for the opportunity to appear before you today. Thank you for the first time in my life to be able to appear as a predecessor before Senator Roberts speaks. I'm grateful for that opportunity. Mr. Chairman, I take my responsibilities seriously when seeking nominees to serve on the federal bench. One of the most significant privileges we all have is to support, to hold, to bring forth individuals of principle and professional expertise and experience and temperament to administer equal justice under the law. Upon confirmation of these three nominees, working with both Senator Roberts and Senator Marshall, if these three nominations that we're hearing that your committee is hearing this morning are confirmed, Kansas has six federal district judges, there are three in office and three vacancies, those six will now be filled with these three nominees. And I've been involved in the confirmation and nomination during my time as a U.S. Senator of all six, including now some additionally who serve with senior status. And Senator Marshall and I have been involved with two members of the 10th Circuit, our state circuit court. I'm here to introduce three fellow Kansans, three fellow Kansans that I know well, Tony Mattivi, Anthony Powell, and Jeffrey Kuhlman, all who have been nominated by the President to serve as United States District Judges for the District of Kansas. I offer my strong support for each of them. Tony Mattivi, Mr. Mattivi for more than 20 years served as a federal prosecutor handling complex cases involving drug trafficking, violent crime, and terrorism. Following his time in federal service, Mr. Mattivi was confirmed as the director of the Kansas Bureau of Investigation where he has provided strong leadership on public safety and law enforcement priorities. I've had the opportunity to work with Mr. Mattivi extensively throughout his time as director, and I appreciate his dedication to serving Kansans and improving our justice system. His experience in the courtroom and in law enforcement leadership positions bode well for his service on the federal bench. I also want to recognize that Mr. Mattivi is joined today by his wife Mary and two of their children, Hope, a graduate student at Kansas State University, and Matthew who currently is serving our country. We are grateful for their support and for the sacrifices their family make in service. Anthony J. Powell. Judge Powell is joined today by his wife Betty. Judge Powell is a graduate of George Washington University and Washburn University School of Law, and during his time in law school he served as an associate editor of the Washburn Law Journal and participated in moot court board, demonstrated early an academic distinction and engagement in the study of law. Early in his career Judge Powell gained valuable experience in public service and the legislative process through roles in Washington D.C., including an internship with Kansas Senator Bob Dole and as legislative director for Representative William Broomfield. He later entered private practice at the Wichita, Kansas law firm of Martin and Churchill, and there he built a strong foundation in the law. Judge Powell in 1995 was elected to the Kansas House of Representatives where he served for eight years including time as the majority whip and served on key and important legislative committees. After that legislative service Judge Powell served as a judge on the 18th Judicial District in Sedgwick County, Kansas from 2002 until his appointment to the Kansas Court of Appeals in 2013. After retiring from the Court of Appeals in 2022 he was named Kansas Solicitor General, continuing his service to the state in a senior legal role. Judge Powell's career reflects decades, decades of public service across all three branches of government, his experience, judgment, and commitment to the rule of law have prepared him well for responsibilities on the federal bench. Jeffrey M. Kuhlman. Mr. Kuhlman is a native of Western Kansas having grown up in Ness City, population 1,329. Mr. Chairman and Ranking Member Durbin, you and most members, if not all members know about rural parts of our state. In our efforts to find qualified judicial candidates I had a specific goal of trying to make certain that we found candidates for nomination that come from small places across our state. And I'm pleased that we have a candidate who not only comes from small places but who has the capability of serving as a federal judge. In part perhaps that's nostalgia as a small town Kansas kid myself along with Senator Roberts and Senator Marshall. But it also is important as our state like yours looks for young men and women to serve the legal profession in rural places across our state. I want everyone in law school and potential lawyers to know that they can work in their hometowns, they can serve people in rural Kansas and rural America and have a bright future in the law. Jeffrey Kuhlman earned his bachelor's degree in history from Kansas State University before going on to receive his law degree cum laude from the Antonin Scalia Law School at George Mason University. He earned that degree in 2015. After law school Mr. Kuhlman returned to Kansas and was selected to serve a two-year clerkship for United States District Judge, then Chief Judge Eric F. Melgren. In that role he gained valuable hands-on experience across all phases of federal litigation. Jeffrey then entered private practice as a litigation associate at a Wichita firm, Hinkle, the Hinkle Law Firm. And today Mr. Kuhlman is a partner at a six-person law firm, Watkins Calcara in Great Bend, Kansas where his practice focuses on civil litigation including municipal law, constitutional matters, commercial disputes, and personal injury cases. He was brought to my attention by his colleague in that firm, my longtime friend Dick Friedeman who spoke to me of his character, professionalism, and work ethic. Mr. Kuhlman and his wife Lauren are raising their five young children, Elsie, Madeline, Lucy, Oliver, Josephine in Great Bend. Incidentally Mr. Chairman and Ranking Member, Great Bend is the hometown of Senator Marshall and the town in which I was born. Again, small town Kansas. Mr. Kuhlman has demonstrated a strong commitment to the rule of law, a deep respect for the Constitution and clear dedication to serving the people of Kansas. His experience both inside and outside the courtroom has prepared him well for responsibilities of the federal bench. I'm confident in his professional competence and his judicial temperament. I'm pleased to support these nominees each of whom bring breadth of experience from federal prosecution and law enforcement to leadership and judicial service to private practice to federal clerkships that reflect the strength of the Kansas legal community. I look forward and I appreciate the treatment in which this committee, Republicans and Democrats have treated the nominees that I brought forward to your attention in the past and I look forward to the committee's consideration and hope each receives a fair review and a timely confirmation. Thank you.

Thank you, Senator Moran. Now Senator Marshall.

Well thank you Chairman Grassley and Ranking Member Durbin. I want to start by thanking my senior senator Jerry Moran and his team for your strong partnership in advancing these nominations. Our staffs have never worked harder or more efficiently on any project that we've done and I certainly want to compliment our state staff as well. It was quite a challenge to narrow this down to just three people. I also want to acknowledge Senator Pat Roberts. Senator Roberts was either my congressman or one of my U.S. senators for my entire adult life and I'm proud to hold the seat that he once held and appreciate his tireless fight for the people of Kansas. I want to thank President Trump for nominating three outstanding Kansans. It's an honor to join you today in introducing them to this committee. I also want to take a moment and recognize Judges Eric Melgren back home and Daniel Crabtree and Julie Robinson for their dedicated service to our state as they transition to senior status. And in particular I want to give a special shout out to my friend and mentor Judge Melgren whose career is a powerful example for these nominees. And I have to also add that nominee Jeff Kuhlman had the privilege of clerking directly for Judge Melgren for two years after law school. The federal judiciary is one of the foundational pillars of our constitutional system. As we continue the great experiment of this republic, the system of checks and balances between the three branches of government depends on getting this right. This Senate's role in providing advice and consent, ensuring we seat the right individuals in these lifetime positions. This is one of the most consequential responsibilities of a United States senator. Courts are where the law meets real life for real families, real communities and real Kansans who have something important on the line. They deserve judges who understand Kansas values and culture, who will call balls and strikes fairly and impartially. First I'd like to speak to Mr. Jeff Kuhlman who as Senator Moran mentioned grew up in a small Western Kansas town of Ness City, population around 1,300. I think it's important that we recognize the diversity in these candidates. He earned his undergraduate degree at the Kansas State University before attending law school in Washington D.C. Yet he and his wife Lauren whose brother I delivered made a very deliberate decision to go back home to be with family, to raise their family with their family as well. Today he's a respected attorney to a law firm I know very well in my hometown of Great Bend, a community where I practiced medicine for 25 years. Jeff knows rural and Western Kansas inside and out. What stands out most about Jeff is his deep sense of duty and character. He chose to serve the very community that raised him, representing local government, cities and everyday Kansans with integrity and common sense judgment. He embodies the Kansas values of hard work, humility and commitment to his roots. I'm confident he'll bring that same grounded perspective and fairness to the federal bench for decades to come. Next I want to speak to Tony Powell. He's devoted his career to public service in Kansas beginning with four terms in the Kansas House of Representatives where he rose to majority whip. He served as Sedgwick County District Judge and later on the Kansas Court of Appeals where he thoughtfully considered thousands of cases. He recently is the Kansas Solicitor General. He's argued on behalf of the people of Kansas in significant matters. Few nominees have served Kansans at every level of the legal and legislative system. Tony is a person of steady character and principled judgment. His decades of service reflect a deep respect for the rule of law, for due process and the institutions that protect Kansans. He brings the kind of balanced experienced perspective we need on the federal district court. And finally I want to introduce my friend Tony Mattivi. Tony earned his law degree from Washburn University in Topeka, Kansas and spent his career in the challenging work of protecting public safety and upholding justice. He began as an assistant district attorney in Shawnee County which is Topeka. He served in the Kansas Attorney General's office and then spent more than 20 years as a federal prosecutor handling complex cases involving drug trafficking, violent crimes, organized crime, money laundering and terrorism. Among his most notable work he led the capital prosecution of the Al-Qaeda operative who masterminded the bombing of the USS Cole. 17 American sailors who deserved justice and got it because of Tony's relentless commitment. He also traveled to Iraq to advise on war crime tribunals and prosecuted individuals who plotted attacks against targets in Kansas including the Wichita airport and Fort Riley. Most recently as director of the Kansas Bureau of Investigation Tony showed proactive leadership, sounding the alarm early on fentanyl, standing up the joint fentanyl impact team and creating child victims units to better protect our most vulnerable. What defines Tony is his relentless integrity, courage and commitment to keeping Kansans safe. He has dedicated his life to the rule of law and public service with honor and without failure. In closing I'm proud of the diverse backgrounds and experiences these three nominees bring. Their records are exceptional but what matters most to me is their character. These are good men, men of high integrity who share the core values of fairness, hard work, respect for the law and service to others. They will ensure due process, protect individual rights and liberties and deliver impartial justice to the people they serve. Senator Moran and I worked carefully through a strong list of candidates and these three stood out. Individuals I'm confident will serve the District of Kansas with distinction for decades to come. Thank you.

Thank you, Senator Marshall. Now Senator Roberts, I remember how famous you are for being the author of the Freedom to Farm legislation for 30 year or for 50 years before 1995 bureaucrats told us how much corn and beans and and cotton and wheat we could raise and now because of your leadership, farmers, family farmers in Iowa can plant whatever they want to plant. So thank you.

I thank the distinguished chairman. It's good to be back here on Capitol Hill in the Senate. This is my first appearance in about five or six years since I retired. I can't think of two people that I would rather see other than the chairman and the distinguished ranking member. We have a history with or I have a history of privilege really of working with both gentlemen. And it's good to see Senator Hawley here and also Senator Kennedy which means we are certainly on television at least somewhere. And so my job is is pretty simple and it's just to summarize as best I can this unique candidate. Tony Mattivi is a household word almost in Kansas. And I'm going to read something at the first of his resume which goes on and on and on. He presently serves as the 13th director of the KBI, the Kansas Bureau of Investigation. And that agency is a very proud one. It's responsible for about 400 employees, has an annual operating budget with about $73 million, 88,000 square miles. He was nominated on February 9 back in 2023. And the reason I am going into all of this is that he was approved by the Kansas Senate 39 to zero. My fellow colleagues, that doesn't happen. I mean that just doesn't happen, 39 to zero. I might compare it to the U.S. Senate but it indicates the tremendous support that Tony has in Kansas for many different reasons. But he not only is qualified but as a person I think everybody that knows Tony says nothing but good things and all those things are absolutely true. I found out and here's what Tony's about. I found out when I went to Iraq and I had the privilege of being chairman of the Senate Intelligence Committee at that time. We were checking out our intelligence and how it was used and was it up to par and things of this nature. And I discovered in this material here with regards to Tony that he was there at the same time. I did not know that. But the fact that he was there, he was giving advice and helping to lead the people who were conducting an investigation on all of the people responsible for war crimes under the Saddam Hussein regime. That pretty well tells it about Tony. And he didn't have to be there by any means, but he wanted to be there. And I'm going to stop in terms of telling stories about Tony at that point and it just indicates the kind of person that he is. I don't know if the if this Senate can consider Tony with a whatever, well wait a minute, that's not possible in the U.S. Senate. Obviously we have Rand Paul and I know Rand would like to have a no vote. That would be the only one that I would say that would ever vote against Tony Mattivi. And I'll talk to Rand, see if we can get that squared away. Mr. Chairman, I'm going to stop at that point. I feel that I have a privilege here of appearing in behalf of a Kansan that is unique. He is not only qualified, he is held in the highest esteem of the people who've had the privilege of knowing him. I thank both Senators for being for the privilege of being here and I'll close at that point.

Thank you, Senator Roberts. Now Senator Hawley.

Thank you very much, Mr. Chairman. I want to say welcome and congratulations to Justin Smith, the President's nominee for the Eighth Circuit Court of Appeals. It's a great privilege to say a word in introduction for Justin. I want to start by pointing out that this is going to be the sixth, sixth federal judge that Donald Trump has appointed to the bench in this Congress alone in the state of Missouri, which is something that we're very proud of. I want to thank the President for his focus on the state and say to my partner Senator Schmitt that I think six is a pretty good number, Eric. I think this is I think we're doing pretty well and we've got a tremendous candidate before us today. I also want to say thank you to Judge Duane Benton, whose seat Lord willing Justin will soon fill. Judge Benton has for years been the consummate judge. He has been a man of excellence, he has been a man of the utmost integrity, he has the most compassionate, kindhearted man you'll ever meet. His the standard that he has set is is truly exceptional and I know Justin will will do absolutely outstanding in filling it. Let me just say a brief word about Justin. I know Senator Schmitt will want to say more. Justin grew up in New Bloomfield, which is a small town in in Callaway County, much like the town that I grew up in, not too far from there. The kind of place that still believes in hard work and plain dealing and the rule of law. Justin went on to the University of Missouri for his undergraduate degree. He stayed to earn his law degree at Mizzou Law, where he graduated as a member of the Order of the Coif, which is the law school equivalent of graduating at the very top of your class. Justin then went on to join an organization that I've got great fondness for, the Missouri Attorney General's Office. He and I both had a stint of of duty there, a tour of duty. I want to just say and I know Senator Schmitt will say more about this, that Justin's tenure in the Missouri Attorney General's Office was notable not least because my colleague Senator Schmitt, when he was Attorney General of the state, decided to make Justin both his first assistant and chief of staff. And those aren't just credentials on a piece of paper. That recognizes that that reflects rather the judgment of the Attorney General that this is someone of the utmost, the highest caliber, of the utmost legal credentials, the the greatest ability to handle the state's most important cases in court. And the fact that Senator Schmitt selected Justin for that position, I think speaks volumes and I know Senator Schmitt will speak to that in just a moment. From that office, Justin went on to work with our current Solicitor General, the Solicitor General of the United States, when he was at the James Otis Law Group, where Justin continued to take on cases of genuine national significance, including before the United States Supreme Court. He has spent his career doing the hard work of constitutional litigation, not just writing about it, not commenting on it, but actually litigating it in real courts for real people that have real consequences. It is my view the Eighth Circuit's one of the most important appellate courts in the country. It covers eight states, including of course Missouri. Its decisions shape law for millions of Americans. This vacancy is a very consequential one and I want to thank the President for nominating someone who I think will be an excellent, excellent judge to fill this vacancy, to fill the shoes of Duane Benton and to serve the people of Missouri and the nation. Thank you, Mr. Chairman.

Before Senator Schmitt, you folks can stay as long as you want to, but we don't ask questions of Senators, so if you want to go, feel free to go. Senator Schmitt.

Thank you, thank you, Mr. Chairman. I also want to thank President Trump for for nominating Justin Smith to this really important position. And as Senator Hawley mentioned, I think Missouri is really leading the way with the not just the numbers, but the quality of candidates that have been put forth to serve in the Article III branch. Mr. Chairman, ranking member and members of the committee, thank you for holding this hearing and thank you for the consideration of Justin Smith. It's a real privilege for me to introduce Justin Smith, President Trump's nominee to serve on the U.S. Court of Appeals for the Eighth Circuit. This introduction is very personal for me because I had the opportunity to work with Justin not just in one role, but in multiple chapters of public service. He was a key member of my team in the Missouri Attorney General's Office when I brought him over to serve with me when I became Attorney General, where he served as my top advisor and held senior leadership positions including chief of staff and first assistant. And after I came to the Senate, I trusted him enough to bring him here as a senior advisor as well. I've seen him work up close day in and day out and I can say it very plainly, Justin Smith is one of the finest lawyers I've ever worked with in my whole life. A lot of people who appear before this committee have impressive resumes on paper and Justin clearly does. He graduated magna cum laude from the University of Missouri School of Law, practiced at a major law firm, served at the highest levels of state government and is now built a career that spans private practice, government service, trial litigation, appellate litigation, constitutional law and public policy. This is not someone being nominated based on theory or pedigree alone. He has done the work. He has been tested and he has excelled. He also brings something else that matters a great deal for a judge, breadth. Justin has seen the law from multiple angles. He's practiced in private litigation, he's served in the Governor's Office, he's served as general counsel for the Missouri Department of Agriculture, he helped lead a very active state Attorney General's Office, he's been a senior advisor in the United States Senate. And in each one of those roles, he's built a reputation for being prepared, careful and serious about getting it right. On a personal level, Justin's the kind of person you want around when the stakes are high. He is calm, he is thoughtful, he does not posture, he does not cut corners, he listens carefully, he thinks rigorously and he speaks with precision. In public life, where ego and impulse can too often get in the way, Justin has the kind of maturity and self-command that gives you confidence. I trusted his counsel because he earned that trust over and over again. He's also deeply rooted in Missouri. He studied here, built his career here and served the people of our state with distinction. He understands our part of the country, our legal tradition and the proper role of a judge within our constitutional system. He knows that the job is not to invent law, not to chase political fashion, not to impose personal will from the bench. The job is to interpret the law faithfully, apply it honestly and respect the limits of judicial power. That is exactly the kind of judge Justin Smith will be. So for me, this is not just an introduction, it's a strong personal endorsement from someone who I've relied on time and time again and his judgment. I've watched his performance and seen his character firsthand. He has the intellect for the job, the experience for the job, the temperament for the job. I'm proud to support his nomination and urge the committee to support that nomination as well. Thank you, Mr. Chairman.

Yeah, thank you. Would Mr. Smith come to the table please and before you sit down would I'd like to administer an oath. 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?

I do.

Thank you very much. Now sit down and you can give your opening statement and you can introduce any family and friends, that's the tradition in this committee.

Thank you, Chairman Grassley and ranking member Durbin for the opportunity to be here before this incredible and prestigious committee today. I'd like to start by thanking President Trump for the honor of this nomination and thanking my two Senators, Senator Hawley and Senator Schmitt for those kind words and for your service to the people of Missouri, including in the office I was privileged to serve in in the Attorney General's Office. So thank you to both of you. I am privileged and proud to have some family and friends here with me today that I'd like to introduce. I'm joined by my wife Lauren, who's directly to my left and to your right. Lauren and I have been married for 14 years and she is by far my better half as she graduated near the top of her veterinary school, she crochets blankets and can make just about anything with crochet needles and she even won a blue ribbon at the Missouri State Fair for her cookie recipe out of her own cookbook that she published herself. Very proud of my wife Lauren. She and I have been blessed with three wonderful children. Luke is 10, Caleb is seven, Alice is five. They are just a joy to have. All three of them are artistic. Thanks to Senator Kennedy, they are actively drawing right now and my five-year-old even gave me a note that I can rely on when questioning gets tough today. It just says, "I love you, Dad," which I appreciate. She just learned to write recently. They're also athletic. We love playing board games, and they are just a joy to have. They were especially excited about today because they got to wear some fancy clothes and fly on an airplane yesterday, and I think they look terrific. My parents, Preston and Janice Smith, are also here, along with my sister, Joy. I'll never be able to thank my parents enough for the sacrifices that they made for me and for the investment they've made my entire life in helping me become who I am today. I'm the oldest of five, and my three brothers, Jason, Jonathan, and Joseph, are busy working today, but they're here in spirit. And yes, my parents did like the letter J when it came to kid names. My in-laws are also here, Dale and Rhonda Weininger, and then my brother-in-law, Nathan. I'm very proud to have them here, and I've been blessed to have great in-laws who've welcomed me into the family and treated me as one of their own ever since I entered the picture. My other brother-in-law, Landon, is watching from home with his family as well. I'm very grateful to be here today, and there are too many other friends and family that are here or watching online to name them all. But it is a true honor to be before you today, and I welcome the questions that you all have for me. Thank you, Mr. Chairman.

Okay. We'll have five-minute rounds for every member. Before I ask questions, after I'm done with my questions, Senator Schmitt, I understand you'll take over for me while I go to the Finance Committee for the rest of the hearing. Okay, thank you. Mr. Smith, congratulations, first of all. During your career, you've worked with some of the country's most elite attorneys, like Solicitor General John Sauer and my colleague on this committee, Senator Schmitt. For those two or any other examples you want to give, what did you learn from the attorneys you worked with, and how has working with them shaped your view of the law, with emphasis upon shaping the view of the law?

I have worked with some elite attorneys throughout my career. I've been very privileged to learn from some very fine people. You mentioned some of them, Mr. Chairman. Senator Schmitt was a terrific attorney and a boss to work for for the time that we had together. From him, I would say I learned about a true commitment to public service, about doing the right thing for the right reasons every single time, having a deep love for the country and the Constitution, and allowing that to be a rock. Senator Schmitt is someone who has very true values that he has day in and day out, and that's something I really respect about him. The other thing that I really respect, among many things, from Senator Schmitt is just his commitment to his family and making sure they're always a priority for him. Watching Senator Schmitt over the years with his son, Stephen, who's such a special person who brings so much happiness to a bunch of lives, has always encouraged me to be a better husband and father. Senator Schmitt has two wonderful daughters and a wife, and he is actively involved in their lives, and I've just been privileged to watch him as a great role model. From Solicitor General Sauer, I've been privileged to learn from one of the smartest lawyers that I've ever met. General Sauer is someone who's brilliant but hardworking, who puts in the time day in and day out. He can have a brief written before many people even get up and roll in. He is quite the early bird. He's also someone who studies so carefully and an attention to detail from cases dating back hundreds of years and understanding the original public meaning of our important governing documents. Those are some of the things that I've learned and that I would be taking with me if I was fortunate enough to be confirmed by this body.

Okay. Secondly, you've worked in the Missouri Department of Agriculture and the Attorney General's office. You've worked to protect the rights of farmers and their businesses, and you've also written about regulatory landscape, how that impacts the family farmer. How have these experiences prepared you to serve on the Eighth Circuit, which has jurisdictions over many rural and agricultural states, including my state of Iowa?

Agriculture is an incredibly important issue in the Eighth Circuit, Mr. Chairman, something you've championed your whole career. I think agriculture is the top industry or next to the top in every single state in the Eighth Circuit. It certainly is in Missouri and in your state of Iowa. I've been very privileged to be able to work with some great farmers and folks across Missouri. In those roles, they're good, hardworking people. They're salt of the earth, and I've been very proud to stand up in court and defend legislation that affected farmers. I've been very grateful to be able to help ease some of that regulatory burden. We had a regulation, for example, in Missouri that dealt with the training of milk haulers, and for the longest time, it required in-person training in Jefferson City, which was very limited. And we were able to make that a virtual training and something that would be more accessible to people if they wanted to get into the milk hauling business. I'm very grateful to have the support here today of Missouri's leading agricultural organizations, and I'm looking forward, if I'm fortunate enough to be confirmed by this body, to continuing those strong relationships from a different place.

My last question is, you've litigated numerous appeals at the state and federal level, including the court to which you've been nominated. You've also advocated before the Missouri Supreme Court and the U.S. Supreme Court. What have you learned from your appellate practice that will aid your review of complex cases before the Eighth Circuit?

I have been very privileged to work on some important cases and with some great attorneys again. When the stakes are high, I think one of the things that I've learned is just the importance of professionalism, treating everyone with dignity and respect, even in cases that have strong emotions, and making sure that everyone can still be friends and professionals at the end of the day. Taking the work seriously and working hard and making sure that I've done everything I can to give my very best work, which, as Senator Schmitt mentioned, is something that's very important to me, to be a zealous advocate, to do my very best, and then to trust the court to apply the rule of law to whatever case I brought before them.

Thank you very much. Now Senator Durbin.

Mr. Smith, welcome. Congratulations on the nomination, and congratulations on your family. Beautiful family that you have brought with you today as your support. So if our questions get tough on this side of the table, you've got reinforcements ready to spring into action, I'm sure. So let me ask a basic question. Will you acknowledge that President Trump lost the 2020 election to Joe Biden?

I acknowledge, as Chairman Grassley was talking about in his opening remarks, that under Article II and the 12th Amendment, that the Electoral College cast their votes in December of 2020. In January of 2021, Congress met to open and count those votes, and as a result of that process, Congress certified Joe Biden as the president.

Who won the popular vote in the 2020 presidential election?

The popular vote is not something that's mentioned in the Constitution, and so I think...

I'm asking you, it's a basic question. If you took an eighth grader from Kansas and Missouri and Iowa and Illinois and said, "Who won the popular vote in the 2020 election?" and they submitted an explanation of the Electoral College, you couldn't give them a passing grade. So let me just ask you, as an American citizen who I'm sure voted in that election, who won the popular vote in the 2020 election?

As an American citizen and someone who, as Senator Schmitt said, cares about precision, I want to be very clear that as a lawyer looking at the Constitution, it's the Electoral College that matters. And that process played forth in December of 2020 and January of 2021.

At the end of this exercise, at some point, there is going to be a video, I'm sure, that will be released, which will watch the painful explanation by every nominee from the Trump White House for the federal bench as to why they couldn't answer the basic question every single person in this room knows is true. Donald Trump lost the election in 2020 to Joe Biden. He may have regretted it, he may have denied it, but it's a fact. And the reason why we continue to engage in these political gymnastics is a question about whether or not you can ever say no to Donald Trump when it comes to any future service. And that is a basic concern. Another concern I have, you're very active in political organizations. In 2023, you served as treasurer for a political committee in the Club for Growth Action Missouri. You also were somehow, you owned a company called Pervinco, which did $15,000 in general consulting with the Club for Growth. According to your questionnaire, you are currently a board member of the Yorktown Fund and First Principles Action, both of which are right-wing organizations with connections to Leonard Leo. Based on public records, three groups involved in political polling and consulting are registered at your address: Remington Research Group, Madison McQueen, and Armada Strategies. By my count, that's seven different organizations that you have had some affiliation with. All have one thing in common: they are right-wing organizations. What we ask nominees, even when Democrats are seeking positions like this, is there a ghost of a chance, if you became the circuit judge, that you would have any objectivity when it comes to political questions? And what has been found in the past in this committee is that if somebody engaged in "socialist poetry" in high school, they're disqualified. So now we have you with at least seven right-wing organizations where you had some affiliation or leadership. Is there any ghost of a chance that you could be objective in the future?

Ranking Member Durbin, I would be fair and impartial in any case that came before me. And let me explain why. First, let me just correct some of the information in your question. Respectfully, three of those organizations that you mentioned, I have no affiliation with. I know that there were some committee staff that had some questions. There was a clerical error filed in one report that listed my home address for three of those organizations. If you were to look at the State Ethics Commission, those are organizations that are based in different parts of the country: Florida, Kansas City, and California. And they've been reported at those addresses dozens of times in many different states and to the FEC. It was a simple mistake on a report that I did not review. So I want to be clear that I have no affiliation with any of those groups.

We will correct the record.

As to the other organizations that you mentioned, one thing about me is I've been very grateful for opportunities to engage in our political process throughout the course of my life. It's something my dad and I did growing up because it was something fun as a father and son to go out and get to meet some of our elected officials. During college and law school and through my professional career, I've been able to be great friends with a whole bunch of people that don't share the same views as me. You have letters before you from people who are many different political parties who are strongly supporting me because they know the type of person that I am. Some of the letters, I think there's one from the dean of the University of Missouri Law School, he even notes in the letter that he and I don't agree on everything, but that he still strongly supported me because of the character and the type of person that I am. And in every case that I've been involved in, some of which do have some political issues, I've depended on judges to set aside their personal views and treat my case fairly and impartially, to apply the law and the facts to the case that I've brought before them, and to do so without regard to partisan affiliation. And that's the type of judge that I would strive to be, to set aside those personal views and to apply the law and the facts because that would be my role as a judge, not as a partisan or as an advocate, but as a judge where any personal views I have would no longer be relevant.

Thank you. Thank you, Mr. Chairman.

Thank you, Senator. At this time, I'd like to enter into the record a letter supporting Mr. Smith's nomination from Dean Paul Litton of the University of Missouri School of Law. He praised Mr. Smith's "moral leadership" and stated that "I know there are some issues of jurisprudence, including methods of constitutional interpretation, about which Mr. Smith and I disagree. Such reasonable disagreement does not diminish my support. He's a person of integrity who cares deeply about the rule of law, including the protection of fundamental rights and due process." Without objection, I'll enter this into the record. Senator Kennedy.

Mr. Smith, congratulations. Why do you think my Democratic colleagues are so keen to solicit your opinion about who won the election?

Senator Kennedy, I don't mean to speculate about what they are doing. It has been a consistent theme I've seen in hearings.

Go ahead.

I want to be very careful, Senator. You know, I think that's an issue of political importance to people. It's something that has become a theme that apparently some Senators think is worthy of putting on the video clips to share with their friends and followers.

Well, the suggestion has been made, and I've heard it made several times by some of my colleagues. In fact, my friend Senator Durbin just made it, that somehow if you don't disagree with the President's position on the election, it proves you can't stand up to the President. Is that true? Is that the way you understand the question?

I think you're right, Senator. I think that is the framing of the question.

When you're on the bench, if you're confirmed, and you have to make a decision in a case, do you think the President's going to be aware of every case you have to make a decision in?

I would expect not, Senator.

Yeah. You expect him to call you up and say, here's how I think you ought to vote?

I would not anticipate that, Senator.

Are you going to call him up and say, how do you think I ought to vote?

I would certainly not be doing that, Senator.

It's kind of absurd, don't you think?

I would agree, Senator. In this scenario. And Senator, if I may, the very last time I stood up in the Court of Appeals in February, the Ninth Circuit, I was adverse to this administration. The Department of Justice was arguing against me.

I understand. Do you think it's okay as an American, I'm not talking about yourself as a judicial nominee, do you think it's okay as an American to disagree with a President?

Senator, I disagree with people I'm very close with, so I do agree.

Do you think it's okay to agree with a position or comment made by a President?

I think it's all right to, you know, I think people agree and disagree on things all the time.

Yeah. Do you agree with everything President Biden said or did?

Senator, I don't believe I probably did agree or disagree with everything he said, no.

Okay. Do you agree or disagree, well, strike that, do you agree with everything President Trump has said or done?

Senator, I am sure there are things that I don't agree with.

Yeah. Okay. And if you disagree, let's say, with the President about something he or she has said or done, and you've got one opinion as an American, the President has another opinion, and it's debated publicly across America, who ultimately gets to decide who's right?

Well, sir, I think the Constitution and the rule of law would decide, and that was what I would be applying faithfully and fairly to whoever the parties were before me.

Do you think the press gets to decide?

No, Senator.

The American people get to decide, don't they?

The American people do have a really important part with electing our officials.

Yeah. They get to listen to the, they get to watch the dialectic, the competing ideas, and say, well, you know, we kind of agree with this one and we disagree with that one. What's wrong with that?

I think the founders set up that very system where the people would make the decisions on who was leading the country.

Okay. I'm almost out of time. Are you an originalist?

I am, Senator.

What does that mean?

An originalist when it comes to interpreting the Constitution is attempting to determine the original public meaning of whatever provision is at issue.

What do you mean by public meaning?

How that, whatever the provision at issue is, how it was understood by the people at the time of its ratification.

By the people. Why don't we look at the intent of the drafters?

I think that is part of the process, Senator. There are lots of different sources that you can consult to determine.

You think the people at the time the Constitution was approved, my guess is they were busy kind of like Americans today earning a living. You think they poured over the Constitution and read every single word and thought about the consequences in the future? I mean, why does the public meaning, I'm not saying you're wrong, but why does the public meaning matter more than the drafters' intention?

I think as you look at opinions from like Justice Scalia in the Heller case, there are many different historical sources he looks at to understand what the words meant that the drafters wrote and adopted.

Yeah, but why the people, why would we say it's the public meaning by the people instead of what the drafters intended? That's all I'm asking you. There's no right or wrong answer. The Chairman's going to cut me off here in a second like a dead stump. I'm just asking you why.

Yeah. Well, and I think trying to understand words as they were written 230 years ago, there's an important process of consulting what the drafters said, looking at different, you know, in Heller they go through it extensively.

Yeah. You can finish later if you want. I don't want to abuse my good friend who's let me go on here.

Thank you, Senator. Senator Blumenthal.

Thanks, Mr. Chairman. Mr. Smith, you signed amicus briefs in December of 2020 supporting an effort to dispute the outcome of the 2020 presidential election. I've been asking all of the nominees about who won the 2020 election, as you may know. I understand you may have been asked already this morning. I want to hear it for myself. Who won the popular vote in the 2020 election?

You're right, Senator. I have been asked that by one of your colleagues already. And as I explained, the popular vote is not part of, you know, the Article II or the 12th Amendment. There's an Electoral College that meets in December of an election year for President and that gathers to cast the electoral vote.

Okay. Who won the 2020 election?

The person who became President in January 2021 was when Congress certified.

In other words, you're not going to answer. You're going to give me the same rote rehearsed answer, which frankly makes you look ridiculous, if not pathetic. And I'll ask you another question, give you an opportunity maybe to be more forthcoming to this committee. Who won the popular vote in the 2020 election?

As I was just saying, the popular vote is not something that is contemplated by the Constitution.

I'm asking you who won it. As a member of the Court of Appeals, you are responsible for looking to the facts as well as the law. Granted, facts found by the trial court. And I'm asking you to look at the facts here and give me a straight answer. Who won the popular vote in the 2020 election?

In January 2021 was when Congress counted the Electoral College votes and certified Joe Biden as the President.

So you're not going to answer my question. You know, I would have thought, here you are as a nominee, I recognize the anxiety that someone in your position may feel, the fear that the President of the United States may be watching. But you're in a pretty secure position. As a member of the court with lifetime tenure, you're in an indisputably secure position. If you don't have the courage now to state your independent judgment on a clear factual issue, I don't know how the United States Senate can confirm you as a member of one of the most powerful courts in the country. Let me ask you finally, did Donald Trump lose the 2020 election?

As I said a moment ago, Senator, when Congress counted the Electoral College votes in January 2021, Joe Biden was certified as the President.

Okay. Let's try another topic. Was the United States Capitol attacked on January 6, 2021?

I want to be very careful in the language I use, Senator, because there are cases that have been filed in the Eighth Circuit where the characterization of that day has been central to the case. And as a judicial nominee, I don't want to prejudge any of those cases that might come before me.

Have you seen video footage of that attack?

I've seen the news reports from that day, yes, Senator.

And what did you see in those videos?

I think what the Supreme Court in the three cases that they have handled that have issues related to that day, the Trump versus Anderson case out of Colorado, the Trump versus United States case that I was privileged to handle.

Did you see people punching Capitol Police officers? They're the ones outside this hearing room protecting us. Did you see the violent attackers punching, kicking, beating Capitol Police officers?

I want to be very clear that I condemn violence on that day and every day, and I'm very grateful for the men and women of law enforcement who protect us.

And you saw them attacked on that day, did you not?

I believe the language that the Supreme Court has used in the three cases that I just mentioned is that there was a breach of the Capitol.

Did you see people throwing things at those officers and at the Capitol?

Senator, as I said, I condemn all the violence that occurred on that day and that has occurred on other days as well.

Would you agree with me that what happened on that day was a violent mob attacking the Capitol? You've seen the videos.

I have seen the videos, yes, Senator.

You would agree.

I will say what I've said several times now, that I condemn the violence and I would use the language of the Supreme Court in those three cases, the Trump versus United States.

I really regret that you don't have the grit to stand up and speak out on an issue of such fundamental importance and that you are in effect intimidated by the remote prospect that the President of the United States may take umbrage and withdraw your nomination. If you don't have the courage to tell this committee the truth, you don't deserve to be on the bench. Thank you, Mr. Chairman.

Senator Hirono.

Thank you. I ask the following two initial questions of all nominees coming before any of the committees on which I sit to ensure the fitness of the nominee to serve. So I will ask you the following two questions. Since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?

No.

Have you ever faced discipline or entered into a settlement relating to this kind of conduct?

No.

Mr. Smith, on July 30, 2024, you wrote a post on Breitbart endorsing a Missouri Attorney General candidate. Do you recall that post?

I do, Senator.

So in that post, you wrote, quote, "Republican Attorneys General are critical in the fight against the radical left. We need true conservatives to defeat the abortion industrial complex, the lawlessness plaguing blue cities, and the woke ideology invading our schools," end quote. Can you define the word woke?

Senator, I was very proud to support my friend who was running in that election. That was a piece of political advocacy and as I was explaining to one of your colleagues earlier, the partisan views or political activity I've had before would play no bearing on my role as a judge.

Well, you're not responding to my question. Can you define for me what constitutes woke ideology? You wrote it. You meant something. I'd just like you to tell us what you meant by that.

Senator, in the course of a political campaign, that was a piece that I put out in support of my friend. But as a judicial nominee, I don't think it's appropriate for me to start commenting on political views because as a judge, I would not be, you know, applying those partisan or personal views while I was on the bench.

Well, the thing is that this whole idea of woke ideology and DEI, you know, the President has issued an executive order telling all of his administrative agencies to eliminate any support of DEI. And so you're going to get cases that use terms like woke or DEI, etc. And so I think it would be good for us to know what you mean by what you wrote. And you're not going to respond, so okay, there you go. You've been asked a number of questions by a number of my colleagues about who won the 2020 election, and you testified today that it is the Electoral College that matters in determining who is the President. So the House and Senate was in the process of certifying the electoral votes on January 6. Do you acknowledge that rioters on January 6 sought to stop this process to prevent Joe Biden from being the President? If that's a yes or no question.

So I understand that the counting of electoral votes was interrupted on January 6. I want to be very careful in getting beyond too much farther beyond that because there is still active litigation.

I think it's pretty clear what the rioters' intents were. And in fact, if you don't want to answer that straightforward question, I have another one. Do you also acknowledge that a number of these rioters, some 1,500 or so of them, were convicted and that President Trump pardoned them? Do you acknowledge that fact? Yes or no?

I think I think that is what happened, Senator.

So you represented I'm glad that you actually acknowledged a factual question that he pardoned all these rioters who were very intent on beating up our police here and trying to stop the counting of the Electoral College. So Mr. Smith, you have represented President Trump in multiple lawsuits in which he has been found liable for defaming and committing sexual battery against E. Jean Carroll. In these cases, you represented the President in his personal capacity. If a case comes before you in which President Trump's personal interests are heavily implicated, will you recuse yourself?

Senator, I've been very proud to represent the President in those cases.

Well, will you recuse yourself?

I will recuse from any case I've been personally involved in. For any other case, I would consult the judicial canons and the appropriate recusal rules. I may need to consult with my colleagues.

Well, considering the kind of representation that you've provided President Trump, you do cite to the canons of ethics and the code of conduct for United States judges requires a judge to disqualify himself, quote, "in a proceeding in which the judge's impartiality might reasonably be questioned," end quote. I would say that in any case involving President Trump's personal interests, you should recuse yourself because it is very clear where your loyalties lie. Thank you, Mr. Chairman.

Senator Hawley.

Thank you very much, Mr. Chairman. Mr. Smith, congratulations again. It's nice to see you now in that chair. Look forward to seeing you behind the dais here sometime soon in the Eighth Circuit. Let me just ask you. You served as chief of staff and first assistant to my predecessor Missouri and now my colleague Senator Schmitt. While you were in the AG's office, Missouri took on some of the most consequential state-level litigation in the country, I think it's fair to say. Vaccine mandates, big tech censorship, the landmark case against China that resulted in a $24 billion judgment. Can you just describe for us the role that you played in setting litigation strategy while you were in the office and what cases what those cases taught you about the relationship between state sovereignty and federal power?

We had a great team in the Attorney General's office led by by the person who came after you, now Senator Schmitt. In each of those cases you mentioned, in my role, I got to to help line up the attorneys who would work on the case, work with them on strategy and arguments, review draft and final pleadings. In some of those cases you mentioned, I was the attorney of record when the case was filed and then would help throughout the course of the litigation with whatever the team would need. We had some great attorneys in that office, and I was proud to be part of the team. And as it relates to the last part of your question on state sovereignty, the founders set up a very important vertical separation of powers that in which states play a key role. And in the Attorney General's office, I learned how important the state sovereignty and the ability to represent those interests in that office can be.

I want to I want to shift gears for just a second and talk about a report that was released yesterday by the Department of Justice on the incredible weaponization and targeting of persons of faith in this country and pro-life Americans in particular. And I want to rehearse for you a catalog, I'm I'm sorry to say it is a very sorry catalog of abuse of power perpetrated by the last administration at the highest levels of that administration, the FBI, the Department of Justice, all the way to the White House. The report that was released yesterday was based on a review of 700,000 internal records that detailed in striking detail in with striking specificity, I should say, how the Department of Justice under Joe Biden used the FACE Act to go after pro-life Americans. That is, they they used pro-abortion groups, they they brought cases that were tenuous at best in order to intimidate pro-lifers, people like Mark Houck, who was a was and is a law-abiding citizen who had the temerity to go and pray outside an abortion clinic and for that crime, quote-unquote, had a federal SWAT team show up at his door in the early hours of the morning, drag him out, handcuff him in front of his children who were screaming, they didn't know what they were going to do with their dad. A jury later acquitted him, thank goodness, on all charges. These are the same people who at the same time in the Biden Justice Department, while churches were being literally firebombed, while pregnancy care centers were being vandalized, they did nothing. The striking disparity is absolutely unconscionable. And this is also an administration that recruited spies, recruited informants into Catholic parishes in this country, parishes that the last administration deemed to be suspect, whose theology they didn't like. They wanted to try to get informants in the parishes to work with the FBI to spy on American parishioners. This is the sort of thing that frankly is unheard of in American history, this deliberate targeting of people of faith. So here's my question to you. You will, if you are confirmed, soon be on the bench and have charge of enforcing in a fair and evenhanded manner the First Amendment to the Constitution of the United States. Tell us about the importance of the First Amendment, about the importance of religious liberty, and the importance of this bedrock principle for the civil rights and political rights of all Americans that your religious faith shouldn't make you an enemy of the state in this country. What are your views on this?

The First Amendment is the beating heart of the Constitution. It's incredibly important. The Free Exercise Clause and the freedom of speech, those those core provisions to the Constitution that you were mentioning. I know this has been an issue that you have championed, Senator, and I would point out that I was privileged to be co-counsel for Mr. Houck on a case that was filed after he was acquitted to try to compensate his family for the raid at his house, for pointing the long guns at his wife and children. There was a settlement that we just worked out earlier this year on that case to try to compensate for what had been done. And you're right, it was there were some terrible facts from that case, and we were grateful to have worked out a resolution for Mr. Houck in that case.

Let me just in my remaining seconds here see if we can establish maybe you and I together can establish just a basic constitutional baseline. Should any American citizen be disfavored in law on the basis of their religious faith?

Absolutely not.

Should any American citizen be targeted by law enforcement on nothing more than the basis of their religious faith?

Senator, I don't want to prejudge any case, but I think the Supreme Court has said that viewpoint discrimination is not something that the government should ever do.

Is the federal government empowered and entitled to keep lists of churches that it theologically disagrees with, regards therefore as suspect, and use the federal law enforcement power to recruit spies, to recruit informants, or otherwise disfavor these religious organizations on nothing more than the basis of their theology? Can they do that under the Constitution?

I think the Supreme Court has said time and time again that the federal government is not supposed to be discriminating against anyone for their religious views.

That's exactly correct. I mean, the answer to all those questions is no, no, no. And it is time that we had in this country the return to the rule of law and the protection of the First Amendment of the United States, the protection for people of faith in this country. Yesterday's report was an incredible, stunning wake-up call, should be. And I hope that part of the remedy to this and the incredible abuse that we have seen in the last four years, five years, will be people like you on the bench, Mr. Smith, who will apply our Constitution and the rule of law evenhandedly, fairly, without fear or favor. I look forward to seeing you on that bench. Thank you, Mr. Chairman.

Senator Whitehouse.

Thank you, Chairman. Mr. Smith, I'd like to walk through what I see as the backdrop to this proceeding. As you may know, I think that there has been a deliberate effort to capture our courts by basically right-wing billionaires, many affiliated with fossil fuel interests. That the capture effort focused particularly on the Supreme Court. That it has been successful. That the methodology was the traditional methodology that is has a huge literature in the field of economics and administrative law of regulatory capture and agency capture. That in the same way that the robber barons who ran mines captured the mining safety commission so they always got the rules they wanted, and in the same way that railroad barons captured the railroad rate commissions so they always got paid what they wanted, an effort was made that has been effective to capture the Supreme Court. That's the background that I start with. One of the point people for this crew of right-wing billionaires was a guy named Leonard Leo. He was sort of their agent and court fixer in this effort. I have used a graph before that described the corporate structures that he set up to accomplish this effort. I refer to it as the Leo bug because it looks a little bit like an insect. This is the original shape of his effort. These central groups tend to be actual corporate entities. These are fictitious names. Fictitious names through which the other entities can operate. Lexington Fund is yellow here because until recently it was called Concord Fund. What happened with the Leo bug is that a billionaire dumped on Leonard Leo a $1.6 billion slush fund through the Marble Freedom Trust. And in the wake of that enormous flow of funds, we have seen the Leo bug metastasize. One new element is something called Alliance for Consumers Action. It's another fictitious name in this case for the renamed Lexington Fund. And if you take a look at Alliance for Consumers Action, you see that there are actually five different groups that are all almost identically named. Alliance for Consumers Action Fund, Alliance for Consumers Fund, Alliance for Consumers Action, Alliance for Consumers Action Fund, and Alliance for Consumers Action Fund. And they are connected to various different groups for which they operate under fictitious names. So Lexington Fund and Concord were the two that were in the original Leo bug. If you go back to the original Leo bug, you also see the Honest Elections Project. This was used to file an amicus brief in the Supreme Court without disclosing its affiliation with the Judicial Crisis Network, which spent millions of dollars to get three Leonard Leo selected Supreme Court justices appointed to the court. They didn't bother to disclose that. They filed an amicus brief in court under a fictitious name. And post Marble Freedom Trust and the $1.6 billion, we've seen the Honest Elections Project also metastasize. Now there's an Honest Elections Project. There's an Honest Election Project, not plural. There's an Honest Elections Project Action Fund. There's an Honest Elections Project Fund. There's an Honest Elections Project Action. And there's Honest Election Project Action. And again, they connect to as fictitious names for those same four Leonard Leo entities: Lexington Fund, Yorktown Fund, 85 Fund, Concord Fund, and a new one, the Publius Fund. So that's a lot of corporate activity. If you want to pull what this old Leo bug in its rather dark simplicity looked like, this is now what it looks like. There are more than 20 organizations, all with these very alike names: American Parents Coalition Fund, American Parents Coalition Action Fund, American Parents Coalition Action, American Parents Coalition, American Parents Coalition Action. And they all connect as fictitious names of those five Leo entities: Lexington Fund, Yorktown Fund, 85 Fund, Concord Fund, and Publius Fund. That is a pretty remarkable creation, presumably designed to mislead. Why would you have five or six virtually identical names for separate fictitious names screening corporate entities? And when we get to you, you've got connections with almost all of them. You've got connections with the Yorktown Fund. You've got connections with the Concord Fund. You've got connections with the Lexington Fund. You've got connections with Club for Growth Action in Missouri, American Patriot Fighters, First Principle Actions, Defend Missouri, Publius Fund, and Teneo Network, all of which get money from the Leonard Leo bug from that operation. So it looks to me like what we have here is somebody who is going to be planted on the court and bide your time until you get a case in which this group of front groups has an interest. And then they will turn up the way they do in the Supreme Court in a flotilla of phony front group amicae. And when that happens, I'm here to predict that you will rule for them 100 percent of the time.

Thank you. My Democrat colleagues have repeatedly issued this refrain about alleged ties to conservative funding groups and it's totally hypocritical. I would point out that my Democrat colleagues repeatedly supported President Biden's nominees who had ties to quote unquote dark money. They all supported Amir Ali, who headed the anti-police MacArthur Justice Center, which was funded by a liberal dark money organization, several of them actually. And they supported Nancy Maldonado, who expressly coordinated her nomination with the Raben Group, Demand Justice, and the Alliance for Justice, all liberal dark money groups. Mr. Smith...

Since the chairman has chosen to...

No, no, you've had your time and you went over time, Senator.

Everybody's gone over time.

Yeah, no, and I gave you exactly the amount of time everybody went over time.

Which is fine.

I would disagree with your characterization of how he responded to that question. I think he said it was outlandish, would not happen, and that there would be a process to hold someone like that accountable. And I think that the process...

Okay.

But you also called me out afterwards, so I was trying to respond.

I'm just rebutting a refrain that I've heard time and time again that deserves a response. And now it's my time to ask questions, Senator. Mr. Smith, you've served in private practice. You've been in different positions in government, in the Attorney General's office, a senior advisor in the Senate. How have those roles shaped your understanding of the judicial role that if you are confirmed that you will have on the Eighth Circuit?

I've been very grateful for the opportunities I've had. I've worked at a big firm, a small firm. I've represented companies and individuals. I've also gotten to represent children. I was a guardian ad litem for some foster kids who were born to really bad situations and I became their attorney at day three and the other at day four and was able to represent them until they got adopted into really good homes. And even though they may never know who I was, I was really grateful to get to play a small role in their future. I got to see in the cases that we handled in the Missouri Attorney General's office the importance of judges applying the rule of law, the Constitution, and the appropriate statutes to the case before them and to do so fairly and impartially. And I would also say that in the Governor's office, I also learned about the attention to detail and learning really complex and detailed records that sometimes span decades. And I got to be a part of some really important and meaningful decisions in the clemency process and in making some decisions that righted some wrongs in the past. All those experiences, I think, have made me a really well-rounded person to be able to see the law, as you said in your opening remarks, from a lot of different angles.

I want to ask you about a moment that you maybe had in one of these positions or probably most accurately in your role as an advocate when you were making your giving the defense of a legal position that was unpopular that may have cost you real professional or personal cost. Was there a moment that you can point to where the kitchen was pretty hot and you stood your ground and defended the law?

I would point to August of 2023 when we agreed at our firm to represent the President of the United States. At the time, he'd just been indicted, I think, the fourth time and a lot of the lawyers he'd had years before had also been indicted in some of those cases. That was a decision that my colleagues at the firm and I understood and that we thought was so important though to the Constitution and the rule of law to be able to be zealous advocates and to take on President Trump's case and we were very proud to have done so. There were some people who thought that wasn't the smartest thing to do. At the time, it was not certain how he would fare in the election, but it was still really important to me individually and to my colleagues to be able to take on that case even though it did carry great professional and personal risk. And I'm very grateful that we had the opportunity to represent President Trump in that case.

You know, as you know, this is a very different hearing for me given the relationship that we have had and the trust that I've placed in you and you earned it every single time. One of the questions that I on this committee now, being a former Attorney General in a time where there were a lot of challenges that we made that at the time, especially during COVID, some people didn't like what we did, some people liked what we did, but felt like it was important to stand up for people whose rights were being abused and you were there every step of the way. And so what I try to get to in this committee, I think that you've answered the originalist question, all of these kind of questions that come that are important questions. There's no doubt about it. These are important questions to ask. You're about to serve on a very important appellate court. But I try to get at this sort of courage test that's really hard to get at when you don't know somebody and you're at a hearing and you're trying to... That's why I asked the question, has there been a moment where you really stuck to your guns, you knew it might not be unpopular, but it was the right thing to do or it was the legally correct position to have? And with you, I already know the answer because I've seen you do it. I've seen you do it time and time again and no posturing, no puffery, just a very calm, steady demeanor that is ideally suited for the judiciary. I can't recommend somebody enough. I already have for this position in you and I'm just really proud of you and you're going to make a great judge because you appreciate the law, you appreciate our constitutional system, our structure, and the protections that are both vertical and horizontal that were built into our system. It's in your core and I really trust that you're going to do a great job and congratulations. Senator Welch.

Thank you very much. I was watching some of the earlier questions and answers, including about the election, and I just want to follow up a little bit on that. Who won the 2022 election for the United States Senate in Missouri?

Well, I think under the 17th Amendment, the election for United States Senate is carried out a little bit differently than the election for President. Prior to the 17th Amendment, the senators, as I recall, were chosen by state legislatures and that was the process in this country for about...

But I didn't ask for a history lesson. I'm asking who won the 2022 election for the United States Senate in Missouri?

Well, I think the history is important to explain that in the 17th Amendment, different than the 12th...

I'm going to interrupt you. Save it. Okay, it might be important, but somebody ran and somebody won that election. I'm asking you who won that election?

Yes, so pursuant to the 17th Amendment, the Missouri Secretary of State certified Eric Schmitt as the winner of the 2022 election.

Who won it?

As I just said, under the 17th Amendment, Eric Schmitt was certified and took the oath of office in January 2023.

But you agree that Senator Schmitt was elected?

I agree that he took office in January 2023 and that the election was cast and counted by the Missouri Secretary of State.

You know what? I believe the Senator Schmitt won that election.

In a landslide, Senator.

Well, I wasn't going to brag about it like that. But what is so hard about saying that? You were asked by Senator Blumenthal about the 2020 election and you could not say and won't say that Joe Biden was elected by the American people to be President, right?

I think my answers have been consistent with other answers this committee has heard that as a legal matter...

Well, okay, they're consistent with what every nominee has said in the rehearsed way. But you do understand that President Trump continues to deny that he lost that election and continues to assert that that election was stolen, correct?

I want to dispute that you say these were rehearsed or canned answers. These are my answers. These are the legally correct answers.

Okay. So you are aware that President Trump continues to assert that he won the 2020 election?

I'm aware that President Trump has a lot of views on the 2020 election.

Here's the worry here. You know, I was here on January 6. I was here when the mob attacked, when the gun was fired, when the mob was breaking the doors down. I didn't believe it was happening. And the reason I didn't believe it was happening is because this is the United States of America and we believe in the peaceful transfer of power and we renounce violence as a way to overcome the decision of the American people at the polling booth. But it did happen. And you can't acknowledge that President Biden won the popular vote, you can't acknowledge that under our process he won the election. You can't say that. I share the apprehension that Senator Blumenthal has that the nominees who come in here can't say the obvious. You win some elections, you lose some elections. And you as a judge still cannot just say plainly that Biden won and Trump lost. Is that the case?

I think I would want any judge to be very legally precise in what they said, and I've repeatedly referred to Article II and to the 12th Amendment and the process.

Well, what you're calling legally precise, a lot of people would call politically evasive. Mr. Chairman, what is the problem with acknowledging who won the election?

I have repeatedly acknowledged that Joe Biden was certified as the president January 20, 2021.

But what that suggests is it was like by accident, it was by subterfuge, it was somehow illegitimate. Do you believe any of those things to be the case?

I've explained the legitimate process of the Electoral College counting their votes in December of 2020, that's when those votes were cast across the country.

You know, under your approach, any of us can have whatever opinion we want as to whether the election was legitimate or not. You remember that then-President Trump filed I think like 60 lawsuits and virtually all of them except one were thrown out of court. Was there any judicial support for your view that says that there wasn't a conclusive outcome in the 2020 presidential election?

I think the view that I've shared here today is that there was a certification process that resulted in Joe Biden being president.

Thank you. I yield back.

Senator Schiff.

Sorry. Thank you, Mr. Chairman. Mr. Smith, I believe that a lot of the corruption that we're seeing in the administration and the White House traces back to a single decision of the Supreme Court granting the president immunity, absolute immunity when it comes to certain core functions of the executive, qualified immunity as to other official acts. The only area where a president would be personally liable for prosecution would be purely personal conduct, which is hard to imagine what that entails given that the president is president 24 hours a day. You were part of the president's legal team defending the president, articulating the president's position in Trump v. United States. I want to ask you about that. In the Court of Appeals, John Sauer, one of the counsel for the president, was asked by a Court of Appeals judge, Pan in the D.C. Circuit, whether under your theory of the case, his theory of the case, a president could order SEAL Team 6 to assassinate a political opponent and not be subject to prosecution for it. Sauer's answer was effectively, that's right, unless he were impeached first, he would not be subject to prosecution. Is that your view as well?

I think a similar question was also asked at the oral argument at the Supreme Court a few months later. I think the Supreme Court has now set forth a test in Trump v. United States that would address that hypothetical situation, which based on my relationship, I might add, I think is outlandish and I see no reason to think that that hypothetical would ever be a possibility.

Well, so is it your view as well as it was Mr. Sauer's that yes, the president could assassinate a political opponent and not be prosecuted for it if his party won't impeach him in the Senate?

So I think Trump v. United States that you mentioned, Senator, now has addressed to some extent the impeachment judgment clause and that is set forth in the opinion and would be something that I would be bound as precedent to apply if I was to address...

Well, with my hypothetical, what's your answer? The president orders SEAL Team 6 to kill his political opponent, one of them, maybe several, uses the military to do it, so it's within the scope of absolute immunity. Is it your view that he is not subject to prosecution for that if the members of his party will not impeach him?

With that hypothetical or any hypothetical that you might try to pose, Senator, I would just refer to the test that the Supreme Court has set out.

Well, I'm just asking you your view. So just tell me yes or no.

And I want to tell you that as a judicial nominee, I don't want to prejudge any case regardless...

Okay, well, I'm not asking you to prejudge. I'm asking you to talk about your view and also what you argued, what you counseled the president in that case. Did you make the argument as a member of the president's legal team that yes, he could assassinate his opponent if he used the military to do it and if his party wouldn't impeach him, that he would be protected?

So I can't get into any privileged conversations, as you know, due to attorney-client privilege, but I would refer to you to the remarks that John Sauer had at the Court of Appeals and the Supreme Court.

Well, the remarks that he made were yes, that's correct, he would be immune. So I don't hear any disagreement with you. Do you disagree?

I would disagree with your characterization of how he responded to that question. I think he said it was outlandish, would not happen, and that there would be a process to hold someone like that accountable.

Well, but the process, the question from the judge was if he were not impeached first. Is that your position? And that was Sauer's position. It sounds like that is your position as well. Let me ask you about a different part of the court's opinion, that is that the only area where he's truly liable is purely personal conduct. So let me ask you this: if a president uses their official position to enrich themselves, is he immune or is that purely personal?

So Chief Justice Roberts asked a similar question at oral argument. I think a counsel referred him to the...

So I'm asking you.

I would refer you to the same place, United States v. Brewster...

Don't refer me, just answer the question. In your view, if the president enriches himself through his office, is he immune or is that purely personal conduct?

So I think the United States v. Brewster decision said...

Okay, you're not answering my question. Let me ask you a different one, see if you'll answer that. If a president took bribes to change the country's policy in the Gulf, purely personal or subject to immunity?

Brewster dealt with bribes and in that case the court said that a legislature could be, a legislator could be prosecuted for bribery.

We're not talking about a legislator, we're talking about the president of the United States who has immunity now thanks to your work in part. So let me ask you another question: if a president demanded money from a media organization in order to approve a merger, immune or purely personal conduct subject to prosecution?

Every hypothetical situation will be addressed by the test in Trump v. United States on what type of immunity would apply.

Yeah, so you're not going to answer the question. What if a president falsely arrested a sufficient number of senators such that he couldn't be impeached? Is there a remedy for that?

For each of these hypothetical situations, the Trump v. United States test would be applied and some of those involve...

Okay, the Trump v. United States test would be applied, so the president is using the military to arrest members of Congress to prevent his impeachment. What's the remedy?

In each of these hypothetical scenarios, Senator, the remedy is the court would go through the different types of presidential power that might be at issue. There's a different test for absolute versus...

He's passed the test. He's got immunity unless he's impeached, that's what the court has held. And he's not impeached because he can't be impeached because he's arrested enough of the Senate to prevent his impeachment or even an impeachment proceeding. What's the remedy?

So Senator, as I've said, for each hypothetical scenario you're trying to present, the court would look at the different tests that Trump v. United States has presented.

I'm just going to have to conclude here that you don't want to express your view on it because I think it's a shocking view. I think it was a shocking view that John Sauer expressed in the Court of Appeals. I think it's a shocking view that you hold, that the president's authority is so profound that he basically is above and beyond the law, that there's no remedy for a president who would abuse his power the way we have already seen and I fear we'll see in the future. I think the Roberts Court will go down in history, that that will be their legacy as having enabled the worst form of corruption we've ever seen in the Oval Office. And you'll be a part of the team that made that possible. I yield back. Thank you. I would point out the implication that Mr. Smith can't be a good judge because he did his job as a lawyer is ridiculous and did what every advocate would do for their client. And in fact, the Supreme Court agreed with those arguments and so I don't view it as a strike against the nominee but rather a mark of distinction. With that, we've run out of senators to ask questions, Mr. Smith, so thank you. I want to thank your family for being here. Yes, Senator Kennedy.

Wanted to ask our counselor. You represented President Trump?

I did, Senator.

When you agreed to represent him, did you triple your hourly rate?

No, Senator.

You didn't? You just billed him regularly?

We are very grateful to represent the president of the United States. There was no inflation of cost. It was a regular rate that we gave to other clients.

That was a joke. But you handled it well.

Well, thank you, Justin, and thank you to your family. With that, will the nominees for the second panel please come forward and stand before the witness table and I will administer the oath. Would you please raise your right hand? 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?

I do.

Thank you. Have a seat. It's our normal process if you desire to introduce folks that are here with you, including your family, and then you may or may not give an opening statement, it's up to you. We'll start on my left and then move down the line. Mr. Kuhlman, the floor is yours.

Thank you, Senator Schmitt. Thank you to Chairman Grassley, Ranking Member Durbin, and all the members of the Senate Judiciary Committee for holding this hearing. I want to thank President Trump for the great honor of this nomination. I want to thank Senators Marshall and Moran for those very kind words of welcome. This is the professional honor of a lifetime. I'm the product of great people that have been around me my entire life, so there's no way I can thank everybody who is entitled to it and I'm not even going to try. I just want to acknowledge a few people. I want to thank my Lord and Savior Jesus Christ for all the blessings that he's bestowed on me. Of those blessings, I can't think of anything that brings me greater joy than my wife Lauren, who is the greatest blessing I've received. She's here today. She's been the best spouse you could ask for for 14 years and there's no way I'd be here without her. She's a great mother to the other great blessings in my life, my five children, who did not skip school to come here but who I want them to know that I love them and there's nothing I'm prouder of than of being their dad. I want to thank my parents Ann and Jerry who are here in person for their support today and not just today but every other day of my life. I want to thank my in-laws Robert and Sharon for raising such a wonderful daughter and then also for keeping my children this week so that their wonderful daughter could be here with me. Again, I can't thank all the professional colleagues in my life, but I do want to thank and acknowledge Judge Eric Melgren, who's not only the judge whose vacancy I've been nominated for, but was the judge that I clerked for and who's been a great friend, example, and mentor for the last decade. It's truly an honor to be here. It's an honor to sit here with Director Mattivi and Judge Powell, two other men that I've known and respect very well, and I look forward to answering any questions.

Thank you. Mr. Mattivi.

Thank you. Good morning Senator Schmitt, Ranking Member Durbin, distinguished members of the committee. I too would like to start by thanking President Trump for the tremendous honor of this nomination. I'd like to thank Senators Marshall and Moran. I would not be here were it not for their support and friendship. Thank you to Senator Roberts for his willingness to attend today and speak on my behalf. Thanks also to my boss, the Kansas Attorney General Chris Kobach, for his help and support both during this process and in general in our combined efforts to keep Kansas safe every day. I would like to recognize my family as has already been introduced by Senator Moran. I have received accolades for my work overseas assisting the Iraqis in reconstruction, but I want to point out that during that time I left home and left a wife behind with three small children and she's the one who managed the household and when people ask me what is my greatest accomplishment in life, it's those three kids. And I want to recognize both them and my wife for the part that she has played in their development into adulthood. I have friends here from almost every phase of my life, from high school, from paramedic school, from law school, from my professional career, from my short and spectacularly unsuccessful political career, and from my current occupation. I'm grateful to them for attending and I'm grateful for all of our friends and family back home who are watching this, including my many wonderful colleagues from the Kansas Bureau of Investigation. Senator, if fortunate enough to be confirmed, I will have the opportunity to return to the court, to the very courtroom in which I tried so many cases over more than two decades and to follow in the footsteps of federal judges from the District of Kansas for whom I have tremendous respect and admiration. I believe in the immutability of our Constitution. In Iraq, I watched firsthand as that country struggled and fought to emerge from generations of dictatorial rule and chart a path toward implementing the rule of law. I know that the rule of law should not be taken for granted, it should be treasured, it should be vigorously protected, especially in our federal courts. I will strive to be a judge who is firm but fair. I will approach the law with reverence and the litigants with respect. I will work every day to inspire confidence in the judiciary and the future of our country. Thank you again for your consideration, Senators, and I look forward to answering your questions.

Thank you. Mr. Powell.

Thank you Senator Schmitt, Ranking Member Durbin, and members of the committee. Thank you for the opportunity to discuss my nomination to the United States District Court for the District of Kansas. Obviously, you don't get to be in this chair without many people helping you out along the way in my life and I can't thank all of them today, but I do want to thank a few. I want to thank President Trump for his nominating me to the federal bench. It's a great honor and I thank him for his confidence in me. I also want to thank our United States Senators, Senator Moran and Senator Marshall, for their support. No nominee that requires Senate confirmation gets very far without the support of their home state senators. I also want to thank Attorney General Chris Kobach for the confidence that he placed in me by bringing on him, me on into his team as Solicitor General. And perhaps most importantly, I want to thank all my family members and friends that are here with me today. They've come from far and wide. I particularly want to thank my wife of 40 years. Anything that I've achieved in my life is due no small measure to her love and support and I love her very much and I appreciate her and the family that we've built. We have four kids and six grandchildren and that is my greatest legacy and I'm very blessed to have her with me. I wish my kids could be here, but they have lives and families to tend to, but I know they're watching online. I'm also grateful to have other family members here today, my good friend Mark, who he and I have been friends since the first day of law school and we've shared over 30 years of friendship together. And I also want to thank another special friend, my friend Brian, who is a high school friend who lives and works here in Washington, D.C. It's one of the reasons why you want to become a federal judge is to serve your community, serve your loved ones, and do justice in America. And if I'm fortunate to be 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 fairly and without favor in every case. I'm happy to stand for the committee's questions. Thanks.

Thank you. I'll just, I'll start and I'll just ask if each one of you can address it. I'll ask a two-part question, I suppose, and then I'll turn over to Senator Durbin. But so, how would you describe your political, I'm starting that, how would you describe your judicial philosophy, very important distinction, your judicial philosophy? And can you identify a moment in your professional life where, you know, things may have been difficult but you did the right thing anyway, you adhered to the law even though it may have been unpopular?

Thank you, Senator. I would describe myself as an originalist and a textualist. That would be my approach to interpreting statutory or constitutional provisions. I'm happy to explain that further if you would like, Senator. As for your questions about standing up to hard situations, it's honestly hard to pick one. I've represented my clients in high-profile cases and cases that had negative media attention and negative scrutiny and my clients have been really scared in those situations. I've had clients who have had death threats in types of cases because of coverages and often unfair coverage that those cases were getting and it has truly been my professional honor to stand next to them and to kind of a lot of times stand in front of them and be their public-facing voice and to be the one advocating for them in court and to be the one preparing them and telling them it's going to be okay and standing with them in court or in a deposition. I've come across that situation probably more times than I can count. And then on the flip side of that coin, the other hard thing is I've had clients who have had real problems, who've had exposure, who I needed to counsel strongly and firmly about how to proceed and the issues with their case and, you know, a lot of times people want their lawyer to tell them what they want to hear and a lot of times being a good lawyer involves telling your clients what they don't want to hear and I've done that more times than I can count too.

Mr. Mattivi.

Senator, I would describe my judicial philosophy as textualism when it comes to interpreting statutes and originalism when it comes to interpreting the Constitution. It was Justice Scalia who I believe made that distinction, at least as I'm aware of it, and I agree with that distinction and that's the distinction that I would follow on the bench. With regard to an act of courage, I would cite you to something that has happened fairly recently in Kansas and I can't comment on the specifics of the investigation because there is litigation pending, but avoiding the specifics and just talking about what happened, it would be an effort that we undertook recently, meaning the Attorney General's office and the Kansas Bureau of Investigation, to enforce marijuana laws in Kansas that had not been enforced since the passage of the Farm Bill. And I knew that that wasn't going to be popular with certain segments of the political spectrum, I knew it wasn't going to be a popular with the public, and I knew it would draw a tremendous amount of backlash, but nevertheless based on the science that we were seeing, based on the harm that we were seeing, it was undoubtedly in my mind the right thing to do and as a result, that's what we did. evidence that we were seeing, based on the harm that we were seeing, it was undoubtedly in my mind the right thing to do. And as a result, that's what we did.

Mr. Powell.

Senator, like the others, I agree I'm a textualist when it comes to statutory construction and an originalist when it comes to the Constitution. With regard to a difficult case, I can recall one when I was on the Court of Appeals where this defendant had been convicted of murder, first-degree murder, and sought habeas relief asserting ineffective assistance of counsel and his counsel's performance was deficient and in fact it was deficient enough to undermine our confidence in the outcome of that trial and so we vacated his conviction and ordered a new trial. Even though the evidence there was strong evidence, anytime you let someone who's been convicted of murder go, that's always a difficult thing to do, but it was what the law required and that's what we did.

Senator Durbin.

Thanks, Mr. Chairman. Mr. Powell, 35 years ago I introduced an amendment in the House to ban smoking on airplanes. It passed bipartisan vote and it started an effort to stop big tobacco from selling its dangerous product to our children and a lot of others in America. It resulted in attorneys general from across many states joining together in lawsuits to hold the tobacco industry accountable for their lies where they refused to acknowledge the deadly addiction that tobacco caused. It took years and years and years for those lawsuits to move to a point where finally tobacco was brought to its knees and above all they stopped their merchandising to children in our country. I think that made America better. At the time about 25 percent of school children were smoking, 25 percent, and today it's less than five percent. There's still problems with vaping and the like, but I think that settlement made a difference. And I wondered if there was anyone across America who would stand up and speak out against that settlement. Turns out it was you. You're quoted as saying it's not politically correct to criticize the tobacco settlement, but I am not willing to junk 500 years of common law in exchange for a pot of gold. Can you explain that?

Yes, Senator. My main complaint with the settlement was particularly the attorney fee provisions. There were provisions in the settlement agreement which provided for huge monetary payments to the attorney general's local counsel and it far exceeded what would have been reasonable for attorneys to receive in terms of pay. I think it was $27 million that the lawyers in local counsel received and literally the only thing they did was to file the complaint. That was my principal complaint with the settlement, Senator.

The quote I've been given does not include any reference to lawyers' fees. It's opposition to the settlement. Did you have any opposition to the settlement per se?

Not principally. My principal complaint, Senator, was opposition to the attorney fee provision.

Let me ask the other two individuals before us today. Thank you for being here. You both have a connection to the August 2023 law enforcement raid on the Marion County Record, a newspaper in Kansas in a very small town. The incident received national coverage and outrage over a violation of freedom of the press. Mr. Mattivi, as Kansas Bureau of Investigation's director, you initially supported the raid, stating days afterwards that your agency needed to be able to investigate, quote, credible allegations, and quote, no one is above the law, whether a public official or representative of the media. After widespread criticism of the raid, KBI took over the investigation and announced five days after the raid that all of the seized materials would be returned to the newspaper. So I'd like to ask you several questions that the two of you should address if they apply. Do the KBI have any role on the raid on Marion County Record and based on this incident, has KBI made any changes in how it approaches investigations involving the press? If you're confirmed to the bench, what factors will you consider if you're asked to sign off on a warrant authorizing the search of a press outlet? I didn't include one important fact. There was a judgment in behalf of the Marion County Record of $3 million for this raid. Mr. Mattivi, would you like to start?

Yes, Senator Durbin. Thank you. The media reports at the outset of this event talked about the KBI being involved in the raid and in fact even represented the KBI led the raid. Ultimate facts determined that that was not the case at all. There was no KBI agent present on the raid. I have to be careful about talking about the raid itself because there is still litigation pending. What I would point out to you, Ranking Member, and to everyone else is that of all of the litigation that took place in that case, the KBI was not a party to any of it. And I think that demonstrates conclusively what the KBI's involvement in the raid was. With regard to the First Amendment and the protections afforded under it, I believe they are a foundational underpinning of our society. I believe that the press is absolutely protected under the First Amendment. At the same time, I believe that the press is not above the law nor is any individual. I don't believe those are mutually exclusive. I believe they both can be true. I believe they both are true. And that would be my stance on the bench.

Thank you. Mr. Kuhlman, would you respond?

Yes, Senator. So in the Marion County cases, I was retained after the raids happened to represent the Marion County Sheriff's Office and the Marion County officials that were defendants or potential defendants. My clients were the ones who entered into that consent judgment that you referenced that resulted in the payment of $3 million. My understanding is that those other, there were several different plaintiffs who were effective and affected and have filed suit against the city that was also involved in that event. That litigation is still pending. So like Director Mattivi, I hesitate to comment too much on the pending litigation, but if fortunate enough to be confirmed, I believe the First Amendment is a foundational principle of our Constitution. I'm a strong believer in it and I will apply the binding precedent regarding the First Amendment fairly and faithfully.

Thank you. Thank you, Mr. Chairman.

Thank you, Senator. Senator Kennedy.

Thank you, Mr. Chairman. Mr. Kuhlman, have you ever been to Manhattan?

Manhattan, Kansas?

No, sir, Manhattan, New York.

I have not.

Okay. Are you familiar with, maybe you've seen it in a movie, Third Avenue, Midtown?

Only by reputation.

Okay. Well, it's a major east or north-south traffic corridor, very busy, a lot of traffic. I don't know if you saw the news yesterday, but about 200 protesters in New York sat down in the middle of Third Avenue, completely blocked traffic. They were wearing t-shirts that said no war, no ice, free Palestine. Completely shut everything down for about an hour. Police had to come in, they arrested some of them. This is New York, nothing will probably happen to them. But the point is it blocked traffic severely. Let's suppose a medical transportation service was trying to get a heart to a transplant patient at a hospital nearby and obviously the traffic jam delayed him and the patient died. You with me?

Yes, Senator.

All right. Does the patient's family have a cause of action against the protesters or the leader of the protest?

In any hypothetical, I would hesitate to completely prejudge the situation without knowing all of the facts.

No, I'm not, come on, counselor. Give me your legal opinion. This is a first year, first year law student question.

I believe they they would, more than likely. I think that would be a matter...

What would be the issues that would arise? I just want to understand how you think. Sure. I think that would be... If you're defending the leader of the protest, what's the first thing you're going to say?

If I'm defending the leader of the protest? Yeah. I would probably argue about causation and foreseeability. I mean, that would be really a state law negligence type...

What do you mean causation?

Well, for any negligence claim, one of the elements is you have a duty to somebody, did you breach that duty, did you cause them an injury? And part of the duty causation calculus is how foreseeable that injury was.

Okay. What's the difference between legal causation and proximate cause? So, cause in fact and proximate cause.

Yeah, so cause in fact is the specific cause of death or injury, rather. And in this case, it would probably be whatever heart ailment this poor person that you've described had would probably be the cause in fact of his death. But proximate cause does not always have to be the cause in fact and there can be multiple causes. So a proximate cause is but for this thing happening, this injury may not have occurred.

Okay. I got it. Good. Judge Powell, you said you're a textualist.

Yes, sir.

What does that mean?

It means you follow the words of the text of the statute.

Okay. What if the text of the statute's not clear, what do you do?

Well, one of the approaches that I do use is I want to look at the language in context of the statute as a whole and try to harmonize the language. I may use go to dictionaries to help me find definitions of words.

Well, how ambiguous does a statute have to be before you're going to look to secondary sources?

Well, ambiguity means the language is subject to two or more interpretations. And so if there's language...

Reasonable interpretations.

Correct.

Well, I mean, does it have to be 50 percent ambiguous or 52 percent or 51 percent?

Well, I'm not sure how to apply the 51. To me, ambiguity...

That's what I'm asking you is how you apply it.

Well, ambiguity means that the words that are used are susceptible to two or more different definitions. That's so I don't know whether that's 50 percent or 52.

Why do you go through, I'm not suggesting you're wrong, but why do you go through that exercise? Why do you want to spend hours agonizing and debating how many lawyers can dance on the head of a pin to try to decide whether it's ambiguous? Why don't you just go look at the statute and also go to the secondary sources?

Well, that's what I do, Senator.

But you only go if it's ambiguous.

Well, because the plain words of the words, you know, the plain meaning of the words in front of you are what guide you and you apply the common understanding...

I just, what I'm asking you is, Your Honor, why? Don't you want to just, don't you want to look to the problem that the legislature was trying to solve? Why do you want to be a slave to the plain words that reasonable people can disagree of? Why don't you just start with, I've got a statute, let me see what problem the legislature was trying to solve in interpreting this statute?

I have done that, Senator, and I don't disagree with that approach.

But you said you were a textualist. You don't even get to that approach unless the words are ambiguous.

Correct. I agree with that.

I know. So which is it?

Well, you look at...

Do you always, are you always a slave to the words and the debate about plain meaning or do you step back and go plain meaning or not, I want to look at the problem legislature was trying to solve? Which is it?

Well, Senator, the best way to understand what the legislature intended...

Yeah, but first, then he, our chairman's a great guy. He's like awesome. He's going to cut me off anyway. Tell me which one you use.

Senator, as I'm trying to say, when you're trying to discern the legislative intent, you first look at the words the legislature itself used and you apply the common ordinary meaning.

Okay. And let's suppose, let's suppose they're plain. They're plain to you.

I'm sorry, what?

Let's suppose the words are clear. Okay. Why don't you, you would stop there, right?

You apply the words, yes.

Okay. Why? Why don't you go, well, you know, I want to get this right. So let me adopt a belt and suspenders approach even though the words are plain, let me delve into the legislative history and try to understand what problem the legislature was trying to solve. Why not do that?

Because the language tells you what it is they're trying to do and what it is they want to solve.

Where's it written you how you can't go further than the language of the statute?

Well, again, Senator, if there's some doubt when you look at words in context...

Even if there's no doubt. Not a doubt in your mind.

That's why you because you're carrying out the will of the people. It's the will of the people that's expressed in the pages...

No, you're trying to, you're trying to apply a statute passed by the legislature. Correct. Okay. Can I ask one more? Tell me how to say your name. Your last name, sir.

It's Mattivi, Senator.

Mr. Mattivi, I'm 17 and I go to work for McDonald's. Go to apply for a job. And I'm wearing a burka. And the McDonald's manager says I really want to hire you but we don't allow religious symbols at my restaurant or at our restaurants. What does law say about that? religious symbols at my restaurant, or at our restaurants, what does the law say about that?

The law prohibits the application of a religious test applied by the government, right, not by private employers. So I would say that's the basis...

You sure about that?

Well, it depends on whether, I mean there's other factors.

Can, let me just ask you, can McDonald's say we have a policy against religious symbols and you can't wear a burka? Who's going to win? McDonald's or the person wearing the burka?

Honestly, Senator, I'm not sure who would win in that situation. I'd need to know more facts.

I appreciate your honesty. Thank you. Thanks for your indulgence, Mr. Chairman.

Anything for you, Senator. I especially appreciated your commentary and listen carefully, Eric, and you're right about courage. It's easy to play to the crowds. But when the going gets tough and you got to follow the law and it's not going to be popular, that's what the rule of law is all about. Okay, I want to thank the nominees for your testimony here today, written questions for the record may be submitted until April 22nd at 5:00 PM, this hearing is adjourned.

That's right. That's right. Thank you, Senator.