Key Takeaways
- •Justin D. Smith (Nominee, U.S. Court of Appeals for the Eighth Circuit) defended his representation of Donald Trump in immunity and defamation cases during a contentious confirmation hearing.
- •Smith stated he would apply originalist principles and argued that the Electoral College, not the popular vote, is the constitutional mechanism for determining presidential election winners.
- •Sen. Blumenthal (D-CT) pressed Smith on the 2020 election results, leading the nominee to repeatedly cite the Electoral College certification rather than stating who won the popular vote.
- •Sen. Grassley (R-IA) praised the nominees as constitutionalists, while Sen. Durbin (D-IL) and Sen. Whitehouse (D-RI) questioned their ties to conservative "dark money" groups and political organizations.
- •The committee will vote on whether to advance these four nominees for lifetime federal appointments, potentially filling all current vacancies in the District of Kansas.
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Hearing Analysis
Overview
This hearing was held to consider the nominations of four individuals to the federal bench: Justin D. Smith for the U.S. Court of Appeals for the Eighth Circuit, and Jeffrey M. Kuhlman, Tony Mattivi, and Anthony J. Powell for the U.S. District Court for the District of Kansas. The proceedings were marked by sharp partisan divisions, primarily centered on Justin Smith’s previous role as personal counsel to President Donald Trump and his involvement in high-profile litigation regarding presidential immunity and election challenges. While the Kansas district court nominees received largely bipartisan praise for their local service and professional credentials, the Eighth Circuit nomination sparked intense debate over judicial independence, the 2020 election results, and the influence of "dark money" in the judicial selection process.
Key Testimony & Policy
Justin D. Smith, the nominee for the Eighth Circuit, faced the most rigorous questioning due to his extensive history as an advocate for President Trump and his tenure in the Missouri Attorney General’s Office. Smith highlighted his experience in constitutional litigation, including his work on *Trump v. United States* regarding presidential immunity and his representation of the President in defamation suits brought by E. Jean Carroll. He emphasized his commitment to originalism, defining it as an effort to determine the "original public meaning" of constitutional provisions at the time of their ratification. Smith also discussed his work protecting the rights of farmers and navigating the regulatory landscape for the Missouri Department of Agriculture, arguing that this experience prepared him for the Eighth Circuit’s heavily agricultural jurisdiction.
The three nominees for the District of Kansas—Tony Mattivi, Anthony J. Powell, and Jeffrey M. Kuhlman—were presented as a "consensus" slate representing diverse legal backgrounds. Tony Mattivi, the current Director of the Kansas Bureau of Investigation (KBI), highlighted his 20-year career as a federal prosecutor, including his role in the capital prosecution of the Al-Qaeda operative responsible for the USS Cole bombing. Anthony J. Powell, the Kansas Solicitor General and a former state appellate judge and legislator, emphasized his decades of service across all three branches of state government. Jeffrey M. Kuhlman, a partner at Watkins Calcara, focused on his experience in rural private practice and his former clerkship for Chief Judge Eric F. Melgren, positioning himself as a voice for rural Western Kansas.
Policy discussions also touched upon the False Claims Act, with Sen. Chuck Grassley (R-IA) praising its use in a recent Department of Justice (DOJ) civil rights fraud initiative to recover funds from contractors allegedly engaging in discriminatory Diversity, Equity, and Inclusion (DEI) practices. Sen. Josh Hawley (R-MO) raised concerns regarding the Freedom of Access to Clinic Entrances (FACE) Act, citing a DOJ report on the alleged "weaponization" of the law against pro-life activists, specifically mentioning the case of Mark Houck.
Notable Exchanges & Partisan Dynamics
The most contentious exchanges occurred between Justin Smith and Democratic members of the committee regarding the 2020 election. Sen. Richard J. Durbin (D-IL), Sen. Richard Blumenthal (D-CT), and Sen. Peter Welch (D-VT) repeatedly asked Smith to state plainly who won the 2020 election and the popular vote. Smith consistently responded by citing the 12th Amendment and the Electoral College certification process, stating that Joe Biden was certified as the winner. This led Sen. Blumenthal to characterize Smith’s answers as "pathetic" and "evasive," questioning his courage to exercise independent judgment.
Another significant confrontation involved Sen. Adam B. Schiff (D-CA) and Smith regarding the Supreme Court’s decision in *Trump v. United States*. Sen. Schiff pressed Smith on whether a president could order SEAL Team 6 to assassinate a political opponent without facing prosecution, referring to arguments made by Smith’s colleague, John Sauer. Smith declined to answer the hypothetical, stating he would apply the test set forth by the Supreme Court and refusing to comment on privileged attorney-client conversations.
Sen. Sheldon Whitehouse (D-RI) utilized a visual aid he called the "Leo bug" to allege that Smith was part of a "captured" judicial network funded by right-wing billionaires and coordinated by Leonard Leo. He listed Smith’s affiliations with various organizations, such as the Yorktown Fund and the Club for Growth, suggesting Smith would rule in favor of these interests. Smith defended his record, noting that some listed affiliations were the result of clerical errors and that his past political advocacy would not influence his impartiality as a judge.
Organizations Mentioned
- Supreme Court of the United States: Discussed extensively regarding its recent rulings on presidential immunity and the 2020 election, which serve as binding precedent for the nominees. - Kansas Bureau of Investigation (KBI): Mentioned as the current employer of nominee Tony Mattivi, who serves as its 13th Director. - Department of Justice (DOJ): Cited regarding its civil rights fraud initiative, the enforcement of the FACE Act, and its role in litigating against the nominees' former clients. - Club for Growth: Mentioned by Sen. Durbin regarding Justin Smith’s past service as a treasurer for its Missouri chapter and alleged self-dealing involving Smith's consulting firm. - Lexington Fund / Yorktown Fund: Identified by Sen. Whitehouse as "fictitious names" for corporate entities within a "dark money" network tied to Leonard Leo. - University of Missouri (Mizzou): Noted as the alma mater of Justin Smith; the Dean of its Law School provided a letter of support for his nomination. - Federal Bureau of Investigation (FBI): Discussed in the context of its investigations into pro-life activists and its alleged recruitment of informants in Catholic parishes.
What's Next
The committee will hold the record open for follow-up Questions for the Record (QFRs) from members who were unable to attend or who seek further clarification. Following the completion of the written question period, the committee is expected to schedule a business meeting to vote on whether to report the nominations of Justin D. Smith, Jeffrey M. Kuhlman, Tony Mattivi, and Anthony J. Powell to the full Senate for a confirmation vote.
Transcript
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.
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