Hearings to examine certain pending nominations.

good morning everybody we welcome you to today's hearing we have two panels first panel features circuit judge nominees benjamin flowers sixth circuit mathew schwartz second circuit our second panel has one nominee uh don uh berfume uh to serve as inspector general of the department of justice for months now my democratic colleagues have relentlessly attacked nominees about the twenty twenty election i think it's been unfair been hypocritical as i explained a few weeks ago article two and the twelfth amendment of the constitution dictate how president elections are won under our constitution the electoral college casts ballots and the vice president certifies the win winner at a joint session of congress so it's pretty simple there's no other way to win an election when asked about the twenty twenty election recent judicial nominees and maybe others have also given legally correct answers joe biden was certified as the winner but my democratic colleagues won't accept that And they press, and they press again, for a sound bite. They don't care about the answers, they just want a clip to go viral. So my democratic colleagues attack the nominees. That's the follow-up. They go them to weigh in to political controversial topics. when the nominees don't bite my democrat colleagues accuse them of being evasive members of this committee have even been called uh the nominees derogatory names like cowards like monkeys like puppets the progressive media has gleefully reported about Quote unquote contempt and ridicule the nominees are subject to at the hearings. Once again the New York Times leans leans into its role as a mouthpiece of the Democratic Party. These are these attacks are just beneath our office. They're hypocritical. If we wanna talk about evasive answers, let's rewind the clock. Justice Jackson's hearing. Senator Blackburn asked a simple question. What is a woman? A judge must be able to assess whether a litigant is entitled to protections. Um, that the federal law affords women i think we all agree on that well justice jackson wouldn't answer that question she simply stated she couldn't because quote unquote i'm not a biologist how can my democrat colleagues criticize nominees for giving a direct legal correct answer when their own nominees wouldn't answer a basic factual question that we've understood for the entire six thousand he- year history of humankind. We all know why. It's because my democrat colleagues aren't concerned about evasive answers. They want political theater. the democrats don't like our president and they wanna poke him so they're attacking nominees for refusing to comment on matters of political debate regarding that twenty twenty election if that weren't true then surely my democratic colleagues have always demanded direct and robust answers to questions about the twenty twenty election Right? Let's take a look at how Justice Jackson responded when she was asked about the twenty twenty election. So I have a poster here. I want everyone to see this. Especially my democratic colleagues to see this. And I want the American people to see this. And I want the New York Times to see it. When asked if she had ever committed commented on the results of the twenty twenty election justice jackson stated quote it would be inappropriate for me to publicly weigh into a subject of political debate end of quote let me say that again to be very clear justice jackson said it would be inappropriate for me to publicly weigh into any subject of political debate. She gave the same answer when asked whether she ever expects expressed skepticism about the twenty sixteen election results. Well, isn't that something? Justice Jackson, like every nominee to come before this committee, this Congress, didn't think it was appropriate. for a judicial nominee to weigh in to the political debate concerning the results of the twenty twenty election. And I hope the New York Times gets that. Were my democratic colleagues enraged by Justice Jackson's suggestion that the results of the twenty twenty election were a matter of political debate? did they say her statements were quote orwellian in denial of reality end of quote did the partisan progressive scribes at the new york times publish an entire article describing her responses quote unquote astonishingly of course they didn't her answer then the answers of judicial nominees recently was entirely prudent and unremarkable. The hypocrisy from the other side and the New York Times is breathtaking. My Democrat colleagues need to stop and reflect. Why have they created a month-long circus about trump nominees for making the exact same pay point that justice jackson made during her confirmation hearing. i'm satisfied with how recent nominees have answered the questions about the twenty twenty election from here on they should just quote justice jackson they deserve better than hypocritical attacks and the american people do as well mister berth berth fume uh earned his law degree from uh new york university in buffalo school of law in two thousand he began his legal career as an assistant district attorney in manhattan in two thousand five he transitioned to private practice where he advised on civil enforcement matters as well as yeah uh government and internal investigations in twenty ten he joined the justice department office of inspector general since then he's been involved in several sensitive investigations to root out misconduct, fraud, waste and abuse. These include the FBI's partisan Crossfire hurricane probe, and more recently a an effort to determine the previous O OIG's level of invest invest involvement in Jack Smith's Arctic Frost witch hunt. as my and senator johnson's oversight has exposed that partisan investigation secretly sought and obtained the records of many members of this very judicial committee he briefly served in the da s office of compliance and since twenty twenty three has served as an advisor uh to the inspector general in the department of housing and urban development in twenty twenty five he returned to the justice department in detailed capacity he briefly served as acting inspector general and is currently serving as senior advisor of deputy to the deputy inspector general he brings a wealth of experience and i look forward to hearing him today senator Your way.

Thanks, Mister Chairman. Breaking news yesterday. The Department of Justice and Internal Revenue Service reached a settlement agreement in Trump versus Internal Revenue Service that established a two million doll- two billion dollars, I'm sorry, two billion dollar settlement fund. This anti-weaponization fund will likely be used to financially benefit the president, his family, his political allies, affiliated individuals and related companies in trust, as well as individuals who were tried for their crimes at this capital on January sixth, twenty twenty one. Moreover, the memorandum in support of the fund establishes that the United States is quote, "forever barred and precluded from prosecuting or pursuing claims against President Trump, related or affiliated individuals, including without limitation family or others filing jointly or related companies in trust. This Mem- Memorandum also states that the United States has no liability whatsoever for misuse of funds into the anti-weaponization fund, thereby facilitating the misuse of funds by individuals who've already shown a complete disregard for the law. Imagine if Joe Biden went this far. Would we have a hearing in the Judiciary Committee? I certainly know we would, and you do too. Will there be a hearing in this committee when it comes to this new slush fund, which I quote, forever bars and precludes from prosecution or pursuing claims against President Trump, related individuals, including without limitation family and filing jointly. It's a get out of jail free card forever. And that's the word that's used forever for the Trump family from causes of action by the Internal Revenue Service. Worth a hearing in the Judiciary Committee? I certainly hope so. Mister Chairman, my congratulations to the nominees and their families. Hearings like the one we're holding today are a crucial part of the Senate's advise and consent process. It has never been more important that the Senate exercise this constitutional duty, given that President Trump expects his nominees to be loyal, first and last loyal to him, not to the Constitution or the rule of law. This is not hyperbole. It is not conjecture. Just last week, President Trump posted another rant on social media, lambasting judges who had the audacity to follow the law instead of catering to his whims. After claiming his Supreme Court nominees have, quote, " shown so little respect", close quote, because they ruled against him, President Trump said federal judges should, quote, be loyal to the person that appointed them. Very subtle. In fact, judges take an oath that they will administer justice without respect to persons and, quote, will faithfully and impartially discharge and perform all duties under the Constitution and laws of the United States. Nowhere, nowhere in this oath does it say the judges are beholden to the president who nominates them. Nonetheless, the President continues to nominate his personal attorneys to serve as judges. Matthew Schwartz, who we'll hear from this morning, the third personal attorney of the President, who he's nominated to a circuit court seat following the nominations of Emil Beauvais and Justin Smith. For his loyalty to the President, Mr. Schwartz has been rewarded with a lifetime appointment to the second highest court in the land. In fact, he continues to represent the President in court. in not one but two pending cases while this nomination proceeds. That includes the appeal of a New York State jury verdict, finding President Trump guilty of thirty-four felony counts of falsifying business records, stemming from a hundred and thirty thousand dollar hush money payment to an adult film star, Stormy Daniels. For aspiring judges not lucky enough to become one of the president's personal attorneys, They can jockey for President Trump's support in another way, supporting his legal arguments. Benjamin Flores, who is before us today, fits that bill. In one amicus brief, he challenged Pennsylvania's administration of the twenty twenty election. Why? Because President Trump claims to have lost I'm sorry, President Trump lost the popular vote in Pennsylvania and was trying to overturn the results. Earlier this year, Mister Flores filed a Supreme Court amicus brief supporting the president's constitutional attempt to limit birthright citizenship. This executive order by the president has been rejected by every judge who's considered it. Judge John Kunar, who was appointed by President Ronald Reagan, called it, quote, " blatantly unconstitutional." Mister Flores has shown repeatedly, whether in government service or in private practice, his North Star is loyalty to President Trump. It's no surprise that his nomination is before us today. President Trump is disappointed in the Supreme Court justices he appointed during his first term. While they are reliable and conservative, they occasionally rule against him. For Donald Trump, this is an unforgivable act of disloyalty. So in his second term he demands that appointees bend a knee, kiss the ring, and demonstrate blind loyalty. President Trump is now putting forward nominees who have shown they're willing to ignore the rule of law, so long as they follow his agenda. That is in direct conflict with what we require of federal judges throughout the history of this country. We should have confidence the jurists will be neutral arbiters who rule without fear or favor. But I'm deeply concerned that President Trump tap today's nominees because they will, quote, " be loyal to the person that appointed them". That was his language. That's what the president's looking for. I yield.

uh since you brought up the settlement talkers and not uh in opposition to uh or difference from what you said but i'd like to add my point of view to it over the decade president trump and republican political apparatus have suffered uh the worst government weaponization in history i've been involved in the crossfire hurricane and arctic frost oversights and these are just uh two examples of that i think we've shown a lot of how uh wrongly they were handled or shouldn't been handled at all so i think there ought to be accountability where there was wrong doing let's not forget that when the biden justice department paid off disgraced fbi agent peter struck and lisa page uh in one case one in two tenths million dollars and the other case eight hundred thousand dollars and we all agreed that they damaged our nations uh democrats cheered them on so that's a double standard that said uh i understand that there are questions regarding the recent settlement there are open questions about how this settlement will work and i've asked the justice department for information about this and i expect updates i'll note a few things that we do know from the justice department announcement first president trump isn't receiving any taxpayer dollars even though he was the victim of a felony secondly the fund is designed to process and redress claims of others who suffered weaponization and can prove it and third there is no partisan uh requirements to file a claim of course uh the questions remain and i expect that members of this committee and the public will want more information about this fund will work uh members will have an opportunity to ask about this in our uh oversight hearings that we have uh uh yet uh coming up at the bottom though democrats allowed the government to be weaponized against their political opponents they don't have i don't think much more high ground to complain about lawsuits related to uh abuse from government weaponization against political opponents my democratic colleagues didn't lift a finger to hold the obama uh and biden justice department accountable senator hustead and then senator lee

thank you mr. chairman uh It is my honor to introduce fellow Ohioan, Mister Ben Flowers. Over the course of his career, he has built a well-deserved, I would say sterling reputation as a thoughtful, talented attorney. Whether it is during his time as in public service or in the private sector, he has always argued his cases with conviction and compassion. Mister Flowers is a second generation Ohio State Buckeye. having graduated summa cum laude in two thousand nine. He then went on to receive his JD from the University of Chicago Law School, and began his career clerking for both Circuit Judge Sandra Siegel-Acouda

Oh, yes.

and Supreme Court Justice Antonin Scalia. Mister Flowers then spent several years practicing at Jones Day as an associate before serving the great state of Ohio as our Solicitor General. During his time as Solicitor General of Ohio, he took on several cases of enormous consequence and argued them all with grace and skill. He argued national federation of independent business versus the Department of Labor and led multi-state, a multi-state challenge to OSHA's vaccine mandate, ultimately prevailing before the Supreme Court. One particularly notable case that Mister Flowers argued was pre, uh, was preterm Cleveland versus McLeod, in which he defended Ohio's prohibition on the termination of pregnancy based on a Down syndrome diagnosis. Not only did he prevail, but he centered much of his argument on the human element of the case. Mister Flowers reached out to parents of children with Down syndrome and spoke with them at length, ensuring that his approach was the, was in the best interest of the down syndrome community. Uh, this demonstrates the kind of person that Ben Flowers is, and the kind of judge he will be. He currently is a partner at the law firm of Ashbrook, Byrne, Kresge, and Flowers, and is, is a devoted father of three young children who are well behaved, sitting there in the front row. uh, today. And, um, he, uh, Mister Flowers, uh, also, and his wife and family happen to be, uh, neighbors of mine. They live, uh, not too far from our family and, uh, I drive past their home quite frequently. I am certain that Mister Flowers will once again serve the people of Ohio with honor and distinction in his new role as a judge for the sixth circuit, should my colleagues confirm him. and a confirmation that I strongly support. And I know this, that Ben Flowers will be loyal to the Constitution and the rule of law. Mister Flowers, thank you for being here with your family today. Thank you, Mister Chairman.

Thank you, Miss Senator Hostad, and you can stay or leave, whatever you wanna do, Senator Lee.

Thank you, Mister Chairman. It's my distinct honor and pleasure to introduce my friend Matthew Schwartz. uh, whom President Trump has nominated to serve on the US Court of Appeals for the Second Circuit. I've known Mat Schwartz for decades. Uh, when we clerked together for Justice Alito, I saw Mat exemplify so many of the qualities that matter most in a judge. Intellectual discipline, raw intellectual horsepower, respect for the law and for the Constitution, an understanding that laws have meaning, and it's a judge's job on so many instances. to figure out what that meaning is, using the tools available to lawyers to interpret the law. He also has a strong apprepe- appreciation for the difference between state power and federal power, and an appreciation for the uh, essential and necessarily limited role of the federal judiciary, So, I don't seem so much to respect him. the role that Article Three judges play in our system. With this nomination, President Trump continues to cement a lasting legacy of appointing judges who approach the law this way, with the understanding that you need to figure out what the meaning of the law is. To figure out the original public meaning, at the time something was adopted, either as federal law or as part of the constitution, to get to the right answer. For decades yet to come, uh, these judges, these men and women will interpret the law according to its meaning, and thereby safeguard the role, and the - the - the role of the federal judiciary and the rule of law for many decades to come. Matt Schwartz's record reflects the preparation necessary for this solemn responsibility, and for this particular uh, position on the US Court of Appeals for the second circuit. He graduated cum laude, cum laude, cum laude from Princeton University, and then went on to obtain his law degree from Columbia University where he received the prestigious Harlan Fiske Stone Award. He clerked for then Judge Alito on the US Court of Appeals for the Third Circuit, before joining Kravath, Swain, and Moore as an associate. Mister Schwartz, uh, then clerked for Justice Alito after he got himself put on the US Supreme Court and following that clerkship, uh, he joined, uh, the law firm of Sullivan and Cromwell. in its New York office where he became a partner only five years later. Mm-hmm. His appellate practice has centered on complex litigation, Yeah, probably indeed. arbitration, and government investigations. Includingly. Mat has expertise in many of the areas of the law that are somewhat uniquely relevant in the second circuit. Securities, mergers and acquisitions, corporate governance, antitrust, bank regulation, contracts dispute, constitutional law, administrative actions, and commercial litigation generally. He's also advised on and advocated, uh, uh, on matters related to legal ethics in the New York legal community. But this is only part of the story, as Mister Schwartz's career is not limited only to high stakes commercial litigation. He's also maintained a successful and very meaningful substantive pro bono practice. Through the New York Presbyterian Hospital Wills Clinic, he drafts and executes wills, powers of attorney, and health care proxies for patients suffering from AIDS. Mr. Schwartz is also an active participant in community health organizations, including the American Jewish Medical Association, founded of course in the aftermath of the October seventh uh attacks to combat anti-semitism in health care. And Judges and Lawyers Breast Cancer Alert, a volunteer organization of legal professionals that promotes breast cancer awareness and education in underserved communities. And the Alito cha- chambers, uh, uh, Matt Schwartz, uh, w- was sort of the glue that kept us all together. Not only was he someone you could turn to on any matter, uh, for sound advice when drafting a bench memo or helping the justice, uh, uh, with an opinion, and you'd get the right answer over and over again. He was also uh enthusiastic and indeed eager to make things fun. He was very often the one who had the best ideas. Every nine weeks, each chambers, each uh set of law clerks hosts a uh a gathering for all the other law clerks. Uh, the Alito chambers hosted the very best events and was almost entirely due to Matt Schwartz's willingness uh to to do the hard work of setting those up, and figuring out ways to make them fun and to make them entertaining. We once got uh scolded uh by one of Justice Alito's assistants after Matt Schwartz offered to set up the Christmas tree and she looked at us and said, " Wait, why'd you make the Jewish guy set up the Christmas tree?" Uh, three Christian clerics who could have done it. This is the kind of guy Matt Schwartz is. He volunteers to get the job done and um, all, makes it always look seamless and effortless, even though it's not. And he does so with a smile, with enthusiasm that's uh, really infectious, and that makes everyone else uh, want to do better and be better. Mat, uh, is also a, uh, devoted, uh, uh, husband, a devoted father, and he'll be introducing, uh, his family in just a moment. Uh, I look forward to my colleagues getting to know him. In short, I, I can say with great confidence that Matthew Schwartz is a truly outstanding, exceptional, unusual, highly qualified nominee who will be a credit to the U. S. Court of Appeals for the Second Circuit and to the federal judiciary as a whole. He'll be faithful to the law. He will respect the judicial role and his judicial oath of office. And he'll be committed to the Constitution of the United States. I'm pleased to support his nomination, and I urge my colleagues to do the same. Thank you, Mr. Chairman.

Senator Lee, thank you very much. Would Mister Flowers and Mister Schwartz come forward, please, and please don't sit down till we uh give the oath. Uh, do you swear that testimony about to give before the this committee will be the truth the whole truth and nothing but the truth so help you god both have uh affirmatively said yes please be seated and uh uh you each of you can introduce anybody you want to and say anything you want to in your opening statement then we'll have questions uh start with mister flowers

Thank you, Chairman Grassley, Ranking Member Durbin, all the senators on the committee. Um, I wanna begin by thanking President Trump, this nomination is the greatest professional honor of my life. Thank you also to Senators Hustead and Moreno, Senator Hustead for his kind words this morning, and both senators for their support throughout this process. Now, I mentioned this was the greatest professional honor of my life, and that would be true of any circuit nomination. But it's especially true because I've been nominated to succeed, uh, Chief Judge Jeff Sutton. Chief Judge Sutton is among the greatest, most influential, most admired circuit court judges in the history of this country. I've argued in front of him a lot. I've won some of those cases, I've lost some of those cases, but on each occasion I left the courtroom knowing that my case would be decided fairly, pursuant to law, without fear or favor to anyone. And if I'm fortunate enough to be confirmed, it's my goal that every advocate feels the way about me, that I do, and every advocate does, about Chief Judge Sutton. I'd like to briefly introduce some folks who are here to support me today, beginning with my parents who were in from Harwinton, Connecticut, where I was raised. Uh, my mom is a retired middle school art teacher. And from her I learned and continue to learn what selflessness looks like. From my father, who founded a small business in Connecticut, I learned what hard work looks like. Now, he also instilled in me from an early age a love for the Ohio State Buckeyes. And I'm grateful for that for a lot of reasons, but the most important is it probably led me to enroll at Ohio State, where on my very first day I met my wife, Denise. Uh, she's here today with her parents and her aunt. Uh, Denise and I started dating a few months after we first met, and we've never looked back. And and frankly, we're a team. I mean, every accomplishment I have is an accomplishment of hers as well. And our greatest accomplishments are the three kids, uh, sitting behind me. And senators, my daughter, uh, asked me to thank you all for scheduling the hearing today. It is her ninth birthday. She's been lobbying for months to play hooky. Uh, we'd been refusing, but you gave her an excuse that we couldn't refuse. So she's very grateful. Uh, and I'm grateful to be joined Thank you, Senator Kenney. We're also grateful to be joined by some of her friends and their fathers who came down to uh combine a little bit of uh father-daughter bonding with some civics uh education at the same time and I wanna conclude by thanking some people who couldn't be here today my sister and her family in California my brother's-in-law in Cleveland uh all of my extended friends and family my former boss, Attorney General Yost but last but not least my former bosses and judicial heroes, Justice Scalia, and Judge Sandra Akuta, who tragically passed last year after a bout uh with cancer. One of the few things I've regretted about this process is that I wasn't able to call them and share the news of my nomination, but I am eternally grateful for their mentorship and for the example they set for everyone who is or aspires to be a judge. And I look forward to discussing my nomination with you all.

Uh, sir, uh, Mister Schwartz.

Thank you, Chairman Grassley, Ranking Member Durbin, members of the committee. Thank you very much, Senator Lee, for those very kind words. And I of course would like to thank President Trump for the great honor of this nomination. Um, senators, let me introduce my family a little bit. My wife, Amy, the amazing Amy Schwartz and I have been married for almost twenty-three years now, uh, and we've raised four wonderful children. Amy and my daughter Beatrice couldn't be here today for school and soccer commitments, but our three sons are here, Rush, Jethro and Winston, for support, as are my brother and sister-in-law, Michael and Remy Schwartz. and my niece and nephew, Bea and Ben, who I thanked from for coming up from Philadelphia to support me here today. Um, at home watching on TV, I hope, are my mother, my sister and her family, my mother-in-law, colleagues at Sullivan and Cromwell, and at the bar, and lots of friends. And their support throughout this process has been tremendous. Um, I would be remiss, senators, if I didn't mention my father, Robert Schwartz, who we lost to leukemia thirty years ago. He was a truly wonderful man. He was smart. He was kind. He was caring. He was creative. He was the life of every party, and he knew what to do in every difficult situation. And I still think about him every single day, but particularly on days like today. I would also very much like to acknowledge Justice Alito, who's been my mentor for over twenty years now. From the moment I walked into his chambers in Newark, New Jersey, his intelligence, his work ethic, and his basic human decency inspired in me a reverence for the judicial branch and the important role it plays in our society. He and Mrs. Alito have had a tremendous positive effect on my life, and I thank them both for it. And finally, Senators, I'd like to thank God for the blessings given to me, my family, and the United States. I truly believe we live in the best time and country in the history of humanity. If I'm given the opportunity and confirmed, I hope to pay back. the wonderful things this country has done for me through a lifetime of public service, by upholding the rule of law, and by inspiring confidence in the federal judiciary. Thank you.

Thank you. We'll have five minute rounds of questioning. I'm gonna start out with Mister Flowers. Do you have any problem at all saying that Joe Biden was certified by Congress as the winner of the twenty twenty election and served four years as president of the United States?

i do not have any problem saying that senator

ok do you agree with justice jackson's response when she was asked about her commentary uh regarding who won the twenty twenty election

yes senator

ok uh that's very good uh i agree with that answer as the correct one some of my democrat colleagues have been relentlessly attacking good public service for answering this question the same way justice jackson did during her confirmation i'm afraid to say that it's uh uh very hypocritical cloaked as a concern for the truth mister schwartz uh do you have the same answers

i have the same answers senator

uh that settles it so let's go to something else Mister Flowers, you've had an impressive legal career during what you spent four years as Ohio's Solicitor General, where you handled the most important cases and appeals facing the state. How did your experience as uh Ohio's Solicitor General prepare you for the federal branch?

As Solicitor General, I argued the most important cases for the state, and I argued cases across a a wide variety uh of matters. So I was exposed to most any legal issue uh that comes before the courts, at least from the states. Um, and in that capacity I defended Ohio's laws regardless of the political valence of those laws. So, for example, I would defend the state of Ohio in in environmental cases against pipeline companies. I would defend tax laws that might be challenged by business groups, but I would also defend any other laws that were passed. So I developed a healthy respect for the states and state law and federalism. And I also had the opportunity to, uh, speak with individuals affected by the positions we took on the SJQ that I submitted. You'll see the Danny Hill cases. Um, that was one of the most gruesome murders I've ever encountered as a lawyer. Um, and I got to know the victim of, uh, the mother of the victim. And, um, just converse with her about the effect these cases had on her personally. And so getting to see the actual real world effects of cases was something I'll always carry with me.

OK. And Mister Swartz, uh, you've already stated for us how you served uh justice alito in two different ways please tell us your experience of clerking for justice alito how that has shaped your legal career and what did you learn from him that you intend to take with you to the federal bench

so senator when i started working for justice alito in two thousand and three on the third circuit i was relatively young man young lawyer um i learned from him patience i learned from him to read everything that comes before you consider all the arguments uh fairly um and to do the research and do the work to treat everyone respectfully both in your tone and in your acknowledgement of their arguments as well and that's something that i've tried to carry with me uh throughout my legal career

uh mister flowers you've had a great experience with one of the outstanding justices scalia would you describe yourself as an originalist and in your view what are the strengths of that doctrine

i would describe myself as an originalist and the strength of that doctrine is that it means that american citizens are bound by the written law and that no one can be deprived of life liberty or property without a law that passes through this chamber is signed by the president and is uh carried out in the court uh by the judicial branch

uh mister schwartz uh you've been involved in banking financial services and security's regulations a very dense and complex part of the law but it is highly relevant to the new york courts and the second circuit what is your most significant lesson that you learned as a practicing attorney, and how has your experience in private practice prepared you for your role coming up, if you're approved?

So thank you, Senator, I've been very fortunate to have a very broad practice in many different areas of the law, but including in the areas that you mentioned. Those are particularly important areas on the second circuit. Many of the judges who are on the second circuit now are very fine judges, but they have more of a law enforcement or prosecutorial background. And I hope, uh, to be able to bring some of my experience in those particular areas, which again are pretty crucial to New York, uh, to the bench and be able to discuss them with my colleagues when I get there, in terms of helping understand statutes, understand regulations, um, and give the circuit a little bit of that experience as well, if I'm so confirmed.

Senator. Senator Durbin.

Thanks, Mister Chairman, and uh thanks to the witnesses. Mister Flowers, thanks to public records, certain emails from your time in the Ohio Attorney General's office are publicly available. Those emails make it clear that you knew how, in your words, disgraceful, close quote, the election denialism by President Trump and his allies turned out to be. In response to an email from then Missouri Solicitor General John Sauer, about joining a brief that Missouri planned to file as part of Texas' challenge to the results of the twenty twenty election, you emailed the Attorney General of Ohio. And here's what you said. "Everyone I've spoken with agrees this suit is a terrible idea and will tarnish the credibility of any office that gets involved." In another email you wrote, and I quote, " Arizona's Solicitor General was in agreement with me that a new brief would not solve the problem. The danger stems not from Missouri's brief, but rather from the case itself." In another email you noted, and I quote, " Missouri, Arkansas, Louisiana, Mississippi, South Carolina and Utah have now moved to intervene, adopting the allegation in Texas's bill of complaint." You added, and I quote, "This is really becoming a disgrace", close quote, in reference to the election denialism lawsuit. Do you still believe the lawsuit challenging the results of the twenty twenty election was a terrible idea?

Thank you for the chance to address that, uh, Ranking Member Durbin, I don't believe, I believe the premise of your question was that I said election denialism was a disgrace. I don't, I think I was addressing the particular case And, uh, what I'll do is point you to the brief that I filed in that case. Um, we said that the Supreme Court had a constitutional obligation to hear the case, but that pursuant to the independent state legislature, uh, theory which we had advanced in other cases as the state of Ohio, we would not be able to join and, uh, because of the particular relief being sought. So I believe it was the relief being sought to which those emails refer.

Do you still believe that the attempt to dispute the outcome of the twenty twenty election was a disgrace?

well again senator i don't believe that's what the emails say i believe they were referring to uh the particular relief sought in that case uh but i'll refer you to justice jackson's comments that it wouldn't be appropriate to weigh in on this as a judicial nominee

you don't wanna answer

uh uh my answer is to invoke uh justice jackson's example follow her lead and decline to say any more

mister swartz on your law firm's uh website You take credit for persuading the Delaware Supreme Court to reinstate a fifty billion dollar incentive compensation plan for Tesla CEO, Elon Musk. Do you commit that if you're confirmed you will recuse yourself from all matters relating to Elon Musk and the pending cases that relate to Doge a- actions?

Uh, so, Senator, I was one of a member, member of a team that worked on that case for Tesla, not for Mister Musk. But, Senator, I commit to you that I will follow all the recusal requirements under the judicial codes, um, and I will follow those on a case-by-case basis when it comes to Tesla and Mister Musk, depending on the nature of the case that might come before me if I am confirmed.

You are currently serving as President Trump's attorney in two cases on appeal. Is that true?

That's correct, Senator.

Thirty-four count conviction in the Starmy Daniels hush money case. and the civil suit that resulted in a four hundred and sixty four million dollar judgment against the president and his business entities for inflate inflating business assets. You're the third judicial nominee before this committee, who has served as President Trump's personal attorney. President Trump has suggested that his judicial appointees shouldn't rule against him, quote, "it's really OK for them to be loyal to the person that appointed them", end of quote. it's clear that President Trump expects you as nominee to be loyal to him from the bench, should you be confirmed. Why should we trust you, under these circumstances, and these statements from the President, to place the Constitution and your professional obligations ahead of your personal loyalty to the President?

So, Senator, I'm obviously not gonna comment on your quotations of the President, but what I will do is commit to you that if I'm confirmed and take the oath of office, to be impartial and to rule without fear or favor, uh, that will be an oath that I will take extraordinarily seriously and will not violate if I am put on the second circuit.

Will you recuse yourself from all matters in which you previously represented President Trump?

Uh, yes, Senator, I would recuse myself on those matters.

Thank you. Thank you, Mr. Chairman.

Senator Lee.

Mr. Schwartz, let's, uh, start with you. Uh, tell us a little bit about how you would characterize your judicial philosophy or your interpretive approach to the law.

So, Senator, when looking at a statute, I would be a textualist. That's my philosophy. And when considering the Constitution originalism, Senator.

Basically the same thing. Um, the same principles apply. You're looking for the original public meaning of a statute or a provision of the Constitution. Um, one of the often underappreciated legal doctrines that is very relevant to any Article Three judge particularly uh in the Court of Appeals but uh also in the district courts involves Article Three, justiciability. Um, the separate but related freestanding doctrines of standing, ripeness, mookness, and non-justiciable political questions. These are things that I, it's a good way to kill the vibe at any party. Uh, it's a good way to put people to sleep. So a lot of people don't find this interesting, and yet it's very important. Tell us a little bit about, um, uh, these doctrines and why they're important, why they matter under the Constitution.

So, Senator, I think the Federalist papers describe the judiciary as the least dangerous branch. And one of the reasons is that there are the restrictions that you mentioned, uh, on judic- dis- just disability, on standing, and it means that really only cases and controversies can come before the courts and be decided. Other countries have different systems where the courts do not need to have a case and controversy and without commenting on the, uh, government structure of other countries, In those countries, the courts have uh much more power than the courts do in the United States. And to keep our system of checks and balances, it's important that each branch, especially the judiciary, stays in its own lane and understands that its rule, that it's, that it's supposed to be ruling on the law and using its judgment, uh, not enforcing its personal will on general topics, not trying to enforce the laws the executive branch should be doing.

In the case of standing in particular, got to establish as a as a plaintiff in it an action in federal court, an injury in fact fairly traceable to the conduct of the defendant, that's capable of being remedied uh by a court of competent jurisdiction. These of course are are jurisdictional, um non-waivable, um uh elements that have to be satisfied. Um in particular withstanding um what why does it matter so much that we have these somewhat rigidly enforced uh, rules. For example, in the case of standing, um, you can't uh, uh, assert an injury that doesn't belong to you, that, uh, that is only tangentially, uh, uh, uh, related to you, that it, that it has an only attenuated, um, impact on your life. Why does that matter so much?

Um, I can think of two reasons why it matters, Senator. One is, again, we don't want the courts just sort of pontificating on non on on various issues that where there's not actually a dispute and the courts don't actually need to get involved that's much more for the political branches of our government the second is that you actually want fair representation on both sides of an issue before a court makes a decision and if you have somebody who is bringing a case and they're not really uh arguing the side that they need to argue it can lead to bad outcomes courts uh you don't have proper briefing you don't have the incentives of the parties those are two reasons that come to the top of my head about why standing is important

if you're confirmed to this position on the us court of appeals for the second circuit you'll be uh hearing appeals from uh from district courts and uh one of the many scenarios in which you'll be reviewing appeals will be in the in the civil context uh appeals from dispositive motions um motions to dispose dismiss or uh motions for summary judgment. In the context of a dispositive motion, do you have any any view uh over whether which one is worth or worse, or whether one is worse than the other? Uh, i- in a close case, denying a meritorious uh, dispositive motion, or granting a non-meritorious dispositive motion, is one worse than the other?

Um, Senator, I've had the privilege of filing uh dispositive motions and opposing them. I I think erring on either side is really problematic. In one case, you're getting rid of a valid claim or case. In the other case, you're subjecting the other party to potentially extraordinarily burdensome and uh costly litigation. I think in general, given the federal rules of civil procedure and the standards for uh, twelve uh, rule twelve motions and rule fifty-six motions, close cases are usually decided against uh granting the dispositive motion under those standards, but I think judges need to be very careful on those issues and not neither one of them is good.

There's a related point um that closely relates to that um sometimes you'll you'll have judges trying to wrap themselves in the flag uh declining to grant relief they're declining to um uh to act to grant an injunction or something um where it may be warranted um I guess the related question is, which is worse, judicial activism, uh, where action is not warranted, or judicial passivity, uh, uh, where action is warranted.

Um, Senator, I think they're both problematic, obviously judicial passivity, um, has some attractiveness to it because it defers more to the elected branches of government. But when you engage in judicial passivity, you of course may be denying rights to individuals that they have under the constitution or under statutes. And so it's very important for a judge to think about those issues and try to come up with the right decision rather than having a bias towards act action or or or passiveness.