Nominations of Rudofsky, Long, Mansfield and Osete to Be Federal Judges

The first panel features Lee Rodofsky who's nominated to serve on the US Court of Appeals for the Eighth Circuit. The second panel has three district court nominees, Robert Long, Middle District, Florida, Peter Mansfield for Eastern District, Louisiana. And hoes uh o sete uh for the Western District of Missouri. I'll keep my remarks briefly, since we have multiple panels. But first I'd like to address an issue related to this committee's review process in the lead-up to every hearing. My staff and the staff of ranking member diligence review, each nominee's FBI background investigations sometimes through no fault of a nominee there are delays in getting that paperwork from the fbi that's what happened here for one nominee who isn't on our panel today mister kelly was nominated to the us district court for the eastern district of louisiana i wanna be very clear here his absence today does not reflect on him or his qualifications based on our review so far he appears to be an extraordinarily qualified nominee um uh extraordinary nominee qualified um to be very good uh this was a delay in getting paperwork from the fbi and i'm confident that mister kelly will sit at our next hearing turning today's nominees they're all exceptional in their own right and they reflect diverse backgrounds in the law and public service um indeed today's nominees have served as attorneys at the local state and federal levels their profiles include legal work with a local law enforcement office state advocacies with attorneys general offices and federal service with us attorneys office and also uh the federal justice department our uh nominees also include judges at both state and federal level i'd also note that like our last hearing one of today's nominees has prior military service uh judge long um president trump continues to uh tread the trend of making excellent nominations to our country's most important roles And i look forward to hearing from each of today's nominees. That said, i have the honor of introducing one of them today. Judge Rodofsky has been nominated to serve as a judge on the US Court of Appeals for the eighth circuit. His career spans public service, private practice and academia. Judge Rodofsky graduated from uh Cornell University and a Harvard Law School. He then clerked on both the Massachusetts Supreme Court and the Ninth Circuit Federal Court before entering private practice. In twenty fourteen Judge Radolfsky joined Walmart serving for a year as Assistant General Counsel he then entered public service as Solicitor General of Arkansas. He served with distinction and handling complex constitutional and appellate matters. After three years in that role, he rejoined walmart as the senior director of its global anti-corruption compliance team but his return was short-lived. In twenty nineteen president trump non nominated judge rodolfski as a judge of the us district court for the eastern district of arkansas where he continues to serve today in addition he is taught at george mason university the university of arkansas and the university of arkansas at little rock he is uh also educated future lawyers and law clerks at the judicial clerkship writing conference held at catholic university columbus school of law Judge Rodolfsky's experience spans from the courtroom to the classroom and back again. I look forward to hearing him today. Senator Durbin.

Thank you, Mr. Chairman. Congratulations to the nominees, their families and friends. President Trump has made it clear he believes judges appointed by him should be reliable votes for his MAGA agenda. He said, and I quote, " It's really OK for them to be loyal to the person that appointed them." Most judges, whether appointed by Republican or Democratic presidents, recognize that the rule of law is paramount to any political agenda and that partisan politics should not influence their decision-making. But we're living in a different era. When judges don't rule his way, President Trump, the President of the United States, attacks him. Calling them, " rogue judges that are criminals", the words of the President. And demanding that Republicans pass a " tough crime bill that cracks down on rogue judges". He has repeatedly attacked his own Supreme Court nominees. Most recently saying, " They are merely a shell of their original selves." Ladies and gentlemen, this is the new normal in Washington DC. For President Trump, it's not enough that a ju judicial nominee be a principled conservative. Nominees must now demonstrate fealty to him and his MAGA agenda. So President Trump has resorted to nominating ideologically extreme nominees in some cases, regardless of whether they have the qualifications to serve as a lifetime appointee. The chairman has said that President Trump, quote, "has a history of nominating highly qualified jurors to the bench. However, many of the nominees who've come through this committee in the second Trump administration simply do not have the experience to serve on the bench. Look no further than today's panel. One of the nominees had only been out of law school for a decade and has been practicing for a grand total of seven years. Why should litigants have faith in these nominees? that they'll have the knowledge and experience to adjudicate the cases. That is not a matter of concern to the President. He only cares if they will be loyal. That loyalty is particularly important to President Trump at a time when jurists nominated during the first Trump administration had been ruling against the President including dozens who've ruled against his administration's, illegal mandatory immigration detention. Just last week, Judge Timothy Kelly, a Trump appointee and former counsel to the chairman of this committee, ordered the White House to immediately restore credentials for three press outlets after the president barred the reporters from the White House. Unsurprisingly, President Trump branded Judge Kelly as, quote, " disloyal." This is new. I've been in Congress for a few years. I've heard comments on judges. But none as blatant politically as these. And judges across the country, nominated by presidents of both parties, have found the Trump administration repeatedly defying court orders. As Judge Patrick Schultz, a George Bush appointee who clerked for Justice Scalia found, ICE violated hundreds of court orders in Minnesota alone. In rare interviews earlier this month, Judge Sch- Schultz Other judges spoke out about the quote "grave threat to the rule of law" posed by this administration's attacks. Last week, Chairman Grassley chastised Judge Schultz and others, claiming they'd violated the judicial canons by granting these interviews. In fact, the advisory opinion that the chairman cited specifically permits quote "the measured defense of judicial colleagues from illegitimate forms of criticism and attacks that risk undermining judicial independence or the rule of law. As Judge Nancy Brezell, a Trump appointee said quote, "we are allowed to speak out about judicial independence." She continued, " and we should, in order to keep it." Judge Brezell is right. Judges don't give up First Amendment rights when they assume the bench, particularly when it comes to preserving the rule of law. And now I'd like a minute to reflect on yesterday's hearing. We've been trying for a year to get Mister Jack Smith, the special counsel, to appear before this committee under oath. For some reason, the majority was not ready. Since October of last year, we've been waiting for the chance. And yesterday was that moment. When Mister Smith came before us, took the oath of office, and submitted himself to questioning from both sides of the aisle for a lengthy period of time. What I found curious was the underlying charges which he was investigating The instigation of the January sixth uh attack on the Capitol of the United States, as well as questioning the results of the twenty twenty election, together with the disposition of classified documents at the Mar-a-Lago uh State in Florida, was never raised on the Republican side of the aisle. Those substantive issues which led to indictments were not contested or questioned. Rather, it was Mister Smith who was on trial for acting as a prosecutor in this case a curious outcome i look forward to questioning the nominees today to understand if their loyalty is going to be to the president and his agenda or to the rule of law and the constitution thank you mister chairman

i'm prepared to respond to what you said about yesterday's hearing it made public for the american people more records proving jim s jack smith's political work and abuse of authority. Data point after data point proved in their own words that Smith and his team of partisans were out to just simply get Trump. They were also out to get Republicans. Uh to my democratic colleagues that think it's appropriate for a prosecutor to want to repeal the speech and debate clause. do you think it's appropriate to obtain congressional records in secret and not just toll records i'm talking about content or what about getting thousands of americans personal checks where's outrage from the partisan media that smith and his partisans obtain their communications the silence on all these points is deafening i'm not going to call a hearing unless the foundation is properly set and that's what congressional oversight one O one is all about if we held the hearing when my democratic colleagues wanted it to months ago none of those records would have been known and neither would the partisan origins of arctic frost an fbi agent who violated the hatchet for anti-trump political conduct started arctic frost when i exposed his political conduct in twenty twenty two ray reassigned him and then he was effectively forced to retire but not before he created the case that smith would take over as special counsel Let's recall the email that I made public that shows that uh FBI personnel Thibault admitted that he created the road map. That's the FBI agent said he created the road map to investigate Trump. See that the real elector case, elector case, was uh approved in april twenty twenty two while thibault was at the helm in a matter that the committee addressed yesterday the rio case wasn't about january sixth like the democrats want us to think it is rather this was a pretext to expand way beyond to members of congress and about four hundred conservative organizations Even so, this committee looked at January sixth and the events surrounding it in twenty twenty one. We looked at the underlying case. I issued a committee report at that time. Jack Smith cited the committee's transcribed interviews as part of his work, although he excluded information exonerating Trump. As an example, a former deputy attorney general from the first trump administration testified to this committee he took notes of a phone call with trump and in those notes trump said don't expect you to do that quote unquote the deputy attorney general testified to this committee that trump meant that he is not asking the justice department to change change the outcome of the election. Smith failed to include that exonerating sentence in his report. So let me be clear. Smith obtained our constitutionally protected constitutions, protected under the speech and debate clause. And one of these persons working for Smith said, we oughta repeal the spea speech and debate clause. smith obtained the same from the media can you imagine i think about twenty or twenty five media people i mentioned yesterday they had their records uh subpoenaed as well and smith obtained very invasive personal information about thousands of americans because they happen to be republicans jack smith has absurdly publicly defended his conduct and that of his staff that same staff who targeted whistleblowers who exposed the special counsel's misconduct i'm saying that was a letter to the department of justice o. i. g. and when i asked smith about targeting whistleblowers he played dumb of course he knew the issue been public for months i asked him a simple question about protecting whistleblowers and he couldn't even muster a proper response also i'd note about the classified document case how the fbi initially was going to treat it like spillage not a criminal case biden admitted to mishandling classified information hillary clinton was proved uh to have done the same and there were zero indictments in those cases and government raids uh for them my democratic colleagues haven't joined any of my records requests to better understand what happened in the classified document case so my and senator johnson's investigation will continue the chair recognizes senator cassidy

Thank you, Mr. Chairman and Ranking Member, uh Durbin. It's my privilege to recommend Peter Mansfield to the Senate Judiciary Committee for the United States District Court for the Eastern District of Louisiana. Peter is a Native Louisianian and a dedicated public servant. For the past two decades, he has served the United States as an Assistant United States Attorney in the Eastern District of Louisiana representing the United States before the very court he is now nominated to serve on. Before joining the United States Attorney's Office, Peter was an attorney at Adams and Reese, a law firm in New Orleans. Peter was born in New Orleans area. He was a top student at Jesuit High School and a National Merit Semifinalist. He continued his academic excellence as a student in college and law school, graduating with Ma- Magnicum Laude honors from each. He is compassionate. Despite the demands of a professional career, the greater demands of being a devoted husband and father of five, He contributes a lot of time to the community, including serving on the board of directors for Gigi's Playhouse, a Down Syndrome Achievement Center in Metairie, Metairie, Louisiana, volunteering notary services to the homeless, supervising the Boy Scouts of America as an adult leader, and instructing peers through training seminars and published advocacy articles. He has spent a lion's share of his career in the Justice Department. For the past thirteen years, Peter has served as the chief of civil division working in the senior office management under the leadership of United States attorneys, appointed by presidents of both parties. In the conversations I've had with Peter's colleagues at the Justice Department, and with several judges before whom he appeared as an advocate, Peter's nomination to the US District Court for the Eastern District was met with universal enthusiasm excitement and praise. Mister Chairman and ranking member, I'm confident that Peter Mansfield has the breadth of experience, caliber of intellect, spirit for liberty and compassion that this committee has come to expect from nominees to the federal bench. I fully support his nomination. With that, I yield.

Thank you, Senator Kennedy. Now, Senator Scott.

Thank you, Chairman Grassley and Ranking Member Durbin. Uh, today is my honor and pleasure to introduce one of Florida's finest legal minds, Judge Bobby Long, to this committee. I've known Bobby since I was governor and in twenty sixteen I had the distinct opportunity and the privilege of appointing him to the second judicial circuit court. Bobby's entire professional life has been dedicated to upholding the rule of law, serving our communities, and defending our country. After earning his undergraduate degree from Florida State University and his law degree from the University of Florida Bobby went on to dedicate his career to serving Floridians. In his work in the Leon County Sheriff's Office he oversaw all litigation, internal affairs, and legislative affairs. He also worked in the private sector handling civil litigation for Floridians across our great state. Bobby is a patriot. He served as a Navy JAG officer in Curlin currently serves as commander in the Navy Reserves. He understands what it means to answer the call to serve, and I believe he will show the same dedication in this role. He's also a dedicated husband to Jenna and father of four boys. He gives back even more of his time as a coach for their baseball, soccer, basketball, and football teams. He and his wife have led children's Sunday school, and he has worked with his son's Boy Scout troop. He's truly one of Florida's best, and his body and professional work speaks for itself. I've seen firsthand that Bobby understands the constitution and the importance of the rule of law. He understands our Constitution protects the rights and liberties of the American people while placing meaningful limits on government power. That understanding has guided his career in public service, and I'm confident it will guide him on the federal bench. Our freedom, our prosperity, and the American dream all rely on the rule of law to survive. Because the rule of law protects the American people by keeping both criminals and government itself in check. Bobby understands that, all that, it has guided his work in Florida and the rest of his impressive career. I have no doubt that Bobby has the experience, integrity, judgment and commitment to the rule of law to serve with distinction on the federal bench. I for and fully encourage all members of this committee to advance this nomination and confirm him on the floor I wanna thank you again, Chairman, ranking member, for the this opportunity.

Good, Senator Scott. Now, Senator Kennedy.

Thank you, Mr. Chairman. Um, as usual, uh, my my senior senator, Senator Cassidy, was was eloquent uh i can't do any better i adopt his remarks i'll simply add to this the to that the observation that mister mansfield is well known in his community and his state as a legal rock star and i commend him to you

senator schmidt

thank you mr. chairman

It is my privilege to introduce a fellow Missourian, Jesus Ocete, who has been nominated to serve as a United States District Court Judge for the Western District of Missouri. I know Jesus well, had an opportunity to work with him when I served as Attorney General of Missouri. He served as, he served first in my office as Deputy Solicitor General and then later as Deputy Attorney General for Special Litigation. And I saw firsthand what kind of lawyer he is. Jesus is the kind of lawyer you wanted in the hardest cases, the cases where the law was difficult, the stakes were high, and Missouri needed someone who could get the answer right and defend it in court. During our time together, he helped represent Missouri on some of the most consequential constitutional litigation in our country. That included standing before the United States Supreme Court to argue Missouri's challenge to the Biden administration's COVID-19 vaccine mandate for healthcare workers. And by the way, just as a bit of an aside, We wanted to be the first state to file that lawsuit, and I think Jesus was up at four AM to make sure the case was filed before anybody else. Uh, that is an extraordinary responsibility for any lawyer to appear before the Supreme Court. And Jesus handled it, um, just a few years out of law school and did it very, very well. But his experience goes well beyond one argument in our office. After graduating from Washington University School of Law, Jesus clerked for just Justice Zell Fischer on the Missouri Supreme Court. and Judge Bobby Shepard on the eighth circuit. He has practiced law at one of Missouri's leading law firms, litigated commercial cases in both state and federal court. He served as general counsel to the Missouri Secretary of State where he advised on election law administrative law and other issues of enormous importance to our state and today he serves as principal deputy at- assistant attorney general in the Justice Department's Civil Rights Division helping lead the division and shape its legal strategy so Jesus comes before this committee having seen our legal system from nearly every angle, as a judicial law clerk, a private practitioner, a state government lawyer, a federal official, a trial lawyer, and an appellate advocate. He has tried cases, he has argued appeals. He has argued before the Supreme Court of the United States of America. And he's actually stood at that court lectern and defended the position of the state of Missouri. A federal district judge exercises enormous power over the lives and liberties of the people who come before the court. The job demands legal ability, sound judgment, seriousness, and respect for the proper role of a judge. I had a chance to see Jesus practice law when the pressure was real and the consequences really mattered. And I'm glad the committee has the opportunity to hear from him here, hear hear from him today, and I'm proud to introduce a talented Missouri lawyer who has devoted so much of his career to public service. Jesus, welcome.

Will Judge uh Rodolfski come to the table please, and before you sit down I'd like administer oath. uh do you swear that the testimony you're about to give before this committee will be the truth the whole truth and nothing but the truth so help you god thank you uh now you may uh proceed with your opening statement and introduce any family and friends that you want to that's kind of a tradition of this committee

thank you chairman grassley uh i wanna thank you and senator durbin uh ranking member durbin uh and the other members of this committee uh for holding today's hearing uh and for considering my nomination i also of course want to thank president trump for the honor of that nomination uh and for the faith that he's now twice placed in me uh to uphold fairly and dispassionately the rule of law and our constitution i'm particularly humbled by the nomination this time around Because the seat to which I've been nominated, uh, has recently been filled by two titans of the Arkansas bar. Uh, Judge Judge Barbie Bobby Shepard and Judge Morris Arnold. Uh, if I could serve Arkansas and our country, uh, and the rule of law and the constitution half as well as Judge Shepard and Judge Arnold, uh, I will consider myself, uh, to have had a resounding success of a career. I also wanna thank my home state senators. senator bozeman and senator cotton especially for their service to our state those two gentlemen worked tirelessly up here on the hill for the great people and the great state of arkansas and we back home appreciate it immensely but there's one person here today who deserves more thanks than anyone else that's my wife soraya soraya is the love of my life uh an incredible lawyer in her own right a wonderful mother to our three children and without a doubt the only reason that i'm sitting here in this chair today i'm pleased to introduce you to our three children vivien uh our uh competitive rock climber charlotte our horseback rider uh and teddy our soccer star uh i wanna say uh an extra word about teddy uh teddy is an incredibly bright boy on the autism spectrum we've worked very very hard to make sure that he knows he has a very bright future ahead of him, and that he can and is expected to do anything that his sisters can do, including sitting through a confirmation hearing. Uh, on the other hand, if for any reason Teddy needs to excuse himself today, I I ask for the committee's indulgence in advance. Um, I also want to recognize my mom and dad, Roz and Ed Rudofsky, and my in-laws, Salaya and Richard Fried. I could never possibly thank them enough for the love, support, and guidance that they have given me and Soraya over the last forty-seven years. That they're all here today, especially my dad, who is fighting uh a courageous and winning battle with cancer, means the world to me. Dad is a First Amendment lawyer, my original legal and political sparring partner, and the person who taught me from the earliest age to love all Americans and to love this country.

Mm-hmm.

I hope it's as special for him to be here today, as it is special for me to have him here. Lastly, and because I promised them I would, I wanna introduce you to my niece and nephews, uh Ria and Chloe Salama, and Annabel and Anthony Fried. I'm overjoyed that they and my entire family, some of my closest friends, and many former colleagues are here today. I hope especially the kids, will take this opportunity to really watch uh our constitution and government in action. The only other thing I wanna say before fielding your questions, is that I'm here in this chair for the same reason I believe you are all here. I love my state, I love my neighbors, I love my country, and I love my fellow citizens. And I believe I've found the way to serve them that makes the best use of the skills and abilities that God has given me. I'm not suggesting that the United States has ever been or is now perfect. No country is or ever was. But in my view, this country has been the greatest force for good and right that the world has ever known. And I thank God every day that I was born in this country, and that thirteen years ago, Soraya and I made our way to our adopted home of Arkansas. I wanna do my very small part to put our constitutional republic, uh, on the past on the path to survive and thrive and continue as a force for good and right in this country and in the world. As a federal judge, that small part is to maintain the rule of law, dispassionately interpret the laws as they are written, and uphold the structural protections of and the individual liberties in the Constitution. With that, I'm happy to answer your questions.

Thank you, Judge. Uh, you've served as a district judge in arkansas for better part of a decade as a judge you've presided over many civil and criminal cases what have you learned from your time as a judge and if confirmed what do you think will be the biggest challenge you'll face transitioning from district to circuit court

chairman grassley uh i think the best lesson i have learned over my years as a district judge is how important each case is to the litigants that come before me uh one of the special things about being a a district court judge and one of the things i'm gonna miss if i'm lucky enough to be confirmed uh is that we spend time everyday or at least every other day uh with real life litigants in front of us not just the lawyers but the litigants defendants in criminal cases their families uh it's a reminder everyday that these cases matter they matter to real people um i think sometimes and this goes to the second part of your question at the appellate level cause i've argued there a bunch uh it's easy to forget that and it's easy to just think in terms of abstract principles and while abstract principles are certainly important it's also incredibly vital to remember that there are real live flesh human beings who care about the decisions you make. And even if it might not be the most important case in terms of, uh, the issue or the subject matter, it is always the most important case to that litigant. That that's what I've taken away from my district court service and what, uh, quite frankly, I'm gonna miss a little bit on the appellate court, if I'm lucky enough to be confirmed.

Uh, you served as State Solicitor General. In that role you handled complex constitutional and appellate matters, which involved the most significant issues facing Arkansas. What has your public service to the great people of Arkansas meant to you?

Chairman, uh, as I sort of adverted to in my introductory remarks, uh, my wife and I came to Arkansas thirteen years ago uh because we believed that it was the type of place uh with the type of people and the type of culture that that we wanted to raise our family in uh and that we wanted to spend our the rest of our life in we were right in that judgment uh i am very glad we did that uh the people of arkansas have welcomed us with open arms uh they have been truly wonderful to us uh and that is the reason or i should say one of the big reasons uh that i decided that i wanted to serve the public both as solicitor general uh and now as uh a district court judge i i should say when i came to arkansas there was there wasn't such a role as solicitor general uh it wasn't even something i was thinking about but but once our neighbors and and the state sort of you know gave us everything uh it was really my desire to give back And I was blessed every day for those three years to be able to stand up in court and say that I represent the state of Arkansas. Um, and that's really why I've dedicated the better part of a decade to public service in Arkansas and also for the country.

My last question, uh, you've written extensively, uh, and spoken on the topics of originalism and textualism. Tell us about your views on those two. matters and why it's important to enforce the law as written.

Uh, so chairman, uh, I don't think it would surprise anybody here today that I am a uh, committed textualist and originalist. Uh, for me uh, the appropriate version of that is uh, an original public meaning, originalist and textualist. Uh, I I will say that while there are some nuances between the two, as a general matter, they're two sides of the same coin. uh originalism being a methodology with respect to interpretation of the constitution and textualism being a methodology with respect to the interpretation of statutes or regulations um in terms of why it is important uh i think originalism and original public meaning whether we're dealing with the constitution or or uh a text uh comes from three features uh of the constitution One is separation of powers. Uh, one is bicameralism and presentment. Uh, and one is the procedural due process protections in the fifth and fourteenth amendment. Uh, all of those get at the same point, which is that the only authority a judge has and has been given by the constitution, is to interpret the law as written. Not to rewrite the law, not to make new law, either intentionally because it aligns with his or her policy preferences or unintentionally. And originalism and textualism is the best method I have found to do that. Uh, when people ask me this question, I I I often am reminded of Federalist number seventy eight, written by Alexander Hamilton. Uh, and I'm paraphrasing, but essentially what Hamilton said is that individual liberty has little or nothing to fear from a judiciary in its proper role. But on the other hand, if the judicial power and the legislative power are combined, or if the judicial power and the executive power are combined, that would be judges sort of acting as legislators or acting as the enforcement authority. Uh, that is a grave, grave danger to individual liberty. And I think that's the best and right justification for originalism and textualism.

Senator Gerber.

Thanks, Mr. Chairman. Judge Rodofsky, thanks for joining us and bringing your family.

Thank you.

You had a great story to tell about those kids. We appreciate it. You've been involved in interpreting and ruling on the Voting Rights Act. How would you explain that law to a layman?

I, I, I would say that the Vote, the Voting Rights Act, uh, was a seminal piece of legislation, uh, that helped to ensure, uh, in a. worst time in our history helped to ensure uh the rights of everyone to vote, including minorities.

And so is the statute directed at other elected officials and appointed officials who have the authority, for example, to draw legislative maps?

Uh, I think that is one that is one part of the Voting Rights Act, yes.

And clearly, uh, if you have a government of a state presenting a congressional map with uh lines drawn or a legislative map it is fair to say that that has gone through the ordinary process and if it's challenged under the voting rights act uh it is a effort to either question or overturn the state governmental decision

think that would be true sir

for sixty years under the voting rights act individuals could bring causes of action under that act. I imagine the theory behind it, I think I'm right, is that that's the only way for an individual to have a voice questioning government action, which denies or limits a person's right to vote. Is that your understanding?

Uh, Senator Durbin, uh, not exactly my understanding, uh, so I I think that that is a good policy. justification for it, uh were I a senator, that might be something I would vote for, meaning I'd have to consider, I'd have to consider the policy options. But that's my, not my job. My job was to decide, uh A, whether there was an expressed right of action in the statute, which I think everybody agrees and everybody's agreed for sixty years that there isn't. Congress didn't write a a private right of action into the statute. And so then then the next question is,

Excuse me, is there is there

is there an implied right of action?

Excuse me, Judge. For sixty years, would you repeat that sentence?

Y- yes. Everybody has agreed that Congress did not write an express right of action into the statute. The real question is, was there an implied right of action? I- in a different era, courts would imply rights of action fairly easily. Uh, but since Sandoval, the court has retrenched from that, and and that is no, that is no longer true. Now, the assumption had been for a very long time

So

uh, that there is an implied right of action in the Voting Rights Act. But that had just been an assumption and just been dicta. And when I looked at the issue, I decided that there was not. And obviously, as you know, the eighth circuit affirmed me and nobody sought review in that case in the Supreme Court.

So, uh, let me ask you this, in twenty twenty two, and you're referred to the case, you presided over a case that challenged Arkansas's House of Representatives redistricting map. for diluting the voting power of black Americans. In your own words, there was quote "strong merits case that at least some of the districts are unlawful under section two of the Voting Rights Act." End of quote. Yet you claimed you could not reach the merits of the case, and instead ruled the private citizens have no private right of action to enforce section two. For sixty years before your decision, courts recognized private plaintiffs individuals for example who may have lived in some of those districts that were being contested they were able to bring cases under section two challenging the policies and practices that made it more difficult for people to vote to the detriment of voters of color in arkansas iowa minnesota missouri nebraska north dakota and south dakota a divided panel of the eighth circuit embraced your fringe reasoning The eighth circuit is the only appeals court in the nation to adopt your extreme position. Even the conservative fifth circuit declined to stray from precedent, which allowed individuals to bring causes of action under the Voting Rights Act. That means state and local politicians can now freely violate the Voting Rights Act of their constituents, knowing they'll go unchallenged by private citizens, and without a doubt be ignored by this Department of Justice. So, as you reflect on the practical impact of denying to individuals in all of the states that I've mentioned, an opportunity to use the Voting Rights Act to assert the protection of their right to vote, do you have any misgivings about your ruling?

Senator, uh, I to this day believe that my ruling was correct, correct according to the law. Uh, the outcome may not be one you liked, but uh, that doesn't change whether or not my ruling was correct. uh i i will also tell you i think it's important to know in that situation i did everything i could to give the plaintiffs a chance to to keep the case live i gave time for the government to uh intervene the government chose not to intervene i also dismissed the case without prejudice so that a new case could be brought under for example potentially section nineteen eighty three that was not done by the plaintiffs either i ruled according to what i thought the law required And I did whatever I could to allow the plaintiffs a fair shot to bring a new case.

Well, I thank you for your candor and your answer. Uh, but I have to say that for sixty years, individuals could protect their own right to vote through the Voting Rights Act. Your position is uh a deviation from that precedent at the to the detriment of the voters and their rights in the future. I think that is significant. Thank you, Judge.

senator Kennedy

judge um why why do we have starry decisions

senator uh there are important reliance interests that are served by starry decisions uh it's incredibly important uh among other things eh that the country can have faith in the rule of law and so when an issue has been decided generally it is a good thing for people to understand that that decision and here i'm talking about a decision from the supreme court when when the supreme court has decided an issue generally it's a good idea that the country understands that is the rule and that's gonna be the rule going forward it's not in any way an inexorable command and there are sometimes very good reasons to overrule precedent but as a general matter uh i think sticking with precedent is the appropriate approach now of course if you're asking about vertical stare decisis in the sense of lower courts being bound by what the higher courts have said that i think it is an inexorable demand uh and lower courts uh are so i would be bound by the eighth circuit were i on the eighth circuit were i lucky enough to be confirmed i would be bound by the supreme court and i couldn't change those decisions even if i wanted to

well i i don't know i i i still don't understand what you mean by it's important for it's important for reliance i mean if starting decisive is so swell and i'm not suggesting that it isn't why why doesn't why does the Supreme Court sometimes change its mind?

Eh eh Senator, I I think the Supreme Court does and can change its mind. Uh, so I I certainly don't want to suggest that stare decisis is an absolute straight jacket for a court not to change its mind. It's not, and it should never be treated like that. Stare decisis in my view is a default principle that unless unless you as a judge or a panel of judges or the supreme court have decided that a prior uh a prior judgment of the court is not only wrong but really wrong considerably wrong uh then i think judicial humility suggests that you stick you stick with the rule you've created but i do wanna emphasize i don't think that is an inexorable command i i think it's a default presumption that when you've decided something is egregiously wrong uh you should fix

well as a district court judge you suppose you have a case of first impression does story decisis bind you there

it does it does not at all and i i mean because it's a case of first impression definitionally No higher court has decided it in a way that binds you. And I do wanna be clear.

So you so you can just do what you want?

Well, I I think it would be a bit much to say you can do what you want. Uh, I think you have to do what the law requires. And when I say what the law requires, uh, at least from somebody with a judicial philosophy like mine,

But I thought you just said there was no precedent.

that Eh, no, I I guess what, Senator, what I mean to say is that with a judicial philosophy like mine, what binds you there is the original understanding of the constitution, or the original understanding uh of a statute, if we're talking about a a textualist analysis. That is the kind of law that would bind your decision. Um, if there if there's no Supreme Court case law on it.

Well, it's a case of first impression. That means no law binds your decision. I thought that's what you said.

Senator, we may be having a d- a sort of respectful disagreement

No, I'm I'm not disagreeing. I I'm just trying to understand.

When I say law, there I am not talking about case law. I'm talking about law as Congress has written it or the Constitution has says it. What what I was trying to react to was I don't think judges should ever be in a position of just doing what they want. I I think what judges do is follow the law, whether that be a statute or the Constitution. or if there's binding Supreme Court precedent or binding eighth circuit precedent

right uh um uh let me let me interrupt you judge i apologize but i'm about to run out of time i just wanted to ask ask you about one comment you made in two thousand and one and i know this has been a while ago but uh you you wrote a letter to the cornell review um You were at Cornell at the time and you called yourself, I'm gonna quote, "A libertarian-minded Republican who has more than once privately questioned President Bush's intellectual and ideological ability to govern our nation." End quote. Now, I realize, back at that time, some newspapers i i i'm thinking of the washington post um tried to portray president bush's is being not very smart but i think we all know the that the washington post would would endorse a dead armadillo for any office over a republican if the dead armadillo had a d behind its name my experience with president bush is that he's one of the smartest people i've ever met why why did you why did you say that

senator i don't remember that particular quote but that sounds like a very dumb thing to say uh eh that would be said by a dumb college student uh i i can tell you that i had the same experience that you did uh with president bush i i was uh a very small cog in the wheel in his white house counsel's office at one point i don't wanna overstate things i i was a intern uh but having said that uh i have interacted with him uh on a number of occasions both then and since then uh and if that's what i said uh i'll tell you uh just one of the things that you know in college i wish i could take back thank you mr. chairman