Richard Blumenthal Cites Own Experience Obtaining Nationwide Injunctions As CT AG Qhile Quesitoning Law Prof

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At today's Senate Judiciary Committee hearing, Sen. Richard Blumenthal (D-CT) questioned University of Pennsylvania law professor Kate Shaw.

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00:00Senator Blumenthal. Thank you, Mr. Chairman. I'm going to give you the opportunity that I often

00:05found absolutely precious when I was arguing before a panel of judges and couldn't get

00:11my answer out. I'm going to give you some of my time to just say what you were going to say to

00:17Senator Hawley. Thank you, Senator. I can't interrupt you. Okay, thank you, Senator. I'll

00:22take some of your time. You know, I started to say this. By the way, we're good friends, so

00:28it's not perfect. Well, maybe I'll just finish what I started saying at the end, which is in a

00:35number of the questions today, there has been this embedded premise that there's something

00:38democratically troubling about judges issuing these nationwide injunctions, constraining the

00:43democratically elected president. And I guess I would just say in response that, you know, we have

00:47a constitutional democracy, so we do, the people are sovereign, and that's, you know, the sovereignty

00:51flows from the people, and we do choose our elected representatives, but obviously we choose our

00:56representatives in Congress. Congress passes statutes, the president signs them, and many

01:00of the rulings we are talking about were predicated on executive branch violations of statutes that

01:06Congress passed. So the rulings in many ways are about protecting and reinforcing democracy.

01:13And then finally, I'll say that, you know, courts are part of our democracy, right? They have served this

01:18rights-protecting and democracy-facilitating function from basically the beginning, whatever the

01:24original design of the Constitution was, and it is not undemocratic or anomalous for courts to

01:29sometimes strike down acts of the president or of Congress when they conflict with the fundamental

01:35law, which is the Constitution, which in our system, courts have long had the primary role in enforcing.

01:41And in fact, just as a footnote to this conversation, Congress has an obligation to follow the

01:47Constitution too, correct?

01:49Absolutely. The president does, Congress does. Every official, state, and federal takes an oath to uphold

01:53the Constitution, but where that oath does not appear to be fully honored by one or more other

01:59actors in government. Sometimes courts do need to step into the breach. I think that is what we have

02:03been seeing.

02:04And I can't remember exactly what that charge said, but so far in the lawsuits that have been brought,

02:14the administration or the president has lost, I would say, a vast majority of times. Is that correct?

02:21The vast majority, yes, Senator.

02:24And I want to ask a somewhat open-ended question because I have to confess, as Attorney General of

02:31the state of Connecticut, I probably succeeded, I can't name in which cases, obtaining a nationwide

02:39injunction. Then Attorney General Schmitt sought more than a dozen nationwide injunctions against

02:51the Biden administration. Then Attorney General Moody also sought numerous nationwide injunctions.

02:57This is a tactic, and it's a well-founded one, that attorneys general, litigants, and others have used again and again and again.

03:13And it shouldn't be a partisan issue. Nationwide injunctions shouldn't be a partisan issue.

03:20And when I say they did it, I'm not being accusatory. I confess, I did it. And I don't know about then

03:29Attorney General Whitehouse. He can speak for himself, but it should not be a partisan issue,

03:36should it?

03:37I agree that it shouldn't be, but of course, yes, it has been. I mean, I think that despite the somewhat

03:44heated exchange I was just having with Senator Hawley, I do think that we don't want judges to be

03:51sort of driving the train of policymaking. And there are absolutely, there may be points and there may be

03:58contexts in which it does feel as though some fundamental change to the way judges consider

04:05nationwide injunctions, how much there's some critique that the merits have become the entire

04:11analysis and that some, you know, there should be some prescriptions that are different about the

04:15kinds of harms that should be, the way harm should be evaluated or assessed. So I do think there are,

04:20again, back to the sort of prudential point, there are absolutely reforms that I think that

04:24there could be some...

04:25To take, and I apologize for interrupting, but I am running out of time.

04:28Yeah, sorry.

04:29To take Senator Hawley's point about looking for a principal, a jurisprudential

04:36lodestar here, maybe we do need some refinement on a bipartisan basis to provide some guidelines

04:47to district court judges, some of whom come to work on their first day and are presented with

04:53litigation that determines whether or not kids get health care or whatever in parts of the country

05:01they've never visited in towns they don't even know how to pronounce.

05:05Right. So, and whether that comes from a rule change, Supreme Court guidance, something legislative,

05:09I am not sure, but I think there could well be bipartisan consensus around clearer standards

05:14that guide judges asked to consider requests for nationwide injunctions.

05:17And that would probably increase the credibility of what courts do, if they could point to standards

05:26that were not just personal preferences or whims or, you know, perhaps subconscious political leanings.

05:35I agree with that, Senator.

05:36Thank you. Thanks, Mr. Chair.

05:39Thank you. Senator Blackburn.

05:41Thank you, Mr. Chairman.

05:43Professor, I do want to come to you, and I want to return to...

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