00:05I feel like a kid from East St. Louis in the presence of a lot of St. Wilsons.
00:11I hope that I can stand up from my side of the river, at least to some extent.
00:16Let me ask a few questions.
00:18Mr. Devine, you have referred to yourself as a zealot for the anti-choice movement.
00:25You previously wrote, and I quote,
00:26because we know a genetically unique human comes into existence at fertilization,
00:31abortion should not be ethically permitted.
00:34Let me ask you a couple questions.
00:36Do you believe an IVF embryo is a person?
00:41Thank you, Senator.
00:43My answer to that question and any policy question or political question that might be asked of me
00:49is going to be the same exact answer that I know this committee has heard from hundreds of nominees before me,
00:54that Justice Kagan gave, that Justice Barrett gave.
00:56I cannot talk about political disputes.
00:59That is obviously a hotly litigated issue and a hotly disputed issue right now.
01:04So I just cannot, under the canons of judicial ethics, talk about those kinds of political disputes.
01:08That's what I expected to hear.
01:10Do you believe in vitro fertilization should not be, quote, ethically permitted, close quote?
01:17Can you tell me where the quote is coming from?
01:20I'll try to find that from the staff while you're thinking about the answer.
01:24So I don't know the context of what you're quoting to me right now.
01:33We're looking for the exact source on that.
01:35So let's go to another question along that all the other members of this panel might address.
01:42I'm not going to get into the point made by Senator Blackburn about one of our witnesses yesterday saying she had some equivocation on following court orders.
01:53But as demonstrated by Senator Hawley, this panel has extensive court experience.
01:59So the question I'd like to ask of each of you, do you believe that the executive branch of our government should be allowed to defy a court order?
02:09Mr. Bluestone?
02:10Thank you, Senator.
02:14I would have to take some caution in answering that question because this is a hotly litigated issue right now.
02:21But I would echo what we heard earlier in the hearing today that, generally speaking, that is, of course, the rule.
02:28Mr. Devine?
02:30Thank you, Senator.
02:31My understanding of the doctrine is it is almost always required that you obey a court order.
02:37The only exceptions are for if there's a lack of jurisdiction, if there's impossibility.
02:41There is a well-recognized doctrine of exceptions to that, and so you would have to check to see whether something fell within one of those very rare exceptions.
02:50But that would lead to an appeal, would it not?
02:54Certainly you can appeal, and you would typically do that sort of thing in a jurisdictional setting.
02:59There have been cases before where a court has ordered somebody to do something that was literally impossible for them to comply with, and then in response to sanctions motion or whatever, they've defended themselves.
03:10Would that be the only exception you can think of?
03:13There's a doctrine of well-recognized exceptions.
03:15There are some other situations in, for example, in privilege issues.
03:21If a court has ordered somebody to disclose something and they're claiming privilege, sometimes in certain states especially, sometimes they actually have to defy that order to appeal it.
03:31That's the only way to appeal it, and that's a recognized exception in those circumstances.
03:36But there is a legal process that you follow if you're going to assert that sort of defense, correct?
03:42That is correct.
03:43And if you don't assert that, if you accept this as a final order, are you bound to follow that order?
03:51I stand by my previous answer.
03:53There is a doctrine of exceptions, but in almost all circumstances, the answer is yes.
03:58Ms. Lanhan?
04:01I would agree, basically, that the typical rule is that parties before a court are bound by that court order.
04:09I think there have been a couple of exceptions that the panel has discussed.
04:13But I think, as a general matter, that that is correct.
04:19I wouldn't want to go into specifics because this is a hotly litigated issue, as Ms. Hermendorfer had talked about earlier.
04:27Mr. Stevens?
04:29Yes, Senator Durbin.
04:31As a judge, I do expect parties to follow my orders.
04:35Obviously, there's been references to other narrow exceptions to that rule.
04:40Frankly, with almost four years on the bench, I haven't encountered any of those exceptions.
04:44So, yeah, I expect parties to-
04:45But at each one, I want to make this clear.
04:47If you have a court order applying to you, you have to follow it or appeal it.
04:51That's my conclusion.
04:52Is that yours?
04:53Well, I expect that parties will follow my orders.
04:55Yes.
04:56Well, I'm asking you whether or not, you're not only expected, whether that is part of the rule of law in America.
05:03And I think it is, isn't it?
05:04Well, I think, yes, there's a process, obviously, before our court.
05:09If a litigant doesn't like a decision that they've gotten in our court, then they can ask for transfer from the Missouri Supreme Court.
05:14Mr. Devine, the quote comes from The Mirror, October 6, 2010.
05:23In The Mirror, you called yourself a zealot for the pro-life movement.
05:28So, I'll ask the question again.
05:31Do you believe in vitro fertilization should not be ethically permitted?
05:36Senator, I don't share the characterization of the article, which was written when I was a teenager.
05:41When I used the term zealot, I was referring to, I was using the same term you used in the March 26th hearing earlier this year,
05:47which is, if you're an advocate for a cause, you have a duty to advocate that cause energetically.
05:52I think Americans of all stripes, if they believe in an issue, they should advocate those issues energetically.
05:59So, where are you on in vitro fertilization?
06:01Senator, I don't think any of my articles in college, and I've disclosed over 200, has ever taken a position on that.
06:09Forget your college. I'm sure it was an exciting experience.
06:12Let's talk about now.
06:14You want a lifetime appointment to the federal bench, and I'd like to know your position on in vitro fertilization.
06:19Senator, you said you weren't surprised by my previous answer, which has been given by hundreds of nominees before me.
06:25I can't talk about those politically contentious issues.
06:28After Alabama made that fateful ruling about saying that an IVF embryo was a person, there was an effort by most mainstream people in politics in both parties to clarify their position on in vitro fertilization,
06:43including the current president of the United States.
06:46The fact that this panel, at least Mr. Devine, is struggling with that is, unfortunately, a tell as to what we can expect from you if your nomination is approved by you.
06:58It's going to be Senator Schmidt's turn, but can I just ask Mr. Devine, are you running for office?
07:03No, Senator. I've never been a political candidate.
07:05Are you seeking the nomination of a party or the approval of voters?
07:10No, Senator.
07:11Senator.
07:12You've been nominated to be a judge.
07:14Is that correct?
07:15That's correct.
07:16Will you be able to faithfully follow the law as you understand it?
07:19Absolutely.
07:20In fact, in my day to day when I'm advocating the interests of the state of Missouri, I set aside my own personal beliefs every single time I'm advocating the interests of my clients.
07:28And what's the controlling Supreme Court case on the life issue now as you understand it?
