At Wednesday's Senate Judiciary Committee hearing, Sen. Dick Durbin (D-IL) questioned Whitney D. Hermandorfer, nominee to be United States Circuit Judge for the Sixth Circuit.
00:00He takes over, Senator Hawley, you will take over for me now, please.
00:08Go ahead, Senator Durbin.
00:10Thank you, Mr. Chairman. Welcome.
00:12Thank you very much for coming before us today and bringing your great family.
00:17Terrific. Glad that they're here.
00:19So let's get down to basics.
00:21Under Article 3, is your loyalty to the law and Constitution or to the President who nominated you?
00:27Under both Article 3 and Article 6, the Constitutional Oath, the oath is to faithfully follow the laws that apply in a given case.
00:39And the Constitution?
00:40Absolutely.
00:42Is the executive branch required to follow the orders of a federal court?
00:47So, of course, this is an issue before the Supreme Court right now.
00:50And what I heard the Solicitor General say is how I understand the law as well, which is if there is a judgment issued by a court as to the parties, that absolutely binds the parties.
01:02And the way to go about your business, if you disagree with an order, is to seek maybe a stay or emergency relief or appellate review.
01:11And after you've exhausted all of those opportunities, is the executive branch of our government required to follow the orders of the federal court?
01:22Yes.
01:22If the Supreme Court issues an order at the end of the appellate review process, that order is to be followed as to the parties in the case.
01:30Mr. Hermondorfer, I'm a little bit interested in the decision that you and the state of Tennessee made to file an amicus brief in the Supreme Court in the case of Trump v. CASA.
01:45That case involved challenges to President Trump's unconstitutional executive order that purports to end birthright citizenship.
01:54President Trump's executive order has been blocked by a judge appointed by President Ronald Reagan, who said, and I quote,
02:03I've been on the bench for over four decades.
02:06I can't remember another case where the question presented was as clear as this one.
02:10This is a blatantly unconstitutional order, referring to the order to end birthright citizenship.
02:17The state of Tennessee was not a party to that case.
02:20You filed this amicus brief voluntarily, and you reached a conclusion which the court ruled the most blatantly unconstitutional order in decades.
02:30Why?
02:33So, of course, we were amicus in the case.
02:35And the decision was made by the Attorney General reflecting the values of Tennesseans that we were not satisfied that all of the information regarding the contemporaneous meaning of the 14th Amendment was being presented to the various courts,
02:56given that the litigation was proceeding so quickly and at such a pace through the TRO and PI process.
03:04So, our role as amicus, as is any amicus's role, which was to bring additional information that could be helpful to the court's attention.
03:13And what we did there was draw the court's attention to contemporaneous 1800s-era sources regarding the meaning of the 14th Amendment.
03:23And I will note, Ranking Member Durbin, that even in courts that disagreed with the president's executive order, Tennessee's amicus brief was called out in particular as especially well-written and mentioned by the judges in the hearing.
03:39So, I'm hopeful that we provided helpful information as the court considered its decision, which is all you can ask is to ensure the court has all the information before it as it deliberates.
03:51Did you agree with President Trump on this issue?
03:54So, the brief did not take an ultimate position with regard to the merits of the executive order.
04:01What it did was say, the notion that this is an open and shut case is hard to square with the contemporaneous evidence and executive branch practice in the latter 1800s interpreting the meaning of the citizenship clause.
04:20And so, I stand by completely those arguments and the historical sources that we advanced to the court.
04:25You heard my opening remarks, perhaps, when I relayed my experience with the so-called Federalist Society.
04:32I asked judicial nominee after nominee, why do you belong to this group?
04:38Well, it became pretty clear because this was the secret handshake, the calling card, if you wanted to be considered favorably to be a Republican nominee for a federal judgeship.
04:48Well, they seem to have fallen on disfavor with President Trump.
04:51Leonard Leo has been characterized by the president as a sleazebag, and he went on to say some other negative things about the Federalist Society.
05:00So, now there's a new operation called the Tineo Network.
05:05Are you familiar with the Tineo Network?
05:08Yes, Ranking Member Durbin.
05:10Do you realize it was created by that same old sleazebag, Leonard Leo?
05:14I don't think I was aware of that.
05:16What is it?
05:17The Tineo Network, and I am a member, as disclosed on my SJQ, I'm a new member, so I haven't had too much involvement, I will say.
05:29My understanding is that it's similar to the Federalist Society in that it's kind of a debating network and a networking group where individuals from across industries can get together and discuss the issues of the day and get insights into what challenges might be facing various industries.
05:51Listen, you must lead a pretty busy life, your professional responsibilities, your family responsibilities.
05:59Why would you want to join this network so you can, well, describe for me, why would you want to join this network?
06:05So, it was commended to me by colleagues, and I'm always interested, as a Tennessean, in connecting with other Tennesseans to discuss the issues of the day.
06:15I have not had any meaningful involvement, given that I believe I was asked to join or invited to join a week or so before I was informed that I was receiving the nomination.
06:28And so, I haven't attended, since then, any sort of events or been involved.
06:37I'm going to yield my time now to Senator Blackburn.
06:40Just before I do, I just want to just clarify one thing to make sure I understood your answer, Mr. Mendorfer, to my friend Senator Durbin's question.
06:46He's asking about the CASA case.
06:48He talked about your brief, your brief filed on the CASA case.
06:51The state of Tennessee was the party they're filing, is that correct?
06:56That's right.
06:56And there's no filing that I would ever make or have made that would not reflect the interest of Tennessee.
07:04You're representing your client.
07:06This is the state of Tennessee.
07:07You work for the state of Tennessee.
07:09That's correct.
07:09I'm a state public servant who has a client and adheres to the direction of my appointed boss, the Attorney General.
07:17And I think your amicus brief also spent a good deal of time arguing that courts do not have Article III power to bind non-parties.
07:25In other words, it was about universal injunctions or nationwide injunctions.
07:28Wasn't that a core piece of your amicus brief?
07:30That was an important part of the brief.
07:31Yeah, I thought so.
07:32Senator Blackburn.
07:33I don't know.
07:34Iook that person in his personal life.
07:36I think his name is an agent in the search what protect the隊 of the city of California.
