At Wednesday's Senate Judiciary Committee hearing, Sen. Chris Coons (D-DE) questioned Whitney D. Hermandorfer, nominee to be United States Circuit Judge for the Sixth Circuit.
00:00Thank you very much. Ms. Hermandorfer, thank you for your service and the Tennessee Attorney
00:05General's Office, and congratulations to you and your family for your nomination.
00:09As you may know, I am not a reflexive no vote on nominees of a president of the other party. I've
00:15supported President Trump's judicial nominees in his first term when they had the qualifications
00:20and experience for the job and the character and the independence to carry out the role of a judge,
00:26particularly a circuit judge, with integrity. I am concerned about the striking brevity of your
00:32professional record. You graduated from law school just a decade ago, and you spent four years with
00:38impressive clerkships, but often nominees for a position such as the circuit have real experience
00:45in court. Have you ever served as the Solar Chief Counsel in any case tried to a jury verdict?
00:53Not to a jury verdict, Senator.
00:55Have you ever served as the Solar Chief Counsel in any case tried to a final judgment?
01:01I've served as Chief Counsel in many final judgment cases in trial court. If you mean a bench trial,
01:09I'm sorry, I don't understand. A bench trial would be no, but final judgment, yes.
01:13How many direct examinations have you personally taken in federal court?
01:17As an appellate lawyer, I don't usually take direct examinations, and the answer is zero.
01:21How many cross-examinations have you taken in federal court?
01:24None.
01:25How many depositions have you taken?
01:27Again, as an appellate lawyer, that's not really part of my practice. I tend to-
01:31How many depositions have you defended?
01:33I have not defended depositions.
01:35How many federal appellate oral arguments have you presented?
01:40Federal appellate oral arguments, that would be four.
01:42And how many Supreme Court oral arguments have you presented?
01:47None, though I've second-chaired and been counsel of record in Supreme Court matters.
01:51I'll just point out that the jurist you've been nominated to replace, Judge Jane Strontz,
01:55had 31 years of legal experience under her belt when nominated to this position in the Sixth Circuit.
02:02And the ABA, although disregarded by some, has long had a standard that without more than a dozen years of federal service,
02:13they would deem someone unqualified for a position such as what you've been nominated for.
02:18Let me move to a different issue.
02:20The Federal World Civil Procedure No. 65 sets out the rules of the road for issuing TROs and PIs,
02:26including whether a party moving must post a security bond.
02:29What factors should an appellate judge consider when ruling on a challenge to a security bond set or not set by a district court
02:37under FRCP 65C before issuing a TRO or a PI?
02:43So this comes up sometimes when the state is a litigant,
02:47and oftentimes parties can move to waive the security bond.
02:52And what a court is looking to is the gravity of harm to the potential appellant
02:57should the case, the disposition in the district court, be allowed to move forward.
03:04So it's similar to kind of equitable considerations of harm and the gravity of that harm
03:10and whether it would be reparable or, you know, compensable on the other end.
03:15And thank you.
03:16And in what sorts of cases is it typical to set or require a security bond?
03:22So I think cases in which there's going to be financial exposure, for example,
03:29on behalf of an appellant could be such a case where a bond might be posted.
03:35A contract case or a case involving infringement of a patent or something like that.
03:40Does your analysis change if the matter is a constitutional case brought by a private plaintiff
03:46against allegedly unconstitutional actions of the federal government?
03:51So it's I would have to take each constitutional violation and ruling on its own terms
03:58and wouldn't want to prejudge.
03:59But the equitable factors, of course, would be the ones that I would apply in such a situation.
04:05How would you set a bond for something as foundational as a violation of the Constitution?
04:12I'm not sure I could answer that in the abstract, Senator.
04:14And I'm not sure district court judges could answer that either.
04:17What tools does the Sixth Circuit or any circuit have to enforce its judgments?
04:22If you were confirmed and a party disobeys an order of the Sixth Circuit, perhaps even one you wrote, what would you do?
04:31Well, I know that there are mechanisms by which, of course, judgments are entered and executed and enforced through federal district courts.
04:41And what are those mechanisms?
04:43Well, the federal district court sometimes can issue contempt rulings, for example, that are appealable.
04:51And, you know, if you're talking about warrants or orders of those sort, I know the U.S. Marshals Office has some sort of involvement in that.
04:59But I confess this hasn't been part of something that I've litigated.
05:05And when would you feel you'd met the standard to call in the marshals to execute your judgment?
05:10I think it's very difficult, again, to answer that question in the abstract.
05:15And I can just tell you as a party, I've followed the appellate process whenever I felt as though a judgment had gone the wrong way against me.
05:26And I've secured appellate relief in those situations.
05:28Last question.
05:29And what would you do if the U.S. Marshals were to disobey and refuse to execute the judgment of the circuit court if they were instructed by the DOJ to stand down and to refuse to implement an order of the court?
05:42And that would, as a probably junior appellate judge on my court, be something that I would look to my colleagues and whatever governing rules and precedents would govern that situation.
05:57But, again, on the abstract, as a hypothetical matter.
06:01Ms. Hermandorfer, I hope this is an abstract and hypothetical matter.
06:04But it's one that occupies quite a few of us and quite a bit of our discussion on this committee.
06:10As we come up against the question of whether or not we have a president willing to disobey orders of federal courts.
06:16Thank you for your testimony.
06:17Thank you, Mr. Chairman.
06:18Ms. Hermandorfer, we're going to go to Senator Moody.
06:20But let me just ask you beforehand, just to make sure that I'm clear.
06:25My colleague was just asking about the number of cases that you've tried to a jury and cross-examinations performed before a jury and direct examinations performed before a jury.
06:35What court are you being nominated to?
06:37The Sixth Circuit Court of Appeals.
06:38The Court of Appeals.
06:40Do you have any appellate experience at all?
06:42I have litigated probably over 100 appellate cases.
06:46Over 100 appellate cases.
06:47How many different courts of appeals, how many circuits, how many different circuits have you argued or litigated in front of?
06:52I've argued in front of nine circuits in the Supreme Court.
06:56Nine circuits.
06:56Not argued, litigated.
06:57Litigated.
06:58Nine circuits in the Supreme Court, over 100 appellate cases.
