At Wednesday's Senate Judiciary Committee hearing, Sen. Amy Klobuchar (D-MN) questioned Whitney D. Hermandorfer, nominee to be United States Circuit Judge for the Sixth Circuit.
00:00Sure. Thank you very much, Mr. Chair. Ms. Hermendorfer, Donald Trump has said, I have an
00:08Article 2, this is an exact quote, where I have the right to do whatever I want as President.
00:14You filed a brief supporting his ability to fire Inspector General, and in another brief,
00:20you supported his attempt to undermine Congress's authority to create independent agencies to
00:24protect consumers, writing, Humphrey's branch busting reasoning was wrong the day it was
00:30rendered. What is your view of Congress's constitutional authority to enact laws and
00:35create checks on executive power? So I was, of course, an advocate representing a client in all
00:43of those briefs. My current understanding of the Supreme Court's precedent with regard to the
00:48President's removal power is that when it comes to principal officers, so that would include heads of
00:54independent agencies, the President, if that officer is exercising in the language of Collins
01:00versus Yellen, significant executive authority, that that officer must be removed by the President,
01:05no matter the size or role of the agency. And in those cases, you mentioned, Senator Klobuchar,
01:11the Supreme Court recently handed down an order, staying the District Court, DC Circuit's decision,
01:16and indicating that, with respect at least to the NLRB and the MSPB, that the President likely
01:24had the constitutional authority to remove those principal officers. And inspector generals,
01:29you believe the same principle applies? So there are lines of cases discussing inferior officers. There
01:35is a dispute in the inspector general's case about how to characterize inspectors general. If they are
01:41indeed characterized as principal officers, then under the reasoning of the Supreme Court, and there would
01:48be reason, potentially, to think that the Supreme Court's rule in Celia law and Yellen might govern. There are
01:56separate lines of authority for certain inferior officers. I stand by the positions in the brief, and wouldn't want to
02:02otherwise prejudge the merits of any controversy that could come before me as a judge. Okay, let's go back to your work as
02:08Tennessee Attorney, in the Tennessee Attorney General's office, where you defended the state's near total ban on abortion, which does not provide any exceptions for rape or incest. The law also contained a narrow medical necessity exception that chilled doctors from providing patients with the care they need.
02:26Isn't it true that, as a three-judge panel in Tennessee noted, the record was, quote, replete with examples of abortion care being denied in health and life-threatening situations, despite the state conceding that the, now I'm talking, that the medical necessity exception would have entitled them to care under Tennessee's medical necessity exception?
02:48So the decision of the three-judge panel at the preliminary phase was that the law should be interpreted to require and allow certain abortions provided in serious medical situations. Those included the ones laid out in the order, things like premature, pre-viable, rupture of the membranes, insufficient cervix. And so what the state had argued was the statute that Tennessee adopted
03:18used the same language that was used the same language that was used and approved by the Supreme Court in the Casey, Planned Parenthood versus Casey decision. And so it was always the state's position that the language allowed abortion care in those serious scenarios. And that is what the court held. And that's what the court held as a temporary injunction matter.
03:41Okay, so I actually met one of the plaintiffs, Rebecca Milner. She had suffered preterm premature rupture of membranes. Her baby was unlikely to survive and continuing the pregnancy put Rebecca at risk of potentially life-threatening infection. Yet because of the law, her Tennessee doctor denied her the abortion care she needed. As a result, she traveled to Virginia.
04:03She developed an infection the doctor said resulted from the delay in care and required emergency treatment for sepsis. Given you argued the court should uphold that law, even if it didn't work to protect her health, what would you say to litigants who questioned that you can be even-handed in applying the law, including to women trying to vindicate their rights?
04:25Yes. So what I would say is you can read the brief and read the positions that Tennessee took in that case and that I represented on behalf of my clients. And that was, there were many serious medical scenarios in which abortion, under the text of the law, would and should be permitted.
04:43And I would say that we were carrying out the will of Tennesseans to have that type of life or health exception, but at the same time, to vindicate a constitutional state amendment that makes clear that there is no otherwise non-medical right to an abortion under state law.
05:03One last question. Stephen Miller has said publicly that the White House is actively looking at suspending the writ of habeas corpus and, quote, a lot of it depends on whether the courts do the right thing or not.
05:19Conservative law professor Jonathan Adler said the White House can look at this question all at once, but it is ultimately up to Congress whether the writ should be suspended.
05:27Do you agree that only Congress can suspend the right to habeas corpus?
05:33So I think, as you mentioned, that is an issue that is under active consideration by the political branches and could very well come before me if I were confirmed as a judge.
05:43So I think in prudence as a judicial nominee, it would not be appropriate for me to pass on the validity of any such arguments.
