Mike Lee Dubs American Bar Association The ‘Lawyer’s Wing Of The Democratic National Committee’

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During a Senate Judiciary Committee hearing last week, Sen. Mike Lee (R-UT) spoke about the American Bar Association.

Transcript

00:00Thank you Mr. Chairman and thank you Ms. Hermandorfer for being willing to be here

00:06today and to be considered for this position. I want to get to questions in a

00:10moment. I do want to respond to a couple of assertions that have been made at

00:13this hearing already. Some involving the American Bar Association and some

00:17involving the Federalist Society, an organization that I belong to for the

00:20better part of the last 30 years. Look, the Federalist Society is not an

00:24advocacy group. It does not advocate. It's regarded by many as a conservative

00:28group and that's fair because a lot of its members happen to be conservative.

00:34But its events, unlike most American law school classrooms, are open to

00:42people of all viewpoints. In fact, the panel discussions that it routinely

00:45sponsors routinely, as a matter of course, do have multiple views represented.

00:50Differentiating it from many other organizations including ABA accredited

00:54law schools, including ABA discussions themselves. The American Bar Association, I would

01:00add, is about as independent, about as nonpartisan, is about as ideologically

01:05even-handed as the Democratic National Committee. Though the fact that the ABA

01:11first had an official role is itself stunning and alarming that it continued

01:15that long. The fact that it no longer plays an official role in this is appropriate. It's

01:20never appropriate in my view, particularly once the ABA decided to be a leftist

01:24organization. To be the lawyers wing of the Democratic National Committee has made

01:30this inappropriate. But if you want to attack the Federalist Society, look no

01:35further than the fact that the ABA is itself an advocacy organization the Federalist

01:39Society is not. So what? It provides an open forum for discussion among lawyers and law

01:45students. Open forum in which multiple viewpoints are in fact welcome. It's not an

01:51advocacy organization quite unlike the American Bar Association in that regard.

01:55Ms. Hermandorfer, you've accumulated a really impressive array of clerkships. It almost seems

02:01greedy to me that you've clerked for now three members of the current U.S. Supreme Court and very

02:06admirable that will serve you well. During that time you've had the opportunity while clerking for no fewer

02:12than four federal judges slash justices to observe the role of the judiciary. How would you summarize

02:21your judicial philosophy? My judicial philosophy is that the law is to be interpreted by the judge

02:28and not made by the judge and what I mean by that is of course there's new issues resolved and rulings

02:36made but the judge is not supposed to in the words of Alexander Hamilton in Federalist 78 substitute his

02:43or her passion or policy preference for the will of the people and it's the will of the people that

02:51gives all of our laws and the Constitution validity because that's the consent of the governed and so

02:58the judge is intentionally unaccountable to the people because there are times when you the judge needs

03:03to issue counter-majoritarian rulings and protect rights against the majority but with that comes

03:10the responsibility to issue appropriate orders and abide the limits on judicial power. In the same issue

03:16of the Federalist Papers, Hamilton also differentiated between will and judgment. What's your, in a sentence or

03:25two, just tell me what your understanding is of the difference between will and judgment and how you

03:29tell them apart as a judge? Judgment as a judge is applying the laws and the rules of decision

03:35neutrally to reach an outcome supported by the law. Will, by contrast, is superimposing the judge's own

03:42policy preferences against what the law would require and ruling that way in a case. When interpreting

03:49the text of a federal statute, which will often be your role as a judge on the Sixth Circuit, you'll have to decide,

03:56you know, what it means. How best would you describe how to go about that? Subjective intent on the part

04:03of Congress as a whole? Subjective intent on the part of the sponsor or this or that committee staffer who

04:08happened to write this or that report? Is it the original public meeting? How do you go about it?

04:13So the Constitution prescribes the appropriate way to make federal law and that's bicameralism and presentment of the text.

04:19And yes, the will of the internal decision-making process or intention is not what you look to.

04:29I'm so happy to hear you bring up Article I, Section 7, one of the most overlooked parts of the Constitution,

04:37one of the most important and often overlooked. What happens when we neglect the twin obligations,

04:44the twin prerequisites of federal lawmaking, all federal lawmaking, bicameralism and presentment?

04:51What does that do? So from a state's perspective especially, part of the grand compromise was

04:56having states with proportional representation in the Senate. You could serve as a veto gate for any

05:01federal legislation moving through when you instead bypass that process and issue federal rules that are

05:08not reflective of the democratic branches, bicameralism and presentment. You have a situation where the

05:13people and the states are cut out of the political process and subjected to rules that they don't

05:18necessarily have accountability for. I'll wrap up now if I can just finish this thought,

05:25Mr. Chairman. I tend to believe that most of the problems in the federal government,

05:28most of the contention around it, most of the discord that you see, most of our national debt,

05:33most of our sprawling regulatory system, all emanates from a deviation from the Constitution's twin

05:40structural protections, the vertical protection we call federalism, the horizontal protection we call

05:44separation of powers and within the legislative process, our deviation from this concept of

05:49bicameralism and presentment being the indispensable condition precedent that without which not of the

05:56legislative process. We now have a hundred thousand pages of new law made each year by unelected

06:00unaccountable bureaucrats, accountable to no one, imposing legal obligations that if you don't obey them,

06:06we'll find you millions of dollars, we'll shut down your business, can't even send you to prison,

06:11all without the assent of either house of Congress, much less both, and without presentment to the

06:17president. This is wrong and this is why you and others who have litigated some of these issues

06:23are right to point out the problem with so-called independent agencies. They lack under the Constitution

06:30any proper role in the lawmaking process that bypasses article one section seven. Thank you.

06:35Thank you. Senator Koontz.

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