At Wednesday's Senate Judiciary Committee hearing, Sen. Josh Hawley (R-MO) questioned Emil Bove, nominee to be to be United States Circuit Judge for the Third Circuit, and current Deputy AG.
00:01Mr. Bovig, nice to see you. I enjoyed our conversation the other day. Congratulations on your nomination. If I could
00:07Let's turn the focus of the discussion back to the law
00:10I want to talk to you for just a second about your approach to the interpretation of statutes
00:15Which is something that we discussed when you and I had a chance to speak earlier
00:19When you encounter as you will constantly on the third circuit when you encounter an ambiguous statute
00:24What's your general approach? What do you what do you consult?
00:28What what's your approach to interpreting the text? Give us a sense of of how you'll tackle this
00:34What will be a daily occurrence? Should you be confirmed? So in the face of an ambiguity senator?
00:40I would consult the the context of the operative phrase
00:45consider the statutory structure
00:48look at
00:49Usages of similar terms by the operative legislature
00:53Legislature at the time in question because I think that matters as I said earlier with respect to
00:59Enforcing bicameralism and presentment and and try to garner as much as can be
01:06From those sources that those textual indications
01:11In the event that I think that those textual considerations don't resolve the matter
01:17Philosophically, I would be inclined to exercise restraint and not insert
01:25Myself or a panel of the third circuit if I was confirmed into a position of declaring
01:32What the meaning of an ambiguity is as opposed to?
01:36Deferring back to the legislature on that topic
01:39You just use the word text or textualist about three or four times. Do you consider yourself a textualist? Is that a fair assessment?
01:46Yes, and
01:48Let's just think about a controversy that exists among those who call themselves textualist some textualists say that the statute ought to be interpreted an ambiguous phrase ought to be interpreted according to the public
01:59Understanding at the time that the statute was enacted other textualist self-identified textualists say that a text meaning
02:09Sometimes only becomes clear over time
02:11So there needs to be an elapsed of time you can consider
02:15What's happened in a space of time rightly to interpret an ambiguous phrase both camps call themselves textualist? Where do you fit?
02:24In the first one senator, I think that it
02:27An interpretive methodology that allows the meaning of a statute to to shift over time potentially over the course of interpretations
02:36Interpretations by different judges under different circumstances or at the at the whims of policy or political considerations
02:44Can be very problematic if I were confirmed part of my philosophy would be to do this job
02:51Pursuant to the limited powers in article 3 in a way that enhances the democratic features of the political branches and by that I mean
02:58Focusing on the text what it meant at the time it was put on the books and deferring to those political branches on the other matters
03:05Okay, good
03:06So I hear you to say that you reject the idea that that an acts meaning can only become clear over a number of years
03:11You think it ought to be interpreted as understood at the time it was enacted by the public meaning at that time
03:17Have I got that right? Yes, good
03:20Let's talk about substantive due process for just a moment. What's your understanding of that doctrine?
03:24I
03:27Think there's a basic test
03:30Set forth in Supreme Court precedent that I would apply faithfully if I'm fortunate enough to be confirmed that seeks to identify
03:40Certain fundamental rights as a matter of substantive due process that
03:45That precedent the precedent for that test as I understand it basically requires consideration of whether the right at issue is
03:52Implicit in the concept of ordered liberty and also consistent with deep history and traditions of the Republic
04:02There's a lot of academic writing about the merits of that test that I think for judges
04:08Particularly me if I'm confirmed is sort of beside the point because on the third circuit
04:13I'd be bound by Supreme Court precedent like the Glucksberg case to apply that test in the context of arguments presented to me by the parties
04:20What is the leading Supreme Court precedent on?
04:22What is the leading Supreme Court precedent on substantive due process to your knowledge?
04:27I think the
04:30There's several cases that lay out and address the test that I that I just described in the context of
04:36Discussing different fundamental rights
04:38Dobbs is one of them. I mentioned the Glucksberg case, which is an older formulation of that test
04:43Yeah, in fact the Supreme Court has has used different tests over time the substantive process has has two branches
04:48No, it has the incorporation branch
04:50And then it has the fundamental rights branch
04:53You've been describing the fundamental rights branch the court has used different tests over the years
04:58Frankly to describe what counts as a fundamental right those tests are quite divergent if we're being honest
05:04But there is this court seems to have settled on one recently
05:07And I think you just put your finger on the decision that that most recently draws these themes together these strands together. That's the Dobbs decision
05:14Do you regard the Dobbs decision as as settled law?
05:21Yes
05:21That as controlling law
05:24That that is what I mean is that it's a binding precedent of the Supreme Court that I would be required to apply faithfully if I'm confirmed
05:30And so you will apply the Dobbs decision not only in the context of life and abortion which is the immediate context, but also
05:37for its instruction on the meaning of
05:41Fundamental liberties under the substantive due process head. Is that correct? Is that fair to say?
05:45I think it's fair to say that a judge
05:48Endeavoring to be bound by the rule of law which is certainly what I would be trying to do
05:52Applies all relevant Supreme Court precedents in a faithful way and that would be my mission
05:57For life if I am confirmed
05:59But you were sorry just I want to be clear on this just on this last point
06:02This is important because there's lots of Supreme Court precedents that conflict with one another over the years
06:07You will apply the control the current and controlling precedent to the matter at hand. Is that fair to say?
06:13Yes, without hesitation which in this case you recognize to be the Dobbs case. Is that fair to say?
06:21Yes, I think Dobbs is a recent formulation of the substantive due process test that we're talking about that would bind you
