Mike Lee Questions Emil Bove On Presidential Authority To Remove Executive Branch Officials

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During a Senate Judiciary Committee hearing last week, Sen. Mike Lee (R-UT) asked Emil Bove, one of President Trump's judicial nominees, about the power the President has to remove officials in the executive branch.

Transcript

00:00Senator Lee, I'd like to address the quid pro quo allegation head-on by entering into the record

00:07the official court transcript from Mayor Adams' case. This isn't speculation or second-hand

00:14reporting. These are sworn statements under oath in federal court. As you can read in the transcript,

00:21Mayor Adams, under oath, flatly denied any improper arrangement in his own words, quote,

00:28there was no deal, no quid pro quo, and I did nothing, end of quote. Senator Lee.

00:34Thank you, Mr. Chairman. Thank you, Mr. Bovet, for being here and for your willingness to serve

00:40in the capacity as a judge on the Third Circuit. As a federal appellate court judge, you'll be

00:46called upon to interpret federal law under countless circumstances. When you're interpreting

00:52a provision of the Constitution or of the U.S. Code, where do you start? What does that

00:57process entail? Tell me to what extent you would consider things like committee reports

01:03and the subjective musings of individual senators and representatives as they're debating federal

01:09law before it's enacted.

01:11So if I could start by differentiating between some comments about judicial philosophy, which

01:16I think go to the heart of your question, Senator, from the practical reality that if I'm confirmed

01:22in any case, I would consider and evaluate the arguments of the parties as they're presented.

01:26That said, with respect to my philosophy, whether it's constitutional interpretation or statutory

01:31interpretation, I would begin with the text, the text of the operative provision that drives

01:36the party's dispute. I don't think that in most instances, committee reports or legislative history

01:44has a lot to say about what the meaning of that text really is for purposes of the dispute.

01:51And that is because I think in the main, the legislative history has not gone through the

01:56process of bicameralism and presentment to become law. And a judge's job, in my view, is to declare

02:03what the law is, not what it should be or ought to be or someone on a committee thought it sounded like.

02:10It is to focus on the operative words and interpret them as they're written.

02:14What do you do in circumstances where it may appear that one or more lawmakers

02:18had a subjective intent surrounding a particular word or phrase that differed from that of the

02:27original public understanding at the time of the enactment of that provision?

02:31From a philosophical perspective, in my view, it is that the public meaning at the time of the

02:39enactment, at the time of bicameralism and presentment, that would govern.

02:43Great. I think that's an important distinction. It's impossible to run the subjective mindset of

02:52any individual through bicameralism and presentment. That's the kind of notice we're required to have,

02:57we're entitled to have as American citizens before we're subjected to a new provision of federal law.

03:03It has to go through that gauntlet. Otherwise, it's not a duly enacted law.

03:07What are the contours of the president's authority to appoint and remove, particularly to remove

03:13executive branch officials?

03:16So there are Supreme Court precedents on this issue, Senator, that I would apply faithfully if I'm confirmed.

03:23There's also litigation around these issues, so I have to be careful about how much of the details

03:29that I get into here. But generally speaking, under the seal of law case, the executive power,

03:37and I think the court, I'll paraphrase, but I think the court used the phrase,

03:39all of it is committed to the president of the United States.

03:43That type of broad commitment of power pursuant to the vesting clause in Article 2 could be read,

03:53and it's been said by some that it is the case, vests in the president a power to remove any official

04:00in the executive branch. And I think that's tied up in academia, in research and writing around the

04:06unitary executive theory. As I said, there's ongoing litigation right now relating to this,

04:13this administration's position regarding these issues, including the head of, for example,

04:21the Merit System Protections Board or the National Labor Relations Board.

04:26Yes. Is it proper for a lower court judge, let's say a federal district judge, to flagrantly disregard

04:32a direct order from the Supreme Court of the United States?

04:34No. In circumstances where you're reviewing as a judge on the U.S. Court of Appeals for

04:43the Third Circuit, should you be confirmed, be myriad circumstances where you'll be asked

04:48to review the disposition by a lower court of a dispositive motion. For example, Rule 12b-6,

04:56Motion to Dismiss, Rule 56, Motion for Summary Judgment. In your view, is one worse than another

05:07between a case in which, in a close case, somebody grants a non-meritorious dispositive motion

05:14or denies a meritorious dispositive motion? Is either one worse than the other? And if so, why?

05:20So, Senator, that's obviously a philosophical question that I think different people would answer

05:27in different ways based on their values and judgment. For me personally, because of my experience

05:33with jury trials, I prize the jury system that's enshrined in the Constitution. And so from my

05:41standpoint, to the extent, I guess the way I would frame it is, to the extent that there's a close

05:46question in a 12b-6 motion in a civil case or in a motion to dismiss in a, well, I'll leave it

05:54into the civil cases. If it's summary judgment, you're going down the summary judgment, right?

06:00Right, right. It would seem prudent to me to allow the case to go to a jury, which is really just,

06:06to me, a core part of our history and tradition that allows people in our local communities to make

06:13decisions and participate in the process. That's a fair point. And the fact that a judge in that

06:18circumstance is in doubt or experiences pause when deciding whether there's a genuine issue of

06:22material fact suggests that there is. Thank you, Mr. Chairman. Senator Whitehouse. Mr. Chairman,

06:27before my time begins, may I?

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