'Senator, My Wife & I Are An Interracial Couple': Nominee, Schiff Have Tense Exchange On Originalism

Forbes Breaking News

At today's Senate Judiciary Committee hearing, Sen. Adam Schiff (D-CA) quesitoned Eric Chunyee Tung, nominee to be United States Circuit Judge for the Ninth Circuit.

Transcript

00:00Mr. Tung, you just said that you're an originalist and a textualist.

00:08So let me ask you, the Emoluments Clause provides that no person holding public office shall

00:13accept any president of any kind, whatever, from any king, prince, or foreign state.

00:18Do you believe the language in the Emoluments Clause that says any president, any president

00:23of any kind, whatever, means any president of any kind, whatever?

00:27Senator, you are quoting the text of the Emoluments Clause, and I cannot dispute with

00:34the text of the Emoluments Clause.

00:37So it would apply to any president, including an airplane?

00:42It would apply to the president, I believe, Senator.

00:47And I take it as an originalist, you would accept that the founders would have never subscribed

00:52to the idea that a president in their time could have accepted a multi-hundred-million-dollar

00:58gift from a foreign state.

01:01Senator, the premise of your question implicates live issues in the public and pursuant to the

01:09canons of judicial ethics.

01:10Well, let me just ask you, would the founders have believed that if a president received

01:15a hundred camels from a foreign state, that that was an emolument?

01:21Senator, it's difficult to answer that question in the abstract.

01:23Is it though, as an originalist, isn't it pretty simple?

01:26You've got the clear language of the Constitution.

01:30Senator, one has to look at the language, but also the history surrounding the Emoluments

01:34Clause in order to discern that they're in the way.

01:36I am looking at the history.

01:38Let me move on to another question.

01:41As an originalist, do you believe that the Obergefell v. Hodges decision affirming constitutional

01:50right to same-sex marriage, was that wrongly decided?

01:54Senator Obergefell v. Hodges is binding precedent of the Supreme Court.

01:57I'm aware of that.

01:58Do you believe it was wrongly decided?

02:00Senator, as a circuit judge, I would be bound to follow that.

02:03Oh, I understand that, but that's not a response to my question.

02:06Had you been on the Court of Appeals?

02:08Prior to that decision, would you have decided the case that way?

02:12Senator, prior to Obergefell v. Hodges, there was a prior Supreme Court case addressing

02:17the issue, and I would have followed that case.

02:19Well, would you have reached the same conclusion as the Supreme Court in Obergefell?

02:25Senator, I would have followed binding precedent.

02:28You're not answering my question.

02:30Would you have reached the same conclusion?

02:32Senator, the conclusions that the two precedents reached were potentially in conflict, and I would

02:40have to follow the precedent that—

02:42So you can't tell us at this point whether you would have reached the same conclusion

02:47as the Supreme Court in Obergefell.

02:49So let me ask you about the Supreme Court's decision in Lawrence affirming a constitutional

02:53right to be intimate among same-sex couples.

02:56Do you believe that was wrongly decided?

02:58Senator, Lawrence v. Texas is a binding precedent of the Supreme Court and I would be bound by

03:03that precedent.

03:04Again, I'm aware of that, but I'm asking you whether you believe that was rightly decided

03:06or wrongly decided.

03:07Senator, you're asking about my personal views—

03:09No, I'm asking about your legal views.

03:11I'm asking about your legal views.

03:13Let me ask you about another case.

03:15Do you believe that Loving v. Virginia, which affirmed an interracial couple's right to

03:20marry, was that wrongly decided?

03:23Senator, my wife and I are an interracial couple, and so if that case were wrongly decided,

03:29I would be in big trouble.

03:30Okay, so you do agree with the reasoning of that case, and you're willing to say that.

03:35I appreciate that.

03:36But you're unwilling to say that you agree that Obergefell and Lawrence were correctly

03:40decided.

03:41Why is that?

03:42Senator, again, those decisions are binding precedent of the Supreme Court, and I would be

03:48bound to follow.

03:49No, I'm aware of that.

03:50So is Loving.

03:51You're willing to tell us that you believe Loving was correctly decided, but you're not

03:54willing to say the other decisions were correctly decided.

03:57That seems less originalist and more situational.

04:01Let me ask you this about your role in the brief in Moore v. Harper.

04:06This was a case involving the discredited independent state legislature theory, which would allow

04:12a state legislature, even in the absence of a governor's signature, to effectively overturn

04:17an election.

04:19Do you believe that the Supreme Court wrongly decided Moore v. Harper when it rejected your

04:24view?

04:25Senator, again, Moore v. Harper is binding precedent of the Supreme Court.

04:29Yeah, no, I get that, but you're still not answering my question.

04:32So let me ask you a different way.

04:33If a state legislature decided after an election to pass a bill, even in the absence of a governor

04:41signing it, to throw out absentee ballots that were mailed prior to the election but arrived

04:47after the election, would it be your view that a state Supreme Court or federal court would have

04:55have to allow the legislature to overturn the election, would be powerless to correct that

05:00effort to overturn a free and fair election.

05:03Senator Moore v. Harper states that state courts can review what the state legislatures have

05:09passed as a matter of the Constitution.

05:11I'm aware of that.

05:12My concern, though, is that your unwillingness to embrace the reasoning of these decisions

05:20means that where there is room, and there is room in all of these decisions, and most particularly

05:26Moore v. Harper, for you as a court appeals judge to narrow these decisions, it sounds like

05:31you'll take that opportunity to narrow those rights.

05:34And in the case of Moore, which I agree with Judge Ledick, the most important case for our

05:39democracy in a century, narrowing that decision means empowering state legislatures to overturn

05:45election results, and I cannot imagine a more dangerous idea on the bench.

05:50I yield back, Mr. Chairman.

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