Transcripts For CSPAN Judicial Confirmations 20171129 : vima

Will take it up later this afternoon. They gavel back in at noon eastern. Live coverage here on cspan. And until then well take you live to the Senate Judiciary committee. Theyre considering several of President Trumps judicial nominees. [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] on my dads side, my grandparents were north louisiana charles and june green. They were remarkable people. They passed away in the last few years. Theyre very much missed. They showed me a great love and kindness when i was growing up in baton rouge. And id like to especially recognize my grandfather vince. Heres a man whose parents immigrated to louisiana in 1905. I saw the manifest of the ship from italy. Nd my grandfather was called v. J. By his family. He was a roofer in louisiana. I think i worked hard in my life but i have not worked nearly as hard as my grandfather did on any given day. He was a great man, intelligent man. Although he had to leave school in the eighth grade. He was a role model for me. I know if you can see me here today hed be proud of me. With that i want to thank you, again, for holding this hearing and i look forward to answering your questions. Senator grassley justice stause. Thank you, all, senator klobuchar, following your very kind introduction. Thank you, as well, to chairman grassley and Ranking Member feinstein for holding this hearing. To the other members of the committee for your consideration and to the president for nominating me. I would like to start by introducing my guests. First, my family. Including my wife of 20 years, heather, a licensed clinical social workers who works with individuals suffering from addiction. Also here today are my two boys, first is brandon, who is 17 and senior at wayzata high school. And my 10yearold, ben, who decided to come despite the fact it meant missing basketball and soccer practice this week. Second, i am honored the number of minnesotans have joined me here today, including former nited states senator rudy bosh wits. Jewish council director. And robin, the immediate past president of the Minnesota State bar association. Also here are charlie, commuck and david, all prominent attorneys in the twin cities community. Thank you so much for coming. I would also like to recognize the many people who supported me throughout the years who could not be here today. Including my family, my friends and my colleagues, past and present. In particular, i would like to recognize my grandparents who are Holocaust Survivors and whose sfoitses allowed me to be here today. Im incredibly honored to mind fives sitting in the same seat as the three judges for whom i clerked. As a young law clerk i could not imagine a career that would lead me to where i am today. I am deeply humbled by this opportunity. If confirmed, i will remain committed to interpreting and applying the law in an impartial manner. As i have done for the past seven years as a justice on the Minnesota Supreme Court. Thank you and i look forward to your questions. Senator grassley we will have fiveminute round requests and ill start with Justice Stras. In several of your opinions you discussed your role as a judge. You noted that, quote, my role as a judge is not to implement my own policy preferences but to interpret the law as written, end of quote. And youve observed that the Minnesota Supreme Court is not, quote, a Junior Varsity legislature. So i think i know why whats behind your statements, but would you elaborate on your statements, and i think what youre trying to say is what judges role is different from the legislature . Mr. Stras those arose in the context of separation of powers. Had a number of those cases over my last seven years and i think what i was trying to get at and i know what i was trying to get at in those particular cases is judges need to have a healthy respect for the other branches of government. We have a trigovernment and judges need to recognize that legislatures are the ones that write the law. The executive branch often implements the law and judges are by constitutional design supposed to decide disputes and those cases i think were trying to recognize a robust separation of powers between the various branches. Senator grassley in your seven years there on that Supreme Court, you participated in over 750 decisions. Of those, my Research Says you dissented in approximately 50 cases. Over 20 of those dissentence were joined by at least what other people have characterized as liberal justices. Youve also joined separate opinions by several liberal justices on multiple occasions. It seems to me you havent voted consistently with justices appointed by either republicans or democrats. And how did it turn out that way . Stras thats correct, chairman grassley. My guiding principle is i read the briefs, i listen to the oral argument carefully that the parties give and i try to figure out what the right answer is. I try to figure out what result the law compels. And i apply that law to the facts in a given case and sometimes i end up agreeing with republican appointed justices. Sometimes i end up agreeing with democratic appointed justices. But in all cases i used my best judgment and i tried to figure out what the law compels. And in fact, one of my colleagues who is known as liberal justice anderson, i know senator klobuchar mentioned justice this morning, one of the reasons hes supportive of my nomination is im objective and openmind. Senator grassley mr. Duncan, i was told you were louisianas first solicitor general and you accepted that position. How and why has that position prepared you for a seat on the fifth circuit . Mr. Duncan well, thank you, senator. In that position and in that position i was able to represent my home state of louisiana in some very difficult and highprofile cases in the fifth circuit. And the louisiana Supreme Court and the United States Supreme Court. When youre in that position and youre having to make arguments in difficult cases, my approach was, you have to take the politics out. You have to focus on the law. You have to think very carefully what is persuasive to a court. And you have to make the most reasonable and zealous argument that you can within the bounds of precedent for your client. So you have to think about whats important to the judges who youre arguing for. You have to honor and respect what their role is. And their role, of course, is to follow precedent. So you cant go into court and say you should disregard precedent. That would be a loser of an argument. You have to go into court and you have to explain to the judges what the law means. And ive had to do that in some very difficult cases. Cases really on both sides of the political aisle which i hope to talk about. Ive had to do that in difficult cases that have been in the media and i had to focus on the law and i think that prepares me to do what a judge does which is focus on the law and not on politics and not on policy preferences. Senator grassley my last question for the two of you, for mr. Duncan, senator kennedy pointed out your First Amendment religious liberty cases but the Circuit Court has a greater variety of cases so please describe the experience youve had working on other types of cases that youd like to see as a circuit judge. Mr. Duncan certainly, senator grassley, chairman grassley. So beginning in my career in texas and going over to louisiana, i dealt with sort of the whole gamut of cases that would come before the fifth circuit. Im thinking of cases on sovereign immunity, on qualified immunity, section 1983 liability, municipal liability. I was trying to total up the list and i think i had a case on just about every one of the bill of rights except the third amendment. Theres not many third amendment cases. Ive handled cases for the government. Ive handledcations against governments. Ive handled cases in the civil docket. Ive handled cases on the criminal side. Just trying to total up all the subject matters of cases that ive dealt with over my year my 20year practice was really difficult to come up with the end of the list. So id a great deal of experience across the gamut. Would add the fifth circuit multijurisdiction. General maritime law. I was fortunate enough to teach that subject to the university of mississippi law school. Its one of my favorite subjects. And if confirmed i think it would be an absolute delight to participate with the great judges of the fifth circuit ined a mirity cases. Senator feinstein i want to make the comment about the young people here. They generally sit in the front row so i have an opportunity to observe them. And i just want to say that ive never seen better behaved young people your age here today. So you get the gold star for the year so far. Now to the harder part. In twoucks, in 2016, mr. Duncan, you submitted an amicus brief in support of a texas law voter posed a strict i. D. Requirement. You argued, and i quote, voter identification requirements not only help prevent voter fraud but also foster Public Confidence in elections. Thus pa sill tating the peaceful, orderly transfer of power thats the hallmark of american democracy. Question, what evidence did you have that voter fraud is a widespread problem . Mr. Duncan thank you, senator feinstein. Ive been involved in a couple different voter i. D. Cases. One for the state of north carolina. One for the state of texas, amicus, as you point out. As i recall in that brief we were thinking of the crawford decision from the United States Supreme Court which found that voter i. D. Laws are prophylactic and they prevent the opportunity for voter fraud even if voter fraud goes undetected. And so thats what very much we were thinking about in those cases. Thats what we thought about in other cases. I recognize, senator, those cases are very difficult cases. For example, i was asked to file a cert petition. Its one of the most difficult cases because you are dealing with a Lower Court Opinion that was Something Like 485 pages long that meticulously went through and found that the voter i. D. And other laws issued there really didnt lower minority participation. In fact, increased minority participation. And then you had a decision from the Fourth Circuit that went radically the opposite way. We were just hoping to get that case to the Supreme Court so the Supreme Court could give us the proper analysis. And it was just a very difficult case. Senator feinstein what do you believe today . Mr. Duncan im sorry. Senator feinstein what do you believe today about voter fraud . Do you believe its a big problem or do you believe, as most of us do, thats minuscule . Mr. Duncan i dont have a personal view on that, senator. I believe what the Supreme Court said in the crawford v. Indiana decision, which is that voter i. D. Laws can act prophylactically to prevent voter fraud. Thats the precedent of the Supreme Court and i think thats proposition that case stands for. Senator feinstein and you think thats a justification for passing a law that it can act prophylactically so you pass it . Mr. Duncan senator, i think that could be one justification for any law that requires someone to make sure that theyre the proper person whos voting. Senator feinstein ok. You defended laws in texas and louisiana that severely restrict womens ability to access Reproductive Health care by requiring physicians to have admitting privileges at a hospital within 30 miles of a facility where abortions are performed. You argue the requirements were medically reasonable and focused on enhancing the safety of women seeking abortions. On what medical evidence did you base your conclusion that admitting privileges enhanced the safety of women . Mr. Duncan senator, as i recall, that was an amicus brief on behalf of a number of physicians and surgeons associations. As i recall, we went deeply to what were called hospital privileging guidelines for recognizing privileges are appropriate. We were representing really parties in that case making an argument about the efficacy of those laws. We recognized the Supreme Court came to a different decision. Thats what ive done for a good part of my career is make arguments for parties in litigation. But i recognize there is a really fundamental difference between being a party for a client a lawyer for a client where youre making arguments in the clients interest or in the amicus interest and being a judge where the judge is to apply the law, the precedent of the Supreme Court or whatever circuit you happen to be sitting on, without any consideration of personal preference or disagreement. So i recognize thats a fundamental distinction, and i can give you lots of examples from my career where i recognized that. Senator feinstein well, thank you. Lets just go back to this for a moment. When the Supreme Court struck down the texas law, the court noted, quote, when asked directly whether texas knew of a single instance in which the new admitting privileges obtain better treatment, texas admitted there was no such evidence. Were you aware of any evidence . Mr. Duncan well, senator, this is the let me just make it clear what position im in here. I currently represent louisiana in a similar case. And so i got to be careful what i say about pending litigation which i represent a party. I know you appreciate that. Let me try to answer the question this way. Our understanding of the hellerstead case which is the case youre referring to which is a precedent of the United States Supreme Court which is worthy of being followed just like every other precedent of the United States Supreme Court. Our view that weve taken in litigation is that precedent is driven by the facts of the record. In that particular case. I think Justice Breyers opinion made that a big part of the case. That it was looking at the record facts that were found by the district court. I believe it was judge yakele in that case in austin. And the position that we are taking in a similar case is there could be different record facts and in fact were arguing to the fifth circuit right now there are different record facts in a different case that should lead to a perhaps different outcome. Thats our argument. Senator feinstein ok. Excuse me. Justice stras. Oh, my time is up. No. Sorry. Thank you. Senator grassley except for senator leahy and Ranking Member feinstein and former senator hatch, id like to have people, if you ask your question within the last second and you get your answer questioned, when its answered as long as you start before the red light goes on you can answer your question. Senator kennedy. Senator kennedy. Senator kennedy thank you, mr. Chairman. Mr. Justice, mr. Duncan, you have incredible resumes. Only better than your resumes are your families and i agree with everything that senator feinstein said. I know you meant well, mr. Duncan, but you got nothing to apologize to me about. I dont feel disrespected. If i did it wouldnt matter. I used to be the Tax Collector or the state of louisiana. This stuff is patty cake compared to that. Its been suggested that if i dont vote for you that im not prolife and im not proreligious liberty and i think we both know thats not the case. This is about picking this for maybe in pick my lifetime, maybe not yours, to have a louisiana person to sit on the fifth Circuit Court of appeals. If you can give me a number or a yeah or nay, there are a couple things i need to get out of the way. They may seem weird to you but based on some of the past nominees that have come before like i need to ask them. Mr. Justice, have you ever blogged anonymously or otherwise in support of a cu ku klux klan . Mr. Stras no. Mr. Duncan no. Senator kennedy have you blogged that a child is part of satans plan . Mr. Stras no. Mr. Duncan no. Senator kennedy have you said someone is a prostitute . Mr. Duncan no, senator. Mr. Stras no. Senator kennedy how many jury trials as you done as lead mr. Stras Summary Judgment stage. I have not tried a case. Senator kennedy how many bench trials have you tried to verdict as lead council . Mr. Strast mr. Strass i have not. Mr. Stras i have not. Mr. Duncan no jury trials, senator. Senator kennedy how many bench trials . Mr. Duncan i have done two bench trials. Judge feldman and judge diegerfeld. Senator kennedy both good judges. Let me get this one out of the way because this five minutes goes real fast. Mr. Duncan, you heard my opening statement. Tell me what i say i have gotten scores of calls from lawyers back in louisiana who say, hey, you know, im experienced, im prolife, im proreligious liberty, some of them are judges. Im thinking of a person what do i say to a person, for example, like alan as to why i would not pick somebody whos been in louisiana for a while as opposed to picking somebody in washington, d. C. . Mr. Duncan thank you, senator. I would start with, i was born and raised in louisiana. I was educated in louisiana. Im a double graduate of Louisiana State university, both undergraduate and law school. I clerked for louisianabased judge. But more to the point, i have spent a significant and sort of prime part of my legal career and my reputation defending the laws of the people of louisiana passed. And those werent easy cases. It wasnt easy to go to the u. S. Supreme court in the hompson v. Connack to defend that and overturn that judgment. It was not eyesy to defend senator kennedy let me stop you. We have 30 seconds a