AIConfirmation hearing for four federal circuit and district judge nominees

Name: Confirmation hearing for four federal circuit and district judge nominees
Start: 2025-07-30
Location: US Senate

Federal Judge Confirmation HearingsSenate Judiciary · 2025-07-30 · 119th Congress

Transcript

Highlights

▶ 0:00:15Both have advocated for a rate cut. It is a sign of division of the fed reflecting the economy's muddy outlook and possibly the jockeying to replace fed chair jerome powell --

▶ 0:33:40Chair Grassley: Before we get started, I wanted to acknowledge the earthquake that occurred late yesterday and the tsunami that resulted overnight, which continues even now. My prayers are with the people of hawaii and the continental west coast, as well as other countries, as I encourage the american people to keep those affected in their prayers.

▶ 0:34:08Chair Grassley: Last night I was surprised to see president trump on truth social go after me and senate republicans over what we called the blue slip. The people in real america, not washington, D.C., the people in real america don't care about with the blue slip is.

▶ 0:34:38Chair Grassley: In fact, it impacts in their states the district judges who serve their communities and U.S. attorneys who ensure law and order is enforced. I was offended by what the president said and am disappointed that it will result in personal insults.

▶ 0:35:01Chair Grassley: We are here to do business, a very important part of this committee's work. To do our constitutional duties of reviewing people that require senate confirmation. Good morning. I would like to welcome everyone to today's hearing. Our first panel features eric tung, nominated to the U.S. court of appeals for the ninth circuit.

▶ 0:35:35Chair Grassley: Joshua dunlap nominated to the U.S. court of appeals for the first circuit. On panel 2, we will hear from district court nominees stephen chad meredith, eastern district of kentucky, and william mercer, district of montana. Each of the nominees that we will be hearing from today is immensely qualified. To begin with I have the privilege of introducing Mr. tung.

▶ 0:36:07Chair Grassley: Mr. tung completed his college degree at yale university law school, university of chicago graduating with high honors. After law school Mr. tung clerked for then-judge gorsuch, U.S. court of appeals 10th circuit. He served in a very distinguished role as a bristol fellow in the U.S.

▶ 0:36:37Chair Grassley: Solicitor general's office. Upon completion of that program he clerked at the U.S. supreme court for legendary justice scalia. After his first supreme court clerkship, Mr. tung went into private practice. He was there for a couple of years before joining the department of justice. First as assistant U.S.

▶ 0:37:06Chair Grassley: Attorney, central district california, then his counsel for the office of legal policy at the office of legal policy. Mr. tung was awarded the attorney general's distinguished service award. Because a single supreme court clerkship was not enough, Mr. tung went back to the highest court to law clerk for justice gorsuch.

▶ 0:37:36Chair Grassley: Since then Mr. tung has worked at jones day in los angeles, first as an associate then a partner. His practice focused on appeals and constitutional litigation. Mr. tung was appointed as a civil appellate practitioner on california's appellate defense oversight advisory committee. At every turn of his career Mr. tung was not only succeeded but excelled.

▶ 0:38:08Chair Grassley: He is a standout appellate lawyer and a great choice to serve on the ninth circuit. Likewise, Mr. dunlap is a stellar appellate advocate. Our district court nominees are also highly qualified. We will introduce them after the ranking member makes his opening statement.

▶ 0:38:27Sen. Durbin: Thanks, Mr. chairman. I especially appreciate your opening statement related to the publication in truth social last night. You have stated publicly that you support the blue slip, as has senator graham before you. I followed that standard as well in the four years that I chaired this committee.

▶ 0:38:54Sen. Durbin: Maybe it is inside baseball and too much minutia but it relates to the relationship between the minority and majority on this committee and the basic rights that we have given for district court judges to the senators that we serve with. I thank you for saying what you did this morning. When you have asked me about this outside of this room, I said you have given your word, as I have as well, and we stand by it. I hope that continues to be the case.

▶ 0:39:25Sen. Durbin: I believe it will. Today slate of nominees represents the latest chosen by the trump administration. Notably, both nominees in the first panel were selected without meaningful consultation with all of their home state senators. On the outset I would like to address how Mr. dunlap and Mr. tung were selected. For both nominees the white house didn't engage directly with the democratic home state senators.

▶ 0:39:55Sen. Durbin: For the first vacancy, senator king was informed two months ago that the white house was considering Mr. dunlap. Senator king had no role in submitting candidates to the white house. The ninth circuit selection process, the white house engaged with senator padilla and senator schiff for only three months before announcing this nomination.

▶ 0:40:15Sen. Durbin: In comparison, the biden white house discussed 2/6 circuit vacancies and a fourth circuit vacancy with home state senators on this committee for seven months, nine months, and six months respectively before making a selection. Beyond the lack of meaningful consultation with democratic home state senators, there are troubling aspects of these nominees' records which will be discussed at this morning. This year the federalist society of memphis Mr.

▶ 0:40:43Sen. Durbin: Tung blamed welfare for the "dissolution of the family" and questioned the constitutional rights of lgbtq americans to get married or even engage in private sexual contact. Mr. dunlap was counsel in dozens of cases defending big pharma for its role in feeding the opioid epidemic that has claimed the lives of hundreds of thousands of americans.

▶ 0:41:15Sen. Durbin: William mercer, nominee to the district of montana, played a key role in the U.S. attorney during the bush administration. As a result his nomination for associate attorney general was withdrawn. I look forward to hearing Mr. mercer's explanation for proposing language in the montana legislature that would have eliminated the statute of limitations for civil lawsuits by survivors of child sex abuse. Mr.

▶ 0:41:38Sen. Durbin: Mercer proposed amendments to the bill that survivors called "a total sellout in favor of child molesters and insurance companies." I am relieved despite his initial opposition the compromised bill was initially enacted in montana. I'm deeply concerned by chad meredith's record.

▶ 0:41:59Sen. Durbin: He repeatedly took extreme antichoice positions while serving as deputy counsel for then kentucky governor matt bevin and as kentucky solicitor general. I want to hear from Mr. meredith his role in governor bevan's controversial pardons of dozens of violent offenders during his final days in office. Mr.

▶ 0:42:20Sen. Durbin: Meredith reportedly come and he will get a chance to testify, signed off on the pardon of patrick baker, who had been convicted for "pretending to be a U.S. marshal, robbing a pregnant woman at gunpoint, and killing her husband before stealing oxycodone from the victim's residence." prior to the pardon, baker's brother held a fundraiser for governor bevin, which included a personal conversation with the governor.

▶ 0:42:50Sen. Durbin: I fear that these nominees unfortunately have many questions that need to be answered. A big for the patients of this committee in bringing all of this to light.

▶ 0:42:58Chair Grassley: Senator collins.

▶ 0:43:02Sen. Collins: Thank you, Mr. chairman. Good morning ranking member durbin, members of this committee, I'm pleased to appear before this distinguished committee today to wholeheartedly support joshua dunlap's nomination to serve on the U.S. court of appeals for the first circuit.

▶ 0:43:30Sen. Collins: I do want to explain, given senator durbin's comments, how we go about choosing judicial nominees for the federal bench in the state of maine. We each, depending on which administration is in charge, form an advisory committee that interviews individuals who are interested in being nominated.

▶ 0:44:03Sen. Collins: That advisory commission then advises the senator of the same party as the president what their choices are. In this case, Mr. dunlap was the number one choice of the advisory committee.

▶ 0:44:25Sen. Collins: At that point the other senator, in this case senator king, interviews the individual after the nomination has gone to the white house. Two nominations or three, possibly, go at a time.

▶ 0:44:50Sen. Collins: Before the nominee is officially nominated, the other senator from the state of maine has the opportunity to interview the nominee. That is what happened in this case. That is what happened in reverse during the biden administration. I just want to make clear that there was no change in the way the selection process was handled. Josh grew up in maine and now lives in scarborough with his wife and their three children.

▶ 0:45:22Sen. Collins: If you look behind me you will see his three children, his wife, his parents, and numerous other members of his family. In fact, 20 of them who are so proud of his nomination that they have made the trip to washington.

▶ 0:45:43Sen. Collins: Josh graduated first in his class from an ordered -- from notre dam law school where he received the highest honor to the student with the most distinguished academic record. He then clerked for the 10th circuit. In 2009, josh joined the very well respected law firm, pierce atwood in portland, maine.

▶ 0:46:12Sen. Collins: During his 16 years at the firm he specialized in complex civil litigation matters and currently serves as cochair of the firm's appellate and amicus division. Josh has submitted to practice in multiple U.S. courts of appeals and before the U.S. supreme court.

▶ 0:46:38Sen. Collins: He is also assisted special masters in three original jurisdiction proceedings before the U.S. supreme court. Finally, josh also chairs the maine appellate rules committee, to which he was appointed by the maine supreme judicial court.

▶ 0:46:56Sen. Collins: This impressive experience, coupled with his extraordinary intelligence and integrity, makes josh exceptionally well qualified for a seat on the first circuit. His substantial appellate litigation experience will bring a practitioner's perspective to the court.

▶ 0:47:22Sen. Collins: The committee has already received many compelling letters of support for this nominee, and I would like to highlight a couple of them. A diverse group of faculty and alumni of notre dame law school who taught josh or studied alongside him have praised his "respect for differing views," deep appreciation for the rule of law.

▶ 0:47:55Sen. Collins: A letter signed by 19 leading maine attorneys who describe themselves as having a broad spectrum of political views and legal philosophies wrote that josh has all the qualities that the finest judges exhibit, hard-working, courteous, judicial and temperament, very smart, and of sterling character with a commitment to fairness and the rule of law.

▶ 0:48:26Sen. Collins: Mr. chairman, before I conclude I would like to thank judge william kayatta, who josh has been nominated to replace. I recommended him to president obama and had the honor of introducing judge kayatta to this committee.

▶ 0:48:53Sen. Collins: Now, it is my honor to recommend josh, who actually worked with the judge kayatta in his tenure at pierce atwood to this committee. I'm confident that if confirmed josh will serve maine and the nation extraordinarily well in this critical role.

▶ 0:49:16Sen. Collins: For these reasons I urge the committee to support his nomination, and I appreciate this opportunity to introduce him to the committee. Thank you, Mr. chairman.

▶ 0:49:31Chair Grassley: Senator mcconnell.

▶ 0:49:38Sen. Mcconnell: Mr. chairman, members of the committee, it is my privilege today to introduce my fellow kentuckian, chad meredith. President trump made an outstanding choice with this nomination to be U.S. district judge for the eastern district of kentucky. Earlier this year I proudly recommended chad to the white house.

▶ 0:50:04Sen. Mcconnell: As you will see in today's hearing, he has the intellect, skill, and experience to excel as a district court judge. One of the senate's most important constitutional responsibilities is advice to executive nominations, and like you I take seriously the responsibilities to carefully consider every nominee, especially from my home state.

▶ 0:50:37Sen. Mcconnell: Chad is a very bright lawyer with a stellar resume and a distinguished record of public service. But I would like to share with you how I first met him. Chad interned in my office in 2003.

▶ 0:50:53Sen. Mcconnell: The internship program, and I know virtually all of you have the same sort of thing, provides college students with the opportunity to enhance their education as well as increase their knowledge of issues important to the commonwealth and the country. We select our interns on the basis of strong scholastic and extracurricular achievements and interest in the government process.

▶ 0:51:22Sen. Mcconnell: I have been impressed to watch a former mac intern through the decades succeed in the legal field, public service, and now be nominated to the federal bench. Chad graduated summa cum laude from washington and lee. Summa cum laude from the university of kentucky college of law.

▶ 0:51:48Sen. Mcconnell: Following his formal education he sharpened his legal skills with two judicial clerkships with then district judge on the eastern district of kentucky and judge john rogers on the sixth circuit. He served as the first solicitor general for the commonwealth of kentucky.

▶ 0:52:13Sen. Mcconnell: As the solicitor general from 2019-2021 chad oversaw all criminal and civil appellate litigation involving the commonwealth. He earned a reputation for being fair-minded and professional and for having a stronger -- strong work ethic. Through the country we have dozens of current and former state solicitors general expressing their strong support for chad's nomination.

▶ 0:52:45Sen. Mcconnell: As kentucky's first solicitor general, they said, chad distinguished himself in diverse areas of federal and state law and exhibits the temperament necessary to be a district judge . As chad's professional peers who witnessed his work, he has the qualities to serve with distinction as a district judge. That is from the other solicitors from around the country.

▶ 0:53:14Sen. Mcconnell: Additionally, it's quite notable to hear from hundreds of lawyers calling chad fair-minded. These lawyers come from many diverse backgrounds including civil litigators, prosecutors, and criminal defense attorneys.

▶ 0:53:31Sen. Mcconnell: They hold various political views and judicial philosophies and are supporting this nomination saying, we all agree that our legal system needs judges who carefully and honestly evaluate the arguments made by the parties and do with the law requires. They all believe chad will excel as a district judge.

▶ 0:53:57Sen. Mcconnell: Amid chad's great professional success in private practice, his colleagues know his value as an excellent lawyer and finger will serve our nation well. As much as we don't want to lose him, our loss would be the public's gain. This is all very resounding support. Where that support runs deepest is chad's family, who are here.

▶ 0:54:24Sen. Mcconnell: I would like to recognize his father, kentucky state senator steve meredith, and his mother karen. They are both here and I know they are very proud of chad. So is his wonderful wife, rebecca. We can bet that each of their children are beaming with pride for their dad.

▶ 0:54:50Sen. Mcconnell: Joining to support chad's commitment to public service is kentucky state representative as well as many members of his family, friends, and colleagues. Mr. chairman, thank you for the opportunity to put in a good word. I'm confident that chad meredith who has demonstrated devotion to the rule of law and constitution will serve the people of kentucky and our country well on the federal bench. Appreciate the opportunity.

▶ 0:55:21Sen. Mcconnell: Look forward to this confirmation.

▶ 0:55:22Chair Grassley: Senator daines.

▶ 0:55:25Sen. Daines: Chairman grassley, thank you, as well as ranking member durbin. It is an honor to be with you to speak in support of my friend, Mr. william mercer, and his nomination to serve as the next judge of the U.S. district court for the district of montana. Bill is a lifelong montana born in billings, where my dad and mom met. My dad married the girl next door. It is where bill was born.

▶ 0:55:56Sen. Daines: We were high school rivals. Bill was a golden bear from billings west high school and I was a bozeman hawk. We debated each other in speech once upon a time. I've known bill a long time. He received his undergraduate degree at the university of montana and then on to harvard where he received his masters of public administration. He received his law degree from george mason. Bill has served montana's country in various roles in the past three decades. In montana he served as U.S.

▶ 0:56:26Sen. Daines: Attorney for the district of montana from 2001-2 thousand nine. Represented billings in the montana house of representatives for the past seven years. At the U.S. department of justice, bill served as principal associate deputy attorney general and acting associate attorney general during the george w. Bush administration and has been actively engaged in his community, serving on five nonprofit board of directors in montana. He has been a member of the montana bar for 32 years.

▶ 0:56:58Sen. Daines: He has appeared in state and federal court in montana, in numerous cases as a lead counsel, and represented clients in appellate courts which result in oral arguments and 15 cases in court of appeals for the ninth circuit. -- ninth circuit, D.C. circuit judge, and montana supreme court. Bill has been recognized by the legal community for his outstanding track record, being rated among the best lawyers in montana for environmental and commercial litigation.

▶ 0:57:28Sen. Daines: Throughout his extensive legal career and years of public service, bill has represented montana's interests very well. He is committed to the rule of law and the original interpretation of the constitution. Bill understands montana-specific laws and issues. His experience as a widely respected and effective member of the montana house of representatives brings him in tune with the needs of our state, families, and communities.

▶ 0:57:53Sen. Daines: I believe his time serving in helena has given him an important additional perspective on the law and the importance of judicial impartiality. Senator tim sheehy and I are confident that the list the top choice to once again serve montana, this time as a federal judge. We take this responsibility very seriously come as we know these are lifetime appointments and require careful consideration.

▶ 0:58:22Sen. Daines: His time at the department of justice, as U.S. attorney, as state legislator prepared him well and I can't think of a better pick once again in this new role. I look forward to working diligently with my colleagues to confirm this nomination and I want to think this committee for its consideration.

▶ 0:58:40Chair Grassley: Senator padilla for three minutes.

▶ 0:58:44Sen. Padilla: Thank you, Mr. chairman and ranking member durbin for the opportunity to share my serious concerns about one of today's nominees. Eric tung was chosen for this lifetime position because of extreme conservative ideology and association with the conservative federalist society.

▶ 0:59:04Sen. Padilla: The white house selected him despite clear communication from me and senator schiff that he was an unacceptable choice, and despite our putting forward names for the white house to consider for candidates, both of whom are republican judges, previously nominated by president trump to the district court. That is not why I am opposed to Mr. tung's nomination. I'm opposed because Mr.

▶ 0:59:31Sen. Padilla: Tung believes in the constitution that rejects equality in liberty and would turn back the clock and continue to exclude vast sections of the american public from enjoying equal justice under the law. In the last few years, we have seen what extreme conservative ideology has done to erode public trust in institutions like the judiciary, including and especially the supreme court.

▶ 0:59:58Sen. Padilla: As long-established legal precedents have taken a backseat to whatever novel, conservative legal approach accomplishes the desired political outcome. Continuing to confirm extreme ideologues to the federal bench, the senate would be doing california and the american people a deep disservice.

▶ 1:00:19Sen. Padilla: The people of the ninth circuit deserved judges who believe in gender equality, equal rights for lgbtq+ people, ■judges who believe the first amendment applies to speech they personally dislike as much as speech they support, and who believe in the principal of the separation of church and state, and who believe in protecting our workforce. That is not eric tung. In addition to his partisan ideologies, we can talk about his narrow legal experience.

▶ 1:00:50Sen. Padilla: For those walking at home, an appellate judge's role is to hear appeals that arise from the decisions of lower courts. That is why it is important appellate judges have experience not just with appeals but with trial litigation. Mr. tung has none. He has never served as early counsel in a case tried to verdict or to judgment from the bench. He himself only makes up 10% of his work on criminal cases.

▶ 1:01:19Sen. Padilla: It is important to acknowledge a larger moment that we are in. During the first six months in office, president trump has mounted a historic attack on our nation's justice system. He has tried to remake the department of justice and federal bench in his own image, rewarding those who have demonstrated that they are loyal to him over the rule of law. That is true of his attorney general pick.

▶ 1:01:41Sen. Padilla: Is deputy attorney general pick of the fbi director and more recently to reward even his personal lawyers with roles like U.S. attorney for the district of new jersey, and even federal judge on the third circuit court of appeals. He has gone around the senate's advice and consent role for the pic in new jersey and new york and now in my home state of california.

▶ 1:02:04Sen. Padilla: So, I can't wait to get to the questions segment of today's hearing, but I tell you now, colleagues, I strongly oppose this nomination and urge you to do the same.

▶ 1:02:18Chair Grassley: Senator schiff for three minutes.

▶ 1:02:23Sen. Schiff: Thank you chairman and ranking member durbin. What I was most looking forward to was a chance to work with the white house, including under republican administrations, to select nominees for the federal bench in california and beyond. Unfortunately, that optimism did not last very long.

▶ 1:02:43Sen. Schiff: I was disappointed by the white house's failure to work with senator padilla and myself to select an appropriate and mainstream nominee to the vacant ninth circuit of appeal seat in pasadena. Instead president trump decided to appoint eric tung, someone who is and has expressed a vehemently antilabor, anti-collective bargaining ideas and once organized to protest against labor day. As a U.S.

▶ 1:03:07Sen. Schiff: Senator from california that is particularly concerning for a state where senator chavez made such a principal -- such a principled and celebrated stand for working people. Mr. tung has been a proponent of dangerous legal arguments like the independent state legislator theory, a theory so fringe even this supreme court ruled against the position that he took in 2023 by a vote of 6-3.

▶ 1:03:33Sen. Schiff: That case, which a conservative scholar and judge described as the most important case for american democracy and the almost 2.5 centuries since america's founding. That we would have someone take such a dangerous and fringe position in a case of that importance to our democracy is deeply alarming. Mr.

▶ 1:03:56Sen. Schiff: Tung has said that he believes in gender roles and as an originalist he disagrees with the current supreme court precedent recognizing a constitutional right to same-sex marriage and same-sex couples' right to privacy. The white house, I think, missed a real opportunity to work with senator padilla and myself to identify a candidate who could garner bipartisan support in this fragile moment.

▶ 1:04:20Sen. Schiff: We were prepared to and have tried to work in good faith, despite the many attacks that we have endured from the white house against senator padilla and myself. Just this week, the attorney general announced that her department filed a misconduct complaint against the sitting federal district court judge because he ruled against the administration and issued an order to show cause why the justice department should not be held in contempt.

▶ 1:04:48Sen. Schiff: The merits of which now multiple whistleblowers have filed complaints. This action by the administration to penalize a judge holding hearings into whether orders of his court were violated demonstrates, I think, the danger to the rule of law, and to the importance of making sure that we confirm judges who will prioritize obedience to the rule of law and not just

▶ 1:05:20Sen. Schiff: Obedience to the president of the united states, the person of the president. More than ever we need federal judges who will protect the rule of law. I joined senator padilla in expressing my grave concerns about Mr. tung. I look forward to this hearing and the opportunity to question him about his loyalty to the president and whether that takes priority over obedience to the law. I yield back.

▶ 1:05:47Chair Grassley: Mr. tung and Mr. dunlap, please come forward and stand so I can swear you in. Do you swear that the testimony you are about to give before the committee will be the truth, the whole truth, nothing but the truth, so help you god? Both responded affirmatively. Now, please sit. Before you give your statement, if you want to introduce family and friends you have the right to do that. I will start with Mr. dunlap.

▶ 1:06:18Mr. Dunlap: Thank you, chairman grassley, ranking member derbent, members of the committee for the opportunity to be here today. It is an honor to be here. Of my four grandparents, only one went to college. My two grandfathers with only high school educations built their own small businesses from the ground up. I think they would be proud. There are many people I would like to thank.

▶ 1:06:48Mr. Dunlap: Time allows only a few. I would like to thank president trump for the honor of this nomination. Second, I would like to thank senator collins for her warm support from the very outset of this process. Most significantly, I would like to thank my wife sidney for her tireless love and support throughout this process. I would not be here without her. I'm thankful that she is here with me today along with my three children. They are my world. I wish I could mention all of my extended family who are here with me today.

▶ 1:07:18Mr. Dunlap: I cannot do that, but I am so deeply grateful they are here showing their support. I would be remiss if I didn't mention my parents, frank and colleen dunlap, and the sacrifices they made over the years to make today possible. I recognize I am here today standing on the shoulders of those who have come before me. I want to thank my many mentors, in particular judge kelly of the U.S. court of appeals for the 10th circuit, and my many friends and colleagues at pierce atwood. Thank you.

▶ 1:07:50Mr. Dunlap: I have learned much from you. It is my sincere desire should be confirmed to serve my state and country well by upholding the rule of law. Thank you.

▶ 1:08:00Chair Grassley: Thank you, Mr. dunlap. Mr. tung.

▶ 1:08:06Mr. Tung: Chairman grassley, ranking member durbin, it is an honor to appear before you and the committee today. I would like to begin by thanking president trump for his nomination of me to serve as a judge on the ninth circuit court of appeals. It is truly an honor of a lifetime. I am blessed to have my parents here in attendance. I am indebted to my mother and father in every way and I'm thankful to be with them here before this body.

▶ 1:08:36Mr. Tung: I think my brother, too, and my aunt and uncle for coming from santa monica to be here. I am very happy that my in-laws could make it from georgia, massachusetts, and virginia, including my mother-in-law, sister-in-law, brother-in-law, my wife's aunt, uncle, and cousins, and my wife's grandparents. I would like to acknowledge my wife, the love of my life and my best friend. Her support is indispensable and means everything to me.

▶ 1:09:07Mr. Tung: Our seven-month-old son sends his regrets for not being here today. We live in the greatest country on earth with a legal system that is the envy of the world. Our founding fathers and framers of our constitution pledged their lives and fortunes to bestow upon us a system of government that has proven to be the best guarantor of our liberty and the rule of law.

▶ 1:09:34Mr. Tung: Generation after generation, ordinary men and women of heroic virtue and love of country have stepped up to carry out the promise of our great republic, to prove to the world and their posterity that this grand american experiment of self-governance cannot only survive but flourish. We stand on their shoulders, and we owe it to them and ourselves to preserve what they have passed on to us.

▶ 1:10:01Mr. Tung: Justice antonin scalia and justice neil gorsuch, two of our country's greatest jurists have carried on that tradition. A student of their jurisprudence, I had the honor of serving as a clerk to both justices on the united states supreme court.

▶ 1:10:16Mr. Tung: From them I learned firsthand about what it means to be a judge, the importance of construing the constitution and the laws of this country faithfully without fear or favor, of putting aside one's own politics or subjective views when interpreting the law as passed by congress and as understood by the people.

▶ 1:10:38Mr. Tung: Ninth judge sandra ikuta, whose seat I have been nominated to fill, is also one of our finest jurists. If I am confirmed I will do my best to serve ably and honorably as they have. I welcome the committee's questions.

▶ 1:10:58Chair Grassley: Thank you. I will start with five minutes for everybody. I have been asked to be more firm on people staying within the five minutes. So, if you hear the gavel lightly, please observe it. We are trying to help each other out. Mr.

▶ 1:11:20Chair Grassley: Tung, you already spoke about the justices that you served under. You told a little about it, but I want to give you an opportunity for something you said you learned from that. What did you take away from those clerkships about the role of a judge in our constitutional system, and how have those lessons shaped the way you approach legal questions today?

▶ 1:11:50Mr. Tung: Thank you for the question, chairman grassley. Justices scalia and gorsuch were masters of the judicial craft, and I learned immensely from them about how to be a judge. The analytical rigor that they brought to their jurisprudence with something that I took away from the job. Their writing styles. Their ability to communicate and convey ideas crisply and consistently was something I learned from them while I was a clerk.

▶ 1:12:21Mr. Tung: There was one experience that I had when I clerked with justice scalia, and as a law clerk I tried to be too clever by half and included in a draft a latin phrase. Justice scalia read it and he told me, eric, I think there is a grammatical error in the latin phrase that you inserted. He walked across his chambers and pulled out from his drawer a magnifying glass. He got out a latin dictionary. The font was extremely tiny.

▶ 1:12:50Mr. Tung: He looked up the phrase and lo and behold there was a grammatical error. From that experience I learned how careful and diligent he was in his approach to the law, and I hope I can carry that with me as a judge on the ninth circuit if I so lucky as to be confirmed.

▶ 1:13:07Chair Grassley: Mr. dunlap, you were selected by the main supreme court -- maine supreme court. You served as committee chairman since 2023. What have you learned from your time advising the state of maine on appellate rules, and how will the experience to serve you if confirmed as a judge for the first circuit?

▶ 1:13:36Mr. Dunlap: I think one of the things we have discussed on a number of occasions is making sure the rules are understandable and accessible to individuals who may be proceeding for state courts. That is a significant consideration.

▶ 1:13:55Mr. Dunlap: I believe that reflects an important premise that the law should be available to all, and that the law should be impartially and fairly apply to every litigant who comes before the court. That is something I would seek to do should I be confirmed.

▶ 1:14:12Chair Grassley: Thank you. Back to Mr. tung. You have clerked at nearly every level of the legal system. And working with the bristol fellow at the solicitor's office, to prosecuting federal cases as an assistant U.S. attorney, and now you are in private law practice. How has that wide-ranging experience prepared you to take responsibilities of a federal appellate?

▶ 1:14:42Mr. Tung: Chairman grassley, my time in public practice and private practice has well-equipped me to serve as a judge on the ninth circuit. I have handled numerous appeals in federal and state courts of appeals. I have briefed and successfully prevailed in various cases on both the appellate levels and trial court levels in both federal and state courts.

▶ 1:15:08Mr. Tung: I have also assisted several trial teams in serving as an appellate strategist in helping preserve appellate issues and preparing witnesses. I have drafted several proposed jury instructions in those matters as well. I have appeared before judge is in detention hearings and motions to suppress. In my time at the office of the solicitor general I got to handle some of the most high-profile cases that have come before the U.S. supreme court.

▶ 1:15:39Mr. Tung: I assisted the assistants to the solicitor general and the U.S. solicitor general in crafting briefs, developing arguments, conducting legal research, and assisting them in their oral argument preparations.

▶ 1:15:52Chair Grassley: Mr. dunlap, I have 27 seconds left that doesn't account for your answer. You filed an amicus brief. I would like to quote that this is the highest judicial officers of each state, the primary focus was on federalism. What are your views on federalism?

▶ 1:16:19Mr. Dunlap: It was an honor to be able to represent the conference in that case. I think federalism is part of our structure of separation of powers. That is important to our system of government. That powers are not only separated horizontally but also vertically. That provides a second guarantee to the rights of the people.

▶ 1:16:46Chair Grassley: Thank you. Senator durbin.

▶ 1:16:50Sen. Durbin: Mr. dunlap, Mr. tung, and your families, welcome. We have five minutes to ask questions to determine whether or not you will receive a lifetime appointment to the second highest court in the united states of america. It's hardly enough time to reflect on anyone, measure what they believe, and make decisions about that information.

▶ 1:17:14Sen. Durbin: What I'm going to do is basically refer to the things you've done or said and ask you to give us an honest and candid response. Mr. tung, in a 2004 speech, you were responding to a speech by that then president of the national organization for women and said, "I believe in emphasizing family and what it means for a woman to be a good wife or partner." you added, "I believe in gender

▶ 1:17:46Sen. Durbin: Roles and that women are simply better than men at some things. When these radical feminists try to blur gender roles they undermine institutions like marriage, institutions which holds society together." it doesn't appear that your views, Mr. tung, have changed much over the years. Months ago in remarks with the federalist society, you defended originalism.

▶ 1:18:10Sen. Durbin: I quote, "whether there is a constitutional right to abortion, same-sex marriage, sought to me, pornography, transgender procedures, the answer for the originalist is simple, no." end of quote. This was not a youthful indiscretion. Your speech was given a few months ago.

▶ 1:18:35Sen. Durbin: You seem to be questioning landmark supreme court decisions like lawrence versus texas and overfill. Do you believe there is a constitutional right to marriage for same-sex couples?

▶ 1:18:48Mr. Tung: Ranking member durbin, the supreme court's decision in oberg or phil versus hodges has granted such a right and as a search does circuit judge if confirmed I would be bound by that precedent.

▶ 1:19:02Sen. Durbin: Do you still believe in gender roles?

▶ 1:19:04Mr. Tung: Those comments that you are referencing occurred over 20 years ago when I was an undergraduate in college. I was responding to a speaker who was invited to speak on gender-related issues and at the time I found their views to be extreme and that she portray the relationship between the sexes of male and female to be antagonistic and was blurring the gender roles.

▶ 1:19:28Mr. Tung: I was responding to that in those comments that you quoted because I believed at the time that the relationship between men and women were complementary and that the family should be strengthened.

▶ 1:19:38Sen. Durbin: What do you believe now?

▶ 1:19:41Mr. Tung: Senator, when it comes to live issues, I come under the canons of judicial ethics, cannot comment on that.

▶ 1:19:49Sen. Durbin: That is where we run into problems, basic values and positions. We know what he has written years ago. Ask what he believes today and he says he can't tell me the answer because he will possibly be on the bench. It is very difficult to really understand where you stand on the situation. Mr. dunlap, in march 2015 you submitted written testimony to the maine legislature in support of a bill that would have made it more difficult for minors to access abortion.

▶ 1:20:20Sen. Durbin: The bill sought to change maine 's law which does not require minors to obtain consent of a parent or guardian before having an abortion. Let me ask you, today, should a miner who was sexually assaulted or a victim of incest be forced to give birth if her parents did not consent to her having an abortion?

▶ 1:20:40Mr. Dunlap: The testimony that you are referencing would have brought maine's laws into line with states such as massachusetts and rhode island. It is also consistent with laws that the supreme court had upheld in planned parenthood versus casey. My own views are not relevant to the job that I would have should I be confirmed to the U.S. court of appeals for the first circuit.

▶ 1:21:08Mr. Dunlap: I would faithfully apply binding precedent as well as any laws that are required to be interpreted.

▶ 1:21:13Sen. Durbin: Are you saying that what you said in march of 2015 is the same position you hold today or a different one?

▶ 1:21:22Mr. Dunlap: My personal policy preference is, again, not relevant to the work I would do. What I would seek to do is fairly and impartially apply the law to every litigant who might come before me in a particular case or controversy.

▶ 1:21:35Sen. Durbin: What about the precedent in obergefell.

▶ 1:21:40Mr. Dunlap: That would be president if confirmed.

▶ 1:21:45Sen. Durbin: This is for Mr. tung. A gentleman by the name of mike davis posted on social media, "eric tung is a friend who will continue trump's historic and roads in the once left-wing ninth circuit." Mr. davis is the president of article three project and has played a key role in advising president trump on judicial nominations during the second term. Is he your friend?

▶ 1:22:12Mr. Tung: Mike davis is my friend.

▶ 1:22:15Sen. Durbin: Did you have conversations with him regarding your nomination before president trump announced it on july 2?

▶ 1:22:22Mr. Tung: Just simply that it happened, your honor, senator.

▶ 1:22:33Sen. Durbin: Mr. davis had made overtly racist remarks on several occasions like in october 2023 he wrote in a social media post, "the violent black underclass is a danger to america" " these monsters will kill."

▶ 1:22:47Mr. Tung: The views expressed by Mr. davis are not necessarily my views and vice versa.

▶ 1:22:53Chair Grassley: Senator lee.

▶ 1:22:56Sen. Lee: I appreciate you doing this, both of you. Impressive qualifications, and I very much look forward to work to secure your confirmations. In each of your cases you come with a strong set of recommendations and great professional experience to back that up.

▶ 1:23:18Sen. Lee: Both of you have, as far as I can tell, come with a built in understanding of the necessarily limited but indispensable role that our federal court system plays. There are a lot of misunderstandings about what the federal courts are. They are not there to adjudicate hot button social disputes. Not there to serve as representative bodies.

▶ 1:23:43Sen. Lee: They are there to decide discrete questions of law presented before them where two or more parties disagree as to the meaning of the law and where the law needs to be enforced or in one way or another applied. They are they are in a rear view mirror capacity to decide what the law is, what the law says, what it said, and what the original understanding of those words were based on the public meaning at the time of enactment of the statute or ratification. Mr. tung, let's start with the.

▶ 1:24:14Sen. Lee: As a federal judge, a federal appellate court judge, if confirmed, which I very much hope you are, you will be required to interpret the text of federal law across a broad range of topics, including provisions of the U.S. code and the constitution. How will you approach this task? What sort of judicial philosophy would you say guides your interpretive approach as a judge?

▶ 1:24:42Mr. Tung: I would start, as instructed by the supreme court, with the text of the statute that is being interpreted, or if we are interpreting a provision of the constitution. If the text does not yield a clear answer, I would move to the context or structure of the statutory provision, looking at the surrounding provisions that may shed light on the meaning of the provision under issue.

▶ 1:25:11Mr. Tung: Beyond the context, I would look to the history of what animated the passage or enactment of the law. Precedents that air on the meaning of the text would be consulted carefully as well and I would apply various statutory canons of interpretation if the issue before me is a statute.

▶ 1:25:34Sen. Lee: What role if any would legislative history play? Not the sequence by which things were added, but more directly committee reports and floor statements by individual members, on the senate floor or in committee?

▶ 1:25:46Mr. Tung: Legislative history is not law. It did not overcome the bicameralism requirements set forth in article one section seven of our constitution. I would come again, look to the text.

▶ 1:25:59Sen. Lee: Speaking of article one section seven, there are two fundamental elements that have to be satisfied in order to make a new federal law or modify an existing federal law. Bicameral passage followed by presentment. In your view, what are the dangers of ignoring that and to what degree you think we have gotten too fast and loose to the way we approach article one section seven?

▶ 1:26:28Mr. Tung: There is great danger in ignoring article one section seven. The founders designed the constitution in a way that would give accountability to the people, ultimately. Our powers under the constitution, the government's powers are derived from the people. Under article one of the constitution congress was divided into two houses requiring both the house and the senate to pass by a majority vote the bill that is being under consideration.

▶ 1:26:59Mr. Tung: The president also needs to agree & and provide his approval -- to agree & and provide his approval for the law to become U.S. code. I believe the bicameralism is extremely important to our system.

▶ 1:27:15Sen. Lee: The requirements of bicameralism of bicameral passage followed by presentment by the president were deemed not to be satisfied, and on that basis the legislative veto provision in that case and ultimately in other cases were deemed unconstitutional as violate of article one section seven.

▶ 1:27:40Sen. Lee: It is the case that you have during the legislative belt to make a new federal law or change an existing federal law. If it is the case that that wasn't satisfied in ins v china, where an application of provisional law was being changed or modified in that instance without the added step of presenting to the president, couldn't one also make the same

▶ 1:28:12Sen. Lee: Argument where the members of public by a provision of federal law, let's say federal regulation, where the obligations inherent in that affirmative command to the public are not evident on the face of the underlying statute obligating the promulgation of that? Couldn't that arguably be said to violate article one section seven as a legislative veto was in ins v chadha.

▶ 1:28:43Mr. Tung: They could pose an issue under article one section seven and the nondelegation doctrine derived from the vesting causes of our constitution. Article one says all legislative powers granted herein are vested in the legislative branch, invested in congress. Congress cannot delegate its lawmaking powers to an unelected federal agency to make laws. I believe it would pose a problem potentially under the bicameralism presentment provision and the nondelegation principle. >> thank you Mr. chairman.

▶ 1:29:19Mr. Tung: I would follow up on an issue and comments that were raised by ranking member durbin. I had the opportunity to look at Mr. tung's background and have a conversation via zoom and he has strong views on how other people's families should function and what women should be allowed and not allowed to do. A quote from Mr.

▶ 1:29:41Mr. Tung: Tung's previous rights, he criticized so-called welfare states for the c1 he has said he believes in emphasizing family and what it means for a woman to be a good wife and partner.

▶ 1:30:01Mr. Tung: He has said, and I find this reprehensible, that he "believes in gender roles and that women are simply better than men at some things when these radical feminists try to blur gender roles, they undermine institutions like marriage, institutions which hold society together." Mr.

▶ 1:30:27Mr. Tung: Tung, can you list for us the things that you believe are "women are sickly better at than men?"

▶ 1:30:34Mr. Tung: Senator, again, the comments you are referencing were captured by a news reporter over 20 years ago when I was an undergraduate in college. >> I understand that, that was 2006, not 1956. In the year 2006, I don't think the country was what you were suggesting here.

▶ 1:31:02Mr. Tung: Senator, my wife is sitting behind me and I can tell you that she is better at many things and not just some things than I am. She worked on the hill, she worked in the white house, and she worked for a fortune one company. >> so you still believe that women should stay home and not go out into the workplace?

▶ 1:31:22Mr. Tung: The suggestion that I think women should not be provided the same professional opportunities as men is inaccurate. >> so at what point in the last 20 years, not 50 or 60, did your mind change on this?

▶ 1:31:42Mr. Tung: Mr. tung: my views on policy matters and social logical matters that you are referencing our subject of wide debate, and for that reason as a nominee sitting here today before the committee I cannot -- >> there are some other issues I want to get to. First of all, I think for any person to come into a courtroom, they deserve to know that they are going to be given a fair trial, fair consideration in a proceeding.

▶ 1:32:08Mr. Tung: So given your very public past comments -- not long ago history, relatively recent history, how should a woman be entering into your courtroom thinking they are going to get a fair shake if you won't even tell us when and how your mind was changed on this? You've now referenced twice this concerned about life issues. So what item has written its way through the judiciary that may well appear on the ninth circuit for you to consider and rule on?

▶ 1:32:35Mr. Tung: Every litigant who would come before my court should I be so lucky to be confirmed as a judge would be treated -- men or woman -- with quality, dignity and respect.

▶ 1:32:46Sen. Welch: That's where we are asking this question but what are the life issues that are answering that would keep you from answering our questions?

▶ 1:32:53Mr. Tung: Matters of policy -- >> what is the issue that is keeping you from answering senator durbin's question and my question?

▶ 1:33:02Mr. Tung: I apologize, I'm not understanding the question.

▶ 1:33:04Sen. Welch: You are hiding behind a "live issue concern" for not answering senator durbin or my questions.

▶ 1:33:11Mr. Tung: The life issues you are referencing are based on --

▶ 1:33:16Sen. Welch: I want to know what you are referencing.

▶ 1:33:20Mr. Tung: Senator, the live issue that I'm referencing are matters of policy and sociology that impinge on gender related issues. >> so anything that could be a conversational topic anywhere in the country at any time would keep you from answering our specific questions? Let me move onto one more item, then. Because you had better use on american workers.

▶ 1:33:45Mr. Tung: My colleague senator schiff raised an incident, a labor day protest that you were one of the leaders of under the committee for freedom. The protest in question,

▶ 1:34:00Protesters Had A Message: End mandatory maternity leave, it hurts women." others said workers of the world, get back to work. He specifically wanted to tell the yellow campus that unionized labor hurts consumers. Is this you holding a sign that know? >> senator, that is me from over 20 years ago when I was in college exercising my first amendment rights.

▶ 1:34:29Sen. Welch: And I demand your first amendment rights but I also defend labor rights and labor protections in this country. So just as I asked with women a few minutes ago, if a labor issue is before you, how can working men and women come into your courtroom and feel like they are going to get a fair shake given your clearly strong views not in the long-ago past, but the relatively recent past?

▶ 1:34:54Mr. Tung: When one puts on the road, the person's role changes qualitatively. And I can assure this committee and I commit to this committee that if I were fortunate to be confirmed as a judge, I would evaluate each argument advanced by the parties respectfully, carefully, and --

▶ 1:35:15Sen. Welch: Do you recount this in your other comments that I've cited here today?

▶ 1:35:21Mr. Tung: Again, live issues on policy I cannot comment. Mr. tung, and thank you both for being here, I'd like to give you an opportunity to talk about your wife again. I heard what you said about her. I know what it means to be in a partnership, and I would hope that if my husband was asked he would have a long list of things that I am better at than him. But will you tell me a little that about your wife and her accomplishments and I would love to hear it.

▶ 1:35:49Mr. Tung: My wife is the most beautiful woman in the world. She is one of the most professionally accomplished women I've ever met. As I mentioned to senator padilla, she worked on the hill, she worked in the white house or president trump during his first term -- >> which for all of you, the staff around here is where things really get done, so thank you.

▶ 1:36:10Mr. Tung: Anne schubert for a fortune 1 company in the executive speech role. >> sounds like an accomplished woman throughout her life.

▶ 1:36:20Mr. Tung: I could not be prouder of my wife. >> well I am certainly proud to hear you talk about her as well, thank you. I want to talk to both of you about something you previously expressed and that is originalist and texture list interpretation. I know that this is an ongoing debate. Is it the same thing, different, distinct, how does this work?

▶ 1:36:51Mr. Tung: I'd love to get your thoughts on that methodology and your views on kind of how those terms should be defined and what role they will play for you on how you approach things before you on the bench. So we will let you go ahead first and then we will go to Mr. tung.

▶ 1:37:10Mr. Dunlap: I think the best understood originalism and textualism has two sides of the same coin. As I understand it, it requires a jurist to look into the original public meaning of the text, whether it be a constitutional provision or a statute, and so you would seek to apply a law in the manner that a reasonable person would have understood it at the time that it was adopted when you view it in full context.

▶ 1:37:42Mr. Dunlap: And so that is the approach that I would seek to bring to the bench, should I be confirmed. In order to keep my decisions firmly grounded in the law. >> so real quick, obviously senator lee asked about this, give me your thoughts on that.

▶ 1:38:02Mr. Dunlap: There are of course as senator lee's question suggested, different types of legislative history. Some is much more objective and useful to a court, but the question as I recall was directed to subjective statements of individual legislators. >> you specifically mention floor speeches, etc.

▶ 1:38:27Mr. Dunlap: That to me is not particularly persuasive because it did not go through presented requirements and goes more to a subject of intent rather than object of meaning. >> so Mr. tung, steve support originalist texture list interpretation and if so, if you could give me that quick definition and then how you arrive at that conclusion, that would be the most appropriate methodology if you believe that.

▶ 1:38:55Mr. Tung: I do subscribe to originalism and textualism as Mr. dunlap's articular restated. Original of them is a method of interpretation of the constitution that looks to the original public meaning of the specific provision at issue. Textualism addresses the method of interpretation with respect to statutes. But both methods are aimed at the same thing. What did the words mean overtired - at the time they were enacted or ratified?

▶ 1:39:26Mr. Tung: Veering away from that a few turns judges and the policymakers. No longer are they grounded and anchored in the text, but rather they would be indulging in their own personal policy preferences and I don't think that is the role. >> your personal preferences aren't what you're going take faith in the bench, so thank you. I strongly believe the judiciary has a vital role in protecting religious liberty and freedom.

▶ 1:39:51Mr. Tung: -heartened by the supreme court's religious liberty jurisprudence in recent years and would like your thoughts regarding the role of the judiciary in defending religious freedoms for all americans. >> senator, the supreme court plays a very important role in defending religious liberties. The first amendment of our constitution says it right there, congress shall make no law respecting an establishment of religion or having the free exercise thereof.

▶ 1:40:20Mr. Tung: The supreme court has faithfully interpreted that provision. >> thank you.

▶ 1:40:26Mr. Dunlap: I would agree, the courts have the responsibility to apply each of the amendments and the bill of rights. The first amendment to exercise religion has been observed to be the first freedoms. Those are binding upon the court and should be equally applied for all americans.

▶ 1:40:47Mr. Dunlap: >> well thank you both for your willingness to serve, who are incredibly accomplished and I look forward to getting you on the bench. >> Mr. tom, you just said you are originalist and texture list. Let me ask you, no person holding public office shall accept any present of any kind from any king, prince, or foreign state.

▶ 1:41:13Mr. Dunlap: Do you believe the language in the emoluments clause that says any president of any kind means any present of any kind whatever?

▶ 1:41:20Mr. Tung: Senator, you are quoting the text of the emoluments clause and I cannot dispute with the text of the emoluments clause. >> so it would apply to any present including an airplane.

▶ 1:41:33Mr. Tung: It would apply to the president. I believe, senator. >> and I take it as an originalist, you would except that the founders would have never subscribed to the idea that a president in their time could have accepted a multi-hundred billion dollars gift from a foreign state.

▶ 1:41:53Mr. Tung: Senator, the premise of your question implicates live issues in the public and pursuant to the canons of judicial ethics -- >> let me just ask you, with the founders have believe that if a president received 100 camels from a foreign state that that was an emoluments?

▶ 1:42:13Mr. Tung: Senator, it's difficult to answer that question -- >> visit, though? Isn't it pretty simple, you got the clear language of the constitution.

▶ 1:42:24Mr. Tung: One has to look at the language but also the history surrounding the emoluments clause in order to discern. >> I am looking at the history. Let me go on to another question. Do you believe that the bridge fell versus hodges decision from the constitutional right to same-sex marriage, with that wrongly decided?

▶ 1:42:46Mr. Tung: A virgin felt v. Hodges is binding precedent -- >> I'm aware of that. Do you believe it was wrongly decided?

▶ 1:42:54Mr. Tung: As a circuit judge I would be bound -- >> that's not my question. Had you been on the court of appeals, would you have decided the case that way?

▶ 1:43:04Mr. Tung: Senator, prior to a burger felt v. Hodges there was a precedent and I would have followed that case. >> would you have reached the same conclusion?

▶ 1:43:18Mr. Tung: Senator, I would have followed binding precedent -- >> you're not answering my question. When you have reached the same conclusion?

▶ 1:43:26Mr. Tung: Senator, the conclusions that the two precedents reached were potentially in conflict and I would have to follow the precedent -- >> you can't tell us at this point whether you would have reached the same conclusion as the supreme court in a burger so let me ask you about the decision in lawrence for the constitutional right to be intimate among same-sex couples, you believe that was wrongly decided?

▶ 1:43:52Mr. Tung: Lawrence v. Texas is a binding precedent -- >> I'm aware of that. And asking whether you believe that was rightly or wrongly decided.

▶ 1:44:01Mr. Tung: You're asking my personal views. >> I'm asking about your legal views. Let me ask you about another case. Do you believe loving vs. Virginia which confirmed interracial couple's right to marry, without wrongly decided?

▶ 1:44:17Mr. Tung: Senator, my wife and I are interracial couple and so that case were wrongly decided I would be in big trouble. >> so you do agree with the reasoning of that case and you're going to say that, I appreciate that. But you're unwilling to save agree that lawrence was correctly decided. Why is that?

▶ 1:44:36Mr. Tung: Those decisions are binding precedent of the supreme court -- >> I'm aware of that, so is loving and you're going to tell us who believe it was correctly decided but you're not willing to say any other decisions were correctly decided. That seems less originalist and more situational.

▶ 1:44:56Mr. Tung: Let me ask you this that your role in the brief, this was a case involving the discredited independent state legislator theory, which would allow state legislature in the absence of the governor's signature to effectively overturn an election. Do you believe that the supreme court wrongly decided that when it rejected your view?

▶ 1:45:19Mr. Tung: It is binding precedent of the supreme court -- >> I get that but you are still not answering my questions let me ask you a different way. If the state legislature decided after an election to pass a bill, in the absence of the governor signing it, to throw out absentee ballots that were mailed prior to the election but arrive after the election, would it be your view that a state supreme court or federal court

▶ 1:45:50Mr. Tung: Would have to allow the legislature to overturn the election, would have the power to correct that effort to overturn a free and fair election?

▶ 1:45:56Mr. Tung: Senator, state courts can review what the state legislatures have passed as a matter of their constitutional -- >> I'm aware of that. My concern though is that your unwillingness to embrace the reasoning of these decisions means that where there is room, and there is room in all these decisions, for you as a court of appeals judge to narrow these decisions, it sounds like he

▶ 1:46:27Mr. Tung: Will take that opportunity to narrow those rights. In the case of moore which I agree is one of the more important case for democracy in a century, narrowing that decision means empowering state legislatures to overturn election results and I cannot imagine a more dangerous idea on the bench. I yield back. >> congratulations, gentlemen. Mr.

▶ 1:46:52Mr. Tung: Tung, you were asked about some of the things you said back in college. And one of the things that you were asked about was a statement you made in 2004. I believe that women are simply better than men at some things.

▶ 1:47:23Mr. Tung: Did you say that?

▶ 1:47:23Mr. Tung: I did say that, senator. >> you said that you believe that women are better at some things, right?

▶ 1:47:33Mr. Tung: That's right, senator. >> you didn't say women are worse at some things, did you?

▶ 1:47:39Mr. Tung: I did not say that, senator. >> I'm just trying to understand. How is that denigrating women?

▶ 1:47:49Mr. Tung: It was not denigrating women and I did not intend it to be so, senator. >> you said they are better at some things. If you said they were worse at some things, you would be denigrating women, wouldn't you?

▶ 1:48:03Mr. Tung: I would, senator. >> I don't know if that's asked of this, but you didn't say they were. They could do things.

▶ 1:48:14Mr. Tung: That's right, senator. >> does government have free speech rights?

▶ 1:48:22Mr. Tung: Government does have free speech rights. >> how so? The first amendment doesn't mention government. Except to the extent that government is for us to have protection against government restricting our speech. How can government have free speech?

▶ 1:48:42Mr. Tung: You are right to the extent that the first amendment refers to congress, congress shall not make any law abridging the freedom of speech or of the press, but there is a government speech doctrine that allows the government to convey a political message it wishes to, and the government is not committed to a policy of neutrality at all times. >> have you ever been to boston?

▶ 1:49:09Mr. Tung: I have. >> you seen the boston city hall?

▶ 1:49:13Mr. Tung: I believe I have. >> there is a plaza in front and there are some flagpoles. In boston, when different groups are having protests or demonstrations or rallies on the plastic, --pl -- plaza, allows those groups to fly their flag. Someone wanted to fly a christian flag in the city of boston, said no.

▶ 1:49:46Mr. Tung: And the supreme court in the city of boston said that's our choice, that's government speech. So how come the supreme court said that they had to fly the christian flag if government has free speech?

▶ 1:50:01Mr. Tung: Senator, if the government opens up its plaza to all comers, so to speak, then it's restricted under the public forum doctrine in terms of what viewpoints it would decide to favor. >> that's not necessarily so, is it? Someone in texas lets people by specialty license plates.

▶ 1:50:34Mr. Tung: I love little warm puppies and stuff like that, you can buy a specialty license plate. And somebody wanted to have a specialty license plate that pictured the confederate flag. And texas said no. And the supreme court said texas doesn't have to do it, government speech. So isn't that inconsistent with what you just said?

▶ 1:51:03Mr. Tung: Senator, it's not inconsistent. This area of law is extremely complicated. When something qualifies as a public forum such that viewpoint discrimination might not be allowed vs.

▶ 1:51:17Mr. Tung: A public benefit and public conditions that the government can rightly impose on others, on its recipients, that shades into government speech in which case the government would have more control over what kind of speech gets projected into the public square. But there is potential for tension between the two doctrines that you raise. >> the chairman is going to gavel me to shut up in a second.

▶ 1:51:48Mr. Tung: I just want to understand, back at dale you said there are some things that women are better at, right? Not worse.

▶ 1:51:54Mr. Tung: That's right. >> better.

▶ 1:51:56Mr. Tung: Ok, thank you.

▶ 1:51:58Chair Grassley: Senator whitehouse.

▶ 1:52:04Senator Whitehouse: Mr. dunlap, it appears that you were active in maine against a ballot initiative legalizing same-sex marriage. Is that true?

▶ 1:52:21Mr. Dunlap: I believe you are referencing simply an op-ed that I published that expressed at the time my disagreement with the theft of political science.

▶ 1:52:35Sen. Dunlap: If you are not active against that ballot initiative, why would you be engaged about political signs?

▶ 1:52:44Mr. Dunlap: I lived in the area in which I observed that political signs were being stolen and in my view, the first amendment --

▶ 1:52:53Sen. Dunlap: Your testimony to us is that that was only about political signs, that you did not take an active part in the anti-same-sex marriage ballot initiative?

▶ 1:53:07Mr. Dunlap: I did not play a part in that ballot initiative, no.

▶ 1:53:10Sen. Dunlap: Say again?

▶ 1:53:12Mr. Dunlap: I did not take part in a ballot initiative. When you say you did not take part in it, what exactly does that mean?

▶ 1:53:24Mr. Dunlap: I had no active role in any campaign related to that.

▶ 1:53:28Sen. Whitehouse: Did you say that gay marriage would affect our rights under the first amendment, freedom of speech and free exercise of religion?

▶ 1:53:41Mr. Dunlap: The position that I was taking there with that in the context of that in the context of an ongoing political campaign, that there were theft of political science and I expressed my disapproval of that. Political speech is central to the first amendment.

▶ 1:53:56Sen. Whitehouse: But you also said that allowing gay marriage would affect our rights under the first amendment freedom of speech and free exercise of religion. So you at least took that public position, did you not?

▶ 1:54:07Mr. Dunlap: I did.

▶ 1:54:08Sen. Whitehouse: Which is a little bit different than taking no public position. You also supported a bill entitled and asked to allow a wrongful death cause of action for the death of an unborn child. Could that statute be applied to a woman seeking an abortion or to a doctor providing an abortion?

▶ 1:54:32Mr. Dunlap: So that proposal would have brought maine's law into line with that of all other new england states. It does not apply in the context of abortion. It would have given grieving parents the opportunity to recover for death.

▶ 1:54:52Sen. Whitehouse: But not one related to the woman obtaining medical care.

▶ 1:54:57Mr. Dunlap: Again, that statute exists throughout new england except for the state of maine and it has not affected abortion rights in those states.

▶ 1:55:05Sen. Whitehouse: When you were in law school, you were an intern for a nonprofit's purpose is to oppose women's reproductive rights and to oppose marriage equality and to oppose the right of lgbtq couples to adopt children. Did you intern for that organization because you supported or share those views?

▶ 1:55:35Mr. Dunlap: I was a blackstone fellow, I participated in a program that offered training in first amendment law which draws from a wide variety of law schools across the country and offered the opportunity as well for an internship. I spent my internship that summer as a research assistant for a professor garnet --

▶ 1:55:58Sen. Whitehouse: Did you have choices in what group you were an intern with?

▶ 1:56:02Mr. Dunlap: I applied for that job, yes.

▶ 1:56:06Sen. Whitehouse: You apply for that job, for that group that has as its purpose to oppose women's reproductive rights, to oppose marriage equality and to oppose the rights of lgbtq couples to adopt children, correct?

▶ 1:56:19Mr. Dunlap: I applied for the blackstone fellowship which is run by adf which is a highly successful law firm.

▶ 1:56:27Sen. Whitehouse: And you chose to do that internship at adf, correct? You weren't forced, you weren't driven, this was your choice to do that. You picked that internship and that organization.

▶ 1:56:40Mr. Dunlap: That's correct.

▶ 1:56:42Sen. Whitehouse: And yet you say that you have no view on the same-sex marriage question in maine even though you devoted yourself in law school to interning for an organization that opposes same-sex marriage.

▶ 1:56:58Mr. Dunlap: I don't believe I ever testified that I did not have a view. I said I did not participate in the campaign.

▶ 1:57:06Sen. Whitehouse: Well, your version of participate seems a little squirelly to me when you are actually writing up ads relate -- op-eds related to that question. I will leave it there. My time has expired. But I hope that we will get real answers, Mr. chairman, to our questions for the record.

▶ 1:57:34Sen. Whitehouse: I've been told that republican members are telling witnesses that they actually don't need to answer questions for the record, and we've seen sham answers to questions for the record. This committee is spiraling away from being the least bit responsible with respect to our oversight, and I would hate to think that you have fa -- qfr's no longer matter in the judiciary of the united states senate.

▶ 1:58:02Sen. Whitehouse: >> congratulations to both of you on your nominations. Mr. dunlap, I'm pleased to support your nomination. Mr. tung, same. I want to ask why you neglected to talk about one of the most important parts of your background which is the fact you were born in houston, texas. Is that correct?

▶ 1:58:23Mr. Tung: Senator, I was not born in houston, texas but my brother did attend university.

▶ 1:58:30Sen. Cornyn: Tell me a little bit about your family. Your parents are here. What did you learn from your parents growing up that made you the man you are today?

▶ 1:58:41Mr. Tung: I learned everything from my parents. My parents immigrated from taiwan and their parents, my grandparents, immigrated from communist china. My dad is an entrepreneur in the construction business. He laid tile and constructed kitchen cabinets for houses in our community and for other businesses.

▶ 1:59:09Mr. Tung: My dad got his mba at the university of dallas when he was an exchange student in the U.S. my mother, my dear mother, she graduated with a masters in education at usc in california and she raised two boys, my brother and myself. I couldn't be prouder of my parents and I hope I'm making them proud today.

▶ 1:59:40Sen. Cornyn: While I was a little stunned by some of the initial comments by two of my colleagues from california. It sounds like they were painting you as some sort of radical. Do you consider yourself to be erratically?

▶ 2:00:00Mr. Tung: I do not.

▶ 2:00:02Sen. Cornyn: You've had a pretty impressive background in terms of your education, university of chicago law school, yale university. By the way, you spent a year abroad studying chinese?

▶ 2:00:17Mr. Tung: I did, it was an exchange program and they studied chinese language.

▶ 2:00:22Sen. Cornyn: Why did you want to do that?

▶ 2:00:24Mr. Tung: At the time I wanted to enter the foreign service and have a korean, see so I thought mandarin could be useful in the future but while I was there I changed my mind and set to apply for law school.

▶ 2:00:41Sen. Cornyn: You clerked for justice scalia and justice gorsuch, do you consider them role models?

▶ 2:00:48Mr. Tung: I do.

▶ 2:00:50Sen. Cornyn: Can you talk about original of the, -- originalism, I believe both of them embraced originalism. Could you just explain what originalism is and why you support it?

▶ 2:01:07Mr. Tung: Originalism is the method of interpreting the constitution that looks to the original public meaning of the text when it was ratified. It gives the power to the people and not to unelected judges who have life tenure. It prevents judges, ideally, from indulging in their personal policy preferences and it requires them to stick to the text and history in the original meaning of the constitution when it was ratified.

▶ 2:01:37Sen. Cornyn: You've been asked about same-sex marriage to gender equality, you name it. Is that your job as a judge, to basically make those sort of policy judgments or try to reconcile or find consensus among divergent views among americans?

▶ 2:01:59Mr. Tung: My job if I was so lucky to be confirmed as a judge would not be as a policymaker.

▶ 2:02:09Sen. Cornyn: And I can tell you the probably all 100 members of the senate would be grateful for the statute of limitations on down things they said when they were in college. But thank you for clarifying your views.

▶ 2:02:28Sen. Cornyn: I'm kind of stunned myself that colleagues would want to go back to comments you made in college and somehow impugn your record or your ability to serve as a circuit court judge based on some comments you made back then. But in the short time I have remaining, I'm intrigued by one last thing on your resume. You are a member of the international defensive pistol association. What the heck is that?

▶ 2:02:58Mr. Tung: It's a competitive shooting organization, senator, that seeks to promote self-defense knowledge and self-defense training.

▶ 2:03:06Sen. Cornyn: Thank you, my time is up.

▶ 2:03:08Chair Grassley: Senator marano.

▶ 2:03:12Senator Marano: I asked the follow questions among nominees to ensure the fitness of the nominees to serve, so I will start with Mr. dunlap, Mr. tung. Since you became a legal adult have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?

▶ 2:03:33Mr. Dunlap: Nope.

▶ 2:03:34Mr. Tung: No. >> have you ever faced discipline related to this kind of conduct?

▶ 2:03:40Mr. Dunlap: No.

▶ 2:03:41Mr. Tung: No. >> can't hear you.

▶ 2:03:46Mr. Tung: No, senator.

▶ 2:03:49Mr. Tung: No, senator. Mr. tung, you've been asked questions about originalism and you an originalist, correct? You've written about it, the importance of originalism.

▶ 2:04:01Mr. Tung: I subscribe to originalism but I would be bound by supreme court precedent.

▶ 2:04:09Sen. Marano: Sometimes there is no supreme court precedent. So let me just mention that pretty recently this past march, you wrote "in my view, there is no real rival to originalism when it comes to the proper method of interpretation." you noted at the same time that " originalism recognizes that there may be hard cases, most cases including the high-profile

▶ 2:04:40Sen. Marano: Ones are not hard. Whether there is a constitutional right to abortion, same-sex marriage, sodomy, pornography, the answer no." do you think that all the members of the U.S. supreme court share your perspective and your view on originalism? Yes or no?

▶ 2:05:01Mr. Tung: Senator, I understand the justices on the supreme court hold different views on the method of interpreting the constitution.

▶ 2:05:08Sen. Marano: So not all of them hold your view that originalism is no real rival to how things should be interpreted. So Mr. tung, as a lawyer and prospective judge, do you believe that court orders must be followed by parties to a court unless and until they are ordered by or overturned by an appellate court? Yes or no, should court orders be followed?

▶ 2:05:37Mr. Tung: As a general matter, court orders should be followed by the parties bound to it.

▶ 2:05:41Sen. Marano: I don't know what the general matter is, I would think that court orders should be followed. So do you believe that someone who contemplates disregarding court orders is qualified to get a lifetime job as a judge? Yes or no?

▶ 2:05:59Mr. Tung: You are asking a question that implicates a current issue and under the canons of judicial conduct I should not and cannot answer.

▶ 2:06:06Sen. Marano: You know what, there should be judicial conduct that says all judges should believe that judicial orders should be followed. You know that this is a matter of concern to what a number of us on this panel. So you were asked various questions about your views on the role of women and that women can do certain things better than men and a take it that you believe men can do certain things better than women.

▶ 2:06:34Sen. Marano: And the fact that you may have held these views 20 years ago doesn't mean that you no longer hold those views because I held certain views when I was in college such as public service is a good thing, I still hold that view. And yet when you were asked whether you still believe in these gender roles, which are very limiting, frankly, in my view, you said that "the canons of ethics private you from answering." I mean, this is going to be a live question, should you become a judge of the ninth circuit, do

▶ 2:07:04Sen. Marano: You actually think that there could be a live question on whether or not a woman's gender role is going to come before you?

▶ 2:07:14Mr. Tung: Senator, questions relating to, for instance, the 14th amendment's equal protection clause could come before me and for that reason I consider that a live issue and I wouldn't be able to answer.

▶ 2:07:25Sen. Marano: You know what, we didn't talk about the 14th amendment which by the way as far as I'm concerned is supposed to provide equal protection for everyone regardless of race, religion, etc. But frankly, what is happening with the 14th amendment is that is being weaponized, in my view.

▶ 2:07:47Sen. Marano: That this is a supreme court majority that is not exactly holding the 14th amend to provide equal protection for everyone. I just have one more -- you talked about what you call the radical left. What do you mean by radical left, people on the radical left say things that are not truthful. What do you mean by the radical left?

▶ 2:08:17Mr. Tung: Senator, I'm unsure from where you are pulling that phrase. I don't have the context to answer.

▶ 2:08:29Sen. Marano: You do remember talking about what you considered to be radical left. Mr. chairman, I hope that I can submit some questions for the record and it is disturbing to me that some of her nominees think that they don't have to respond. I hope that were not among those, because they will have some questions for the record. Mr. tung?

▶ 2:08:56Mr. Tung: Appreciate it, senator.

▶ 2:09:04Chair Grassley: [inaudible] >> congratulations and know that you all are pleased to be here, and I congratulate you on your nominations and do indeed look forward to your confirmations. Mr.

▶ 2:09:33Chair Grassley: Dunlap, I want to come to you. I know that you've been a litigator and an appellate litigator. So talk to me about the experience you bring in that capacity and now that you are going to be on the court, and is there a specific case that you think that the entire process

▶ 2:10:06Chair Grassley: Really informs the way you would approach the bench?

▶ 2:10:09Mr. Dunlap: I think one similarity that would transfer from being an appellate advocate to being a judge should I be confirmed is the necessity of carefully analyzing the law and being able to distill it in a thoughtful and understandable way.

▶ 2:10:34Mr. Dunlap: I think a judge has the obligation to write in a way that fully explains the judge's reasoning to the parties that appear before the court, and would provide useful guidance to future parties that may be affected by similar cases. I think that you have to have that same skill set when you are an appellate litigator as you would if you were on the bench. >> Mr.

▶ 2:11:03Mr. Dunlap: Tung, I don't think you've talked about this yet, a townhall op-ed that you did in 2019. And it was responding to what you called, and I'm using your term, "a misguided hit piece" by a law professor who criticized justices scalia and gorsuch and asserted that originalist judges make stuff up, too.

▶ 2:11:34Mr. Dunlap: So you took issue with that and you made the case for originalism. In the framework, and that approach for constitutional interpretation. So elaborate on the points that you made in that townhall op-ed, and you talk a little bit about this today, why you think originalism is the correct approach for constitutional interpretation.

▶ 2:12:03Mr. Tung: Thank you, senator. Originalism anchors judges who are not elected and who are not politically accountable, anchors them to the text of the constitution. And so it forces them to show restraint and to not exercise their will, but to exercise judgment and the words of hamilton in federalist number 78.

▶ 2:12:30Mr. Tung: In that op-ed you had mentioned, senator, the case that was addressed that was used as an example of originalists making stuff up and dressed the fourth amendment and what constitutes a search under the fourth amendment.

▶ 2:12:47Mr. Tung: Justice scalia wrote the opinion holding that using a heat thermal imager of a home that would allow the police to surveilled the interior of the home, that that constituted a search. Despite a fact that thermal images were in existence at the time of the ratification. The fourth amendment would still have application. The meaning of the search doesn't change over time.

▶ 2:13:14Mr. Tung: And so in that instance, I don't believe that justice scalia was making stuff up, as the author of the article I was responding to was suggesting. >> ok. You also said in that op-ed when judges stray from text and original meaning, we end up with topsy-turvy results. So expand on that.

▶ 2:13:34Mr. Tung: Yes, senator. When one strays from the text and veers into the fourth and then, the reasonable expectation of privacy, when that becomes the controlling test, what happens is searches that were searches under the original meaning of work amendment no longer become searches.

▶ 2:14:01Mr. Tung: So when helicopters search other people's property, that constitutes a search. That does not constitute a search anymore because under the cats view, there is no reasonable expectation of privacy. It's no longer moored to the text of the constitution. >> thank you, Mr. chairman.

▶ 2:14:20Mr. Dunlap: Thank you >> Mr. chairman and 12 nominees today, it's obviously a time in america where we should recognize people who want to step forward and serve in the public interest, do so at often great sacrifice not to themselves, but to the families so I just want to recognize this is a very important part of our american tradition, people who step forward for these offices should be commended for doing that.

▶ 2:14:49Mr. Dunlap: I want to jump right back in to where my colleague was asking you about mike davis, if you don't mind me digging in a little more here. If that's one of my videos, keep it playing but if it's not me, you should cut it off right now. Do you agree that with Mr. davis, that you guys were friends, correct?

▶ 2:15:11Mr. Tung: We are friends, senator. >> Mr. davis recommended you, or did Mr. davis recommended you or otherwise mention you to anyone in the trump administration for this traditional vacancy?

▶ 2:15:25Mr. Tung: I believe he might have, senator. >> thank you sir. Do you know exactly what did he say or to whom he made that recommendation?

▶ 2:15:34Mr. Tung: I do not know that, senator. >> thank you sir. Did Mr. davis or anyone else associated with the article three project advise for prepare you for any aspect of this nomination?

▶ 2:15:48Mr. Tung: No, senator. >> ok. And Mr. davis is the founder of the article three project. According to their website, he found the project after he helped trump wind the gorsuch and cavanaugh nominations. Mr. davis said that we saw then how relentless and evil to many of today's democrats at the comms.

▶ 2:16:15Mr. Tung: They are marxists who hate america. They believe in censorship. They have politicized and weaponized our justice system. Do you agree with Mr. davis' statements that today's democrats are relentless and evil?

▶ 2:16:31Mr. Tung: Mr. davis' views as expressed there are not necessarily the views of mine. >> I didn't ask necessarily. I just ask do you think today's democrats are relentless and evil?

▶ 2:16:43Mr. Tung: You asking me to comment on a political question and as a nominee to a judicial position, I cannot and should not speculate or comment on that. >> I spend a lot of time working to try to affirm this fact that we are one nation under god, that the lines that divide us are nowhere near as strong as the ties that bind us. I'm proud of my relationships with my friends on the other side of the aisle. I think it hurts Mr.

▶ 2:17:12Mr. Tung: Kennedy when I say that he and I are friends. I can say unequivocally republicans are not people, you're telling me you will not say on the record here that democrats are not people?

▶ 2:17:27Mr. Tung: You are asking a personal and policy laden question that I cannot answer. >> put yourself in a position of a person coming before you who is watching this right now and you're supposed to be a judge who is impartial and you're telling me that for this nomination, I have a constitutional obligation to advise and consent, that I should be in any way hopeful that a judge would be impartial

▶ 2:17:58Mr. Tung: If he cannot say that americans written large because of their freedom of party association, that he can't say that whether you are a democrat, republican or independent, you can't say in this hearing that you don't think that that makes a person evil?

▶ 2:18:12Mr. Tung: Senator, I can commit to this committee that whoever comes before my court, should I be fortunate enough to be confirmed, will be treated with respect -- >> and not a presumption that they are evil.

▶ 2:18:25Mr. Tung: Whoever they are, republican, democrat or independent who steps into my court, they will be accorded full consideration of their argument. >> I don't know what you are afraid of, I really don't.

▶ 2:18:41Mr. Tung: Where have we gotten to the point in american history that someone up for a position such as yours, and I've seen this courageously from people on both sides of the aisle who understand the judiciary should be above partisanship, who understands the judiciary in many ways should be a sober assessor of fact, it is deeply disappointing to me that you cannot tell the american public right now that the person that

▶ 2:19:12Mr. Tung: You are affiliated with, with their heated language, with their casting in broad brushes, doubling down on the toxins that are making life your dangerous and frankly, I've talked to federal judges who tell me about having to protect themselves.

▶ 2:19:28Mr. Tung: We had a horrific incident in our state were a federal judge that was targeted, there has been shot, their son killed, in this time in america to render an answer of I can't answer that to me is additive's to the toxins that are in our society that are pitting people against each other. You are up for a position in the highest court in the land and you can't simply say I don't think democrats are evil. Is that we you're telling me?

▶ 2:19:58Mr. Tung: I wish I were up for a position in the highest court of the land but I'm up for the ninth circuit court of appeals. >> to americans, the federal court on the highest court in the land so I appreciate your correction and your diligence and dutiful attention to detail but right now, I am gravely disappointed that you can't simply say what I can say is that my colleagues are not people, that democrats are not people, republicans are not people and this kind of rhetoric is damaging. I am deeply disappointed, sir.

▶ 2:20:32Mr. Tung: >> I'm the chairman, now. We've got a new sheriff and I'm going to call in senator schmitt. Before I do, I'm going to give you another chance. I want you to think real hard. I looked into your record. I think you are a good man. Do you think -- you really don't think that somebody is evil just because of their party they are in, do you?

▶ 2:20:58Mr. Tung: I don't think that, senator. >> god bless, that's the answer I was looking for it I don't understand why you wouldn't answer me. Maybe because I'm a demographic dear god that is the easiest question ever asked today and thank you chairman kennedy for eliciting what is the response we should get from any american who is up for a federal position. >> I don't think senator booker was trying to trick you. You don't think republicans are evil, do you?

▶ 2:21:22Mr. Tung: I do not. >> and you don't think independents, our people. And you don't think democrats are evil?

▶ 2:21:30Mr. Tung: I do not. >> good. Senator schmitt? >> I appreciate your restraint on that. I wish more judges would show that kind of restraint on weighing in on political questions. Judge post birds before he had any of these run the decided cases opined that president trump wouldn't if I buy court orders, which is not true and I'm glad the department of justice has referred him for disciplinary action.

▶ 2:22:01Mr. Tung: Because judges have no role in weighing in on political questions or making political statements. That is not their job and I would argue that the more they do that, it debases the respect that the american people have for our courts if they view them as politicians so I appreciate the sentiment. I'm glad we don't think everybody is evil, but I appreciate the restraints that you are trying to exhibit in this hearing and they wish again that he would have exhibited that restraint because not only is he a terrible liberal activist judge, he's also lost respect and should be disciplined.

▶ 2:22:34Mr. Tung: I also just want to take a moment to talk about -- and by the way, the article the project, I just want to say something, is doing a very important job of hitting back against a lot of the smears that have come judges ways just because they happen to be appointed by president trump. I appreciate your advocacy.

▶ 2:22:53Mr. Tung: I want to talk a minute about dissents we can talk about in the dred scott case, the dissent that became the rallying cry for the abolitionist movement, plessy v ferguson, justice marshall, carlin dissented and laid the groundwork for brown v. Board of education and then roe v. Wade, supreme court unilaterally inventing rights that lacked historical or constitutional grounding as a fundamental right.

▶ 2:23:19Mr. Tung: In lower courts you had now justice alito's dissent in the casey decision which gave the pro-life movement I think a lot of hope for the days ahead. I could go on and on and I bring this up because for both of you, it's going to play a very important role in the job that you have in front of you, the ninth circuit is historically the most overturned circuit at the supreme court in recent decades the past two years.

▶ 2:23:50Mr. Tung: The first circuit which has zero republican appointed judges has been reversed in 100% of the cases the supreme court has taken up on the merits. We judges who are really just end up on principle, there is a lot of heat coming your way.

▶ 2:24:07Mr. Tung: There is a lot of vitriol that will come your way, but beyond just the judicial philosophy that I think is really important, it is the courage that it is going to take in many ways to stand on a judicial island in many ways on the first circuit, on the ninth circuit, in the places where there just aren't a lot of conservative judges that have been appointed by republicans. So I think in many ways this will be the real test for a lot of the judges that come before this committee.

▶ 2:24:37Mr. Tung: Obviously originalism and textualism, those are very important creeds that I certainly subscribe to, but you really need people who when they are in the arena are going to do the right thing and maybe, just maybe articulate an argument that will be upheld at some point somewhere else. So Mr. dunlap, if confirmed, you would be the only republican-appointed judge in the first circuit.

▶ 2:25:03Mr. Tung: As a mention, it's been reversed 100% of the time I the supreme court and there's only four active district court judges in the first circuit appointed by republicans. The supreme court has already had to clean up the messes that the supreme court has created. How do you view your future role as a judge in the first circuit in writing even dissenting opinions given the likelihood that you are going to find yourself on an island?

▶ 2:25:32Mr. Dunlap: Senator maynard are famously independent. I suspect that that characterizes me as well. I believe that it is important to worse collegially with one's colleagues to reach the best decision possible.

▶ 2:25:52Mr. Dunlap: I think that it is also important that when there is a disagreement, that a judge he willing to write independently, to write a dissent, if necessary. I believe that dissent and concurrences can help further the dialogue within the fort. I can highlight important issues for consideration in the future.

▶ 2:26:17Mr. Dunlap: And yes, in certain circumstances it may call attention to an issue that may warrant review by the supreme court. So in all of my efforts, should I be confirmed, I would seek to mark both collegially and independently on the court.

▶ 2:26:32Mr. Tung: Senator, judges taken note to uphold the constitution and if that means requiring reading a dissent, I will do that. Justices wrote numerous dissents and I hope to follow in their stead where necessary. >> thank you, Mr. chairman. >> senator coons.

▶ 2:27:06Mr. Tung: >> thank you to the nominees to Mr. tung and to Mr. dunlap for you and your family, you will serve. Mr. tom, thank you for your service at doj. I just wanted to ask both of you, if I could, their record reflects you both met with president on july 2 to discuss your nominations, is that correct?

▶ 2:27:26Mr. Tung: Yes senator.

▶ 2:27:28Mr. Dunlap: That is correct. >> who attended that meeting, where did it occur and what with the topic of discussion?

▶ 2:27:36Mr. Dunlap: We met in the oval office. I believe we were company by the chief counsel, and so we generally discussed backgrounded judicial philosophy. >> Mr. tung, what you discuss?

▶ 2:27:52Mr. Tung: We discussed my background and qualifications. >> as far as I can tell during both the biden and firth trump administration, personal meetings by the president of the unit states were exceedingly rare. Why do you think president trump wanted to meet with you personally?

▶ 2:28:09Mr. Tung: I don't know, senator. >> Mr. dunlap?

▶ 2:28:13Mr. Dunlap: I agree, I don't know. >> anything that struck you as unusual about the questioning around your judicial philosophy?

▶ 2:28:22Mr. Dunlap: No, I was honored to be able to appear in the oval office. >> it is an honor to be in the office, I can agree with that. When you had a private practice represented a number of cryptocurrency clients including a coin base employee later pled guilty to wire fraud. If confirmed, would it be your intention to recuse yourself from any cases related to cryptocurrency?

▶ 2:28:45Mr. Tung: Senator, recusal would be dashed on a case-by-case basis and the relationship I might have the matter at hand. >> does it seem to you the presumption should be in favor of recusal?

▶ 2:29:04Mr. Tung: Not necessarily. It is a fact specific inquiry that I would engage in. >> I'm familiar. I knew recuse for a time in cases brought by my firm. >> why would a recusal be time bound?

▶ 2:29:23Mr. Tung: Because after a time the conflict of interest in the perception of the conflict of interest may have dissipated. >> give me a sense of what that time might be in your estimation.

▶ 2:29:33Mr. Tung: I will assess that question and I will consult my colleagues on how to apply that particular -- >> what sort of factors do you think you would weigh when considering whether to recuse in a case involving point base or jones day? Just give me a little more colors as to what kinds of things would cause you to conclude you had a potential conflict of interest or an appearance?

▶ 2:29:53Mr. Tung: The relationship that I may or may not have with the parties involved, the kind of legal issues that are implicated in the case at hand, whether I had been personally involved in the matter as a private litigant, all of those would be factors that I'd consider. >> I want to talk about one's a pillars of our judicial system. You've written a blog post for your firm about when it might be appropriate for a court to overturn established precedent.

▶ 2:30:22Mr. Tung: If confirmed, when would it be appropriate to overturn proceeding?

▶ 2:30:30Mr. Dunlap: First circuit precedent could only be overturned on bond and the court would consider the importance of the issue raised, would consider potential conflicts with other cases in determining whether or to take it. And if the court did take the case, you would consider a variety of factors. You would consider reliance interest, you would consider the quality of their legal reasoning.

▶ 2:30:58Mr. Dunlap: >> help me understand if you might give me the contours. >> the reliance interest is the extent to which parties may have shaped their conduct in a way that is relying upon the existence of a particular precedent. >> a precedent that had been well-settled for let's say, 50 years would be one that would likely have produced reliance interest?

▶ 2:31:23Mr. Dunlap: That would be a possibility. It would certainly the consideration that the court would need to take into account. >> what would you do and asked to apply supreme court precedent with which you disagree?

▶ 2:31:40Mr. Dunlap: I would be down by the supreme court. You need to look as a judge at the facts and the legal reasoning of the case, determine how it applies to the case before you. But the court's holding is binding on lower courts. >> thank you both. >> senator cruz. >> thank you, Mr. chairman. Congratulations to both of you. Today we consider two exceptional nominees.

▶ 2:32:09Mr. Dunlap: Nashua dunlap to the first circuit and eric tung for the ninth circuit. Both are accomplished appellate advocates, constitutionalist exactly the type of judges president trump promised to nominate. They been among the most activist court in america.

▶ 2:32:37Mr. Dunlap: Too often wrong on the law, too often hostile to the constitution, and too often willing to substitute their own left-wing politics for the rule of law. The ninth circuit is notorious for its extreme activism and wildly incorrect rulings. It is by far the largest circuit in the country, covering nine western states including california, washington and oregon, and still the circuit overreaches.

▶ 2:33:07Mr. Dunlap: Trying to dictate policy decisions far beyond its bounds. For years, the supreme court has had to correct its radical rulings. In kennedy b. Bremerton school district, the ninth circuit upheld the firing of a high school football coach for the "unconstitutional act of praying at the 50 yard line." not only did the ninth circuit trample coach kennedy's free speech and free exercise rights, the opinion even criticized

▶ 2:33:39Mr. Dunlap: Kennedy's faith itself, suggesting that his public prayers defied the sermon on the mound. The supreme court reversed 6-3. Restoring coach kennedy's constitutional rights and repudiating the ninth circuit for its overt hostility to religion. In california v. Greenwood, the ninth circuit invented a fourth amendment privacy right in trash .

▶ 2:34:08Mr. Dunlap: The supreme court reversed that decision because garbage at the curb has no privacy protection. In ashcraft the kid, the ninth circuit held that a former U.S. attorney general could personally be sued for detaining a terrorism witness. Again, the supreme court reversed 8-0. The ninth circuit declared there is no second amendment right to carry a concealed firearm.

▶ 2:34:40Mr. Dunlap: A ruling later guided by the supreme court. And just this week, I am leaving an amicus in a case that epitomizes the ninth circuit's lawlessness. The ninth circuit held that an alien standing on the mexican side of the U.S. port of entry has arrived in the united states. And can therefore claim asylum. Creating a right that congress never authorized.

▶ 2:35:10Mr. Dunlap: If allowed to stand, that decision would abolish border metering and would force cbp to process aliens in foreign countries and invite millions of asylum claims for people who have never set foot on U.S. soil. Our brief urges the supreme court to grant certain to reverse the ninth circuit. Because immigration policy is for the political branches, not for activist judges. The first circuit, the smaller, is no left liberal.

▶ 2:35:40Mr. Dunlap: It covers for new england states from maine to rhode island. Every single active judge on the court is a democratic appointee. Four by joe biden and one by barack obama. That reality has made the boston-based first circuit a magnet for progressive litigants trying to block president's immigration policies.

▶ 2:36:01Mr. Dunlap: On day one of president terms returned to office, progressive groups filed three separate lawsuits in first circuit district courts challenging his order to end birthright citizenship. They chose this venue deliberately. The first and ninth circuits show why judicial appointments matter. When unelected judges rewrite the law, fundamental rights he wrote, states are trampled on the constitution is replaced by politics of the bench.

▶ 2:36:28Mr. Dunlap: President trump is rightly restoring balance with nominees like joshua dunlap and eric tung . We are ensuring that the constitution, not politics, rules and air federal court. I've a question for both of you. Can you cap -- can you tell us committee what is the importance of the first amendment to the constitution?

▶ 2:36:47Mr. Dunlap: The first amendment has widely been referred to as protecting some of our first freedoms. Freedom of religion, freedom of speech among them. As a member of the federal judiciary, should I be confirmed, I would seek to equally apply that provision along with all other provisions to the parties to appear before me.

▶ 2:37:12Mr. Tung: The first amendment is critically important to our constitution at the supreme court has held time and time again including in the case you mentioned. >> thank you, gentlemen. This concludes panel one. We appreciate your testimony. Mr. meredith, Mr. mercer, please come forward. Stand at the witness table for me.

▶ 2:37:56Mr. Tung: Do you swear that the testimony you are about to give before this committee will be the truth, and nothing but the truth, so help you god? Please be seated. You are each given a few minutes to make an opening statement. We will start with you, Mr. -- I can't see that far. Mr. mercer.

▶ 2:38:17Mr. Mercer: Senator kennedy, ranking member durbin, members of the committee, thank you for holding this hearing. I also want to thank president trump for the honor of this nomination. I appreciate the support of senator daines and senator sheehy and the generous remarks offered by senator daines in his introduction this morning. With me today is my wonderful wife of 27 years marcy.

▶ 2:38:47Mr. Mercer: Without her love, sacrifice and steadfast support, I would not have this opportunity. We are the parents of two adult children who are working today and unable to join us. They have brought much joy to our lives and we are proud of their compliments. Reviewing my history as part of this nomination and confirmation process has been a reminder of how many people, too numerous to mention, have influenced my path.

▶ 2:39:18Mr. Mercer: My brother and I own much to two engaged in supportive parents, my 97-year-old mother, and my father is no longer living periods my dad entered public service as a legislator when I was nine and gave me a window to see policy early in my life. I'm confident that I pursued public for nearly 30 years due to what he allowed me to see. But others deserve mention.

▶ 2:39:43Mr. Mercer: Benefited from instruction and guidance for many teachers and mentors. I've learned much from my colleagues in government, both in state and federal service, and for the last 15 years, in private practice at the law firm of holland and hart. I've had support from friends and family along the way. I'm grateful to all of these people and look forward to the committee's questions.

▶ 2:40:08Chair Kennedy: Mr. meredith.

▶ 2:40:11Mr. Meredith: To all your committee members, I would like to say thank you for the opportunity to appear before this committee today. I'd also like to thank president trump for the great honor of this nomination and it also like to thank my home state senator, senator mcconnell for supporting me. I'm fortunate today to be accompanied by several family members and I would like to introduce and ninth them. First and foremost is my lovely wife rebecca.

▶ 2:40:38Mr. Meredith: This process can be very stressful one, and I think that stress is perhaps in many ways most acutely felt by spouses of nominees. So I'm grateful that she's been willing to go through this process and has done so with such grace and poise. Also with us today are three of our four children. I'm very pleased to have them here and very proud of them. Our youngest son just turned three a few days ago and we went confident he would be able to sit through this hearing based on our experiences at church.

▶ 2:41:06Mr. Meredith: We know he doesn't always understand that events like this are not two-way conversations involving him. So he's at home with my mother-in-law and a niece but if you're watching this, just know that we love you and we miss you. Also with me today are my parents, stephen karen, my brother brice, his wife kelly and their three daughters, and my brother-in-law is here as well. I'm deeply grateful they all took time out of their busy lives to be here to support me.

▶ 2:41:36Mr. Meredith: Several friends also made the trip to support me today and I'm deeply grateful for that. I want them to know how honored I am that they are here. I'm also grateful for all the family friends and colleagues who could not make it here today, but who are supporting me nonetheless. It's my understanding that something on the order of 350 lawyers and community leaders in kentucky and elsewhere have register their endorsement of my nomination.

▶ 2:42:05Mr. Meredith: I'm deeply honored and flattered by this. Finally I'd like to think the two judges through my clerk. They both inspired me to pursue public service in a position in the judiciary, and the traits that they exhibited every single day provided a master class in how judges should conduct themselves.

▶ 2:42:25Mr. Meredith: They taught me that judges should be objective, logical, patient, reasonable, understanding, considerate, and above all, that judges should always under all circumstances set aside their own desires and preferences and simply do what the law commands. Nothing more, nothing less. Shiny fortunate enough to be confirmed, that is how I will perform the job. Thank you for the opportunity to be here and I look forward to your questions.

▶ 2:42:50Chair Kennedy: Thank you, gentlemen. Senator durbin.

▶ 2:42:54Senator Durbin: Thanks for being here and I appreciate your family and friends joining with you on this important day in your lives. Mr. meredith, you heard my opening statement. Relative to pardons that were given by the governor of kentucky, why don't we give you an opportunity now to explain the questions that I raised.

▶ 2:43:22Mr. Meredith: Center, I can tell you that I learned about the governor's last-minute controversial pardons in the media after we left office, and I remember in your opening remarks you mentioned baker parton and I can tell you without hesitation that I did not review that parton file and they did not advise the governor on that.

▶ 2:43:48Sen. Durbin: How about another individual who received a commuted sentence, a child predator, convicted of sodomizing an unconscious boy and causing life-threatening injuries?

▶ 2:43:59Mr. Meredith: Same thing, I did not review that file nor did I advise the governor on that.

▶ 2:44:04Sen. Durbin: Who advised the governor on his apologies -- parton policy?

▶ 2:44:09Mr. Meredith: There are several lawyers in the office. I don't know if anybody advised the governor. Perhaps a general counsel did. I would be speculating. It wasn't me and I don't know.

▶ 2:44:24Senator Durbin: Mr. mercer, there is some question as to -- I'm not going to go into the history, someone else can raise it if they wish, but I'd like to ask you about your characterization of the january 6 defendants. Do you make a recommendation to the montana republican party to insert a characterization any platform that the january 6 defendants were being held in indefinite detention?

▶ 2:44:51Mr. Mercer: Ranking never durbin, I do not believe so and I certainly have no recollection of that. Sen. durbi

▶ 2:45:04Sen. Durbin: What is your feeling of the prosecution of the january 6 defendants? >> my view is those are cases considered by the department and brought and adjudicated in the system, and the outcomes are clear. And I don't have anything really to add on that issue.

▶ 2:45:21Sen. Durbin: What is your reaction to the full and unconditional pardon of the january 6 defendants by president trump?

▶ 2:45:28Mr. Mercer: My position on that is that the pardon power is something that the judiciary has no involvement in. And as a nominee for this position, I don't think it would be appropriate for me to comment on that issue.

▶ 2:45:45Sen. Durbin: Serving in the montana state legislature, you initially opposed a bill designed to eliminate the three year statute of limitations for civil lawsuits by sex abuse victims. A group of survivors were critical of you and said you made a total sellout in favor of child molesters and insurance companies. I'm relieved despite your opposition to compromise -- your opposition, the compromised bill was enacted.

▶ 2:46:13Sen. Durbin: How can they rely on you to rule on your cases fairly and justice?

▶ 2:46:20Mr. Mercer: I respectfully disagree with your construction of the matter that the bill in 2019 was brought to create an unlimited statute of limitations with respect to child sexual abuse hands-on offenders. We looked at what had occurred nationally in terms of similar statutes, with a healthy respect for what statute of limitations bring in civil cases.

▶ 2:46:48Mr. Mercer: Which is the ability to have measures brought in a timely five show in. We ultimately surveyed nationally what those provisions look like in other states. We concluded most states allowed victims of child sexual hands-on offenses to bring those cases sometime after reaching majority , and usually for some period of time after reaching maturity.

▶ 2:47:13Mr. Mercer: The statute we passed created the ability to bring that case up to, I believe it was aged 26. I believe it was age 26 or 27. That puts montana code firmly in line with what other states have done.

▶ 2:47:27Mr. Mercer: The key thing in that legislation we did was create a much more robust reporting mechanism that allows us to have clarity, or rather, allows the attorney general of the state to have clarity through the county attorneys on matters being referred for investigation by the department of public health and human services. We thought it was very important legislation, and we are pleased with the outcome.

▶ 2:47:52Sen. Durbin: Mr. meredith, beginning in 2017, you defended a lot that required doctors to present certain information to patients before the performance of an abortion procedure. You stated "not every patient understands the consequences of an abortion procedure." you further stated "there are a number of patients who don't understand the nature of the fetus within them." what was your basis for asserting female patients do not understand their own medical need?

▶ 2:48:20Mr. Meredith: My recollection is those arguments were rehashing for the core the evidence that was in the record. My recollection is there were several sworn declarations in the record.

▶ 2:48:33Sen. Durbin: What were the sources, do you know? What were the sources?

▶ 2:48:43Mr. Meredith: Declarations from individuals who had received abortions in the past.

▶ 2:48:48Sen. Durbin: You believe female patients are less able to understand medical advice male patients -- a van male patients -- understand medical advice than male patients?

▶ 2:48:54Mr. Meredith: Not sure I understand your question.

▶ 2:48:59Sen. Durbin: We certainly know we are talking primarily of women, childbearing status. You went on to say there are number of patients who don't understand the nature of the fetus. Do you believe female patients are less likely to understand this?

▶ 2:49:12Mr. Meredith: What we were saying in those arguments is we were summarizing the evidence in the record for the court. There were several witnesses who testified by sworn declaration that they wished they had had that information because they did not quite understand the nature and consequences --

▶ 2:49:33Sen. Durbin: Didn't understand the nature of the fetus?

▶ 2:49:38Mr. Meredith: My recollection is the testimony in the record in the sworn declarations said that would have been helpful information that they would have liked to have had. And I believe that also was harkening back to statements in the supreme court's case, as well as perhaps gonzales v carhart.

▶ 2:49:59Sen. Durbin: I'm going to tell you, I don't understand what you are saying based on this quote here. If you wish, it is your decision, if you want to clarify what you just said in light of what I quoted, please do so. Because at this point, I believe there is a serious question as to what you meant that day.

▶ 2:50:21Mr. Meredith: I was just simply making an argument on the evidence in the record.

▶ 2:50:25Sen. Durbin: Your decision is to whether or not you want to clarify it. I think it went to be a problem for some of us. Thank you very much.

▶ 2:50:29Chair Kennedy: Senator welch.

▶ 2:50:31Sen. Welch: Thank you, very much , Mr.. Mr. meredith, I want to ask you about these pardons, and I know you have been asked about it. My understanding is Mr. baker, he posed as a U.S. marshal. Is that correct?

▶ 2:50:59Mr. Meredith: Senator, I don't know. As I told senator durbin, I did not review any pardon file for Mr. baker and did not advise the governor on that. So I'm not aware of the facts and circumstances.

▶ 2:51:15Sen. Welch: Seriously?

▶ 2:51:18Mr. Meredith: I've read about it in the media.

▶ 2:51:22Sen. Welch: So you are aware.

▶ 2:51:25Mr. Meredith: I don't know the specifics of what you are talking about. I generally know an individual with the name received a pardon but I don't know the facts or circumstances.

▶ 2:51:33Sen. Welch: I'm asking whether you know he posed as a martial?

▶ 2:51:39Mr. Meredith: I do not know that. I know he was convicted -- my understanding is he was convicted of a murder. But I don't know the facts and circumstances.

▶ 2:51:45Sen. Welch: I mean, this was widely reported in kentucky, it was very controversial.

▶ 2:51:52Mr. Meredith: That was, I think this was in the news roughly five years ago. All the details that were --

▶ 2:52:04Sen. Welch: Senator mcconnell said this was completely inappropriate. Are you aware of that, to pardon him?

▶ 2:52:08Mr. Meredith: I recall that many elected officials made comments about that. I don't remember specifics.

▶ 2:52:17Sen. Welch: You know what, you are a lawyer. You understand specificity matters. I'm not asking you what you knew from personal experience. I'm asking you what everybody in kentucky knew. This guy posed as a martial, that was widely reported, right?

▶ 2:52:34Mr. Meredith: You are asking me about facts that I just don't know. I don't recall that. You might be right.

▶ 2:52:41Sen. Welch: You know what, be serious. This is incredibly controversial. So much so the -- that senator mcconnell called it out as completely inappropriate. Everybody knew about it. This guy posed as a martial, you are saying you don't know about that even though it was widely reported. He murdered somebody, right?

▶ 2:53:03Mr. Meredith: My understanding is he was convicted of a murder.

▶ 2:53:05Sen. Welch: And he killed -- he held this person that he killed, he held that man's wife and his kids at gunpoint.

▶ 2:53:16Mr. Meredith: I don't know, you are asking me about specific facts and circumstances.

▶ 2:53:20Sen. Welch: In 2017, a state jury found him guilty.

▶ 2:53:24Mr. Meredith: Senator, I understand it is my understanding it -- he was convicted. You are asking you about facts and circumstances I'm not aware of.

▶ 2:53:33Sen. Welch: All right. I will pretend you are telling me the truth. And I will enlighten you as to what happened. In 2017, ac jury found him guilty. He got a 19 year prison sentence, right?

▶ 2:53:46Mr. Meredith: Again, I don't know.

▶ 2:53:51Sen. Welch: Take it from me. Assume on telling the truth. He got 19 year sentence. In 2018, baker's brother, the man who was pardoned, hosted a fundraiser at his home for the governor, matt bevin, you worked for him, right?

▶ 2:54:06Mr. Meredith: I was in the council's office.

▶ 2:54:09Sen. Welch: All right. When I asked the question, did you work for him, is the answer yes?

▶ 2:54:16Mr. Meredith: I worked for him in the governor's office.

▶ 2:54:18Sen. Welch: So you worked for.

▶ 2:54:20Mr. Meredith: Correct.

▶ 2:54:21Sen. Welch: 's brother hosted a fundraiser -- his brother hosted a fundraiser and the governor got $21,500.

▶ 2:54:29Mr. Meredith: I don't know. I have seen in the media --

▶ 2:54:32Sen. Welch: I will let you know that's what happened. In governor bevins final days in 2019, he pardoned Mr. baker.

▶ 2:54:41Mr. Meredith: I have seen media reports to that effect.

▶ 2:54:46Sen. Welch: And he served 2.5 years of this 19 year sentence. Let me just ask you this. Do you agree with that pardon?

▶ 2:54:52Mr. Meredith: Senator, I did not review any pardon file for Mr. baker, I did not advise the governor on that. That is discretionary function --

▶ 2:55:03Sen. Welch: We all know that the governor can do what he wants. President trump can do what he wants. I'm asking you, do you agree with it? The guy shot somebody in front of his wife and kids, got a 19 year sentence, served 2.5 years, his brother gave $21,500 contribution to the governor and he got a pardon. Do you agree with that?

▶ 2:55:24Mr. Meredith: I'm not a lawyer of all facts and circumstances.

▶ 2:55:31Sen. Welch: While you were at the governor's council, there was a subpoena to get the records so the people could understand what the deal was and why this murderer got a pardon. You resisted the subpoena.

▶ 2:55:38Mr. Meredith: No, senator. What happened was several of us -- no, I did not. I told the governor's office I would be happy to respond to that.

▶ 2:55:56Sen. Welch: The records went missing, as I understand it.

▶ 2:55:58Mr. Meredith: No, that's not true to my knowledge.

▶ 2:56:00Sen. Welch: Well, where are they?

▶ 2:56:01Mr. Meredith: My understanding is the governor's administration has them.

▶ 2:56:06Sen. Welch: And they resisted the subpoena while you were working as counsel for the governor?

▶ 2:56:11Mr. Meredith: No, I don't believe that's true.

▶ 2:56:13Sen. Welch: I see my time is up and my answers are not complete, but I can ask follow-up questions. Thank you.

▶ 2:56:22Chair Kennedy: Senator blumenthal.

▶ 2:56:24Sen. Blumenthal: Thank you, senator kennedy. Mr. meredith, I'm very interested in your active membership in the federalist society. You were president of the university of kentucky's law school chapter. And as an attorney, you served on the committee of connecticut lawyers chapter.

▶ 2:56:54Sen. Blumenthal: In 2021, you declared the federal society as one of my favored organizations ever, I love everything the federalist society does. President trump has a different view, apparently.

▶ 2:57:08Sen. Blumenthal: He has routinely attacked the organization, claiming it gave him "bad advice." on nominees, and calling it a "sleaze bag." I take it you disagree with president trump on his views on the federalist society?

▶ 2:57:28Mr. Meredith: Senator, as a judicial nominee, it is not appropriate for me to comment on issues like that.

▶ 2:57:36Sen. Blumenthal: I don't understand why not.

▶ 2:57:40Mr. Meredith: You are referring to a personal political issue and it is just not appropriate for me to weigh in on that.

▶ 2:57:49Sen. Blumenthal: The federalist society, so far as I know, is not a partisan political organization. You are an active member of it. I'm asking you whether you agree with president trump on its apparent failings and flaws.

▶ 2:58:14Mr. Meredith: Again, it's not appropriate for me to weigh in on that.

▶ 2:58:20Sen. Blumenthal: I don't understand why you are reluctant to express a view on it. You are a proud member of the federalist society, correct?

▶ 2:58:28Mr. Meredith: I have been a member of the federalist society off and on since law school. What you are referring to our comments and issues that are just not appropriate for a judicial nominee to weigh in on.

▶ 2:58:44Sen. Blumenthal: Is that true of all of the organizations you participated in? That they are not appropriate for you to comment on?

▶ 2:58:50Mr. Meredith: Well, I'm not sure -- if you are asking me to make assessments of individuals and organizations, I think that would be the case, I think it's not appropriate for me to make assessments.

▶ 2:59:03Sen. Blumenthal: You remember the organization now, correct?

▶ 2:59:08Mr. Meredith: I am currently a member, yes.

▶ 2:59:09Sen. Blumenthal: So I take it you disagree with president trump?

▶ 2:59:15Mr. Meredith: Again, I'm just not going to weigh in on any assessments of any organizations or individuals or anything like that.

▶ 2:59:21Sen. Blumenthal: Let me ask you on a different topic, since you are unwilling to answer those questions. You have made it no secret about your feelings on reproductive rights throughout your career. Given you are -- your long history of advocating against reproductive freedoms and rights, can we expect you to be fair and impartial as a judge if you are confirmed?

▶ 2:59:46Mr. Meredith: Absolutely, senator. My job as a judge, should I be fortunate enough to be confirmed, will be to set aside all of my personal beliefs, all my personal preferences and desires and simply do what the law commands, to uphold the rule of law in all circumstances.

▶ 3:00:08Sen. Blumenthal: Let me ask you, do you think brown v. Board of education was correctly decided?

▶ 3:00:14Mr. Meredith: Do I think brown v. Board of education was correctly decided? Yes, senator.

▶ 3:00:23Sen. Blumenthal: How about loving versus virginia?

▶ 3:00:24Mr. Meredith: Yes.

▶ 3:00:25Sen. Blumenthal: And oberto developers is hodges?

▶ 3:00:29Mr. Meredith: Senator, I'm comfortable saying brown and loving our correctly decided because I think those are so deeply entrenched in our nation's judicial tradition that I think there is absolutely no legitimate chance that anyone will challenge them.

▶ 3:00:50Mr. Meredith: For other supreme court decisions, I'm hesitant to make an assessment, because I don't think it is my job to grade the supreme court or offer assessments of whether they are right or wrong. For other --

▶ 3:01:05Sen. Blumenthal: I'm disappointed in that answer. I think it is unsatisfactory, given roberta fell is established and well accepted precedent. Let me ask you, Mr. mercer, do you think brown v. Board of education was correctly decided?

▶ 3:01:22Mr. Mercer: Yes, I do.

▶ 3:01:24Sen. Blumenthal: And loving versus virginia?

▶ 3:01:27Mr. Mercer: Yes, I do.

▶ 3:01:28Sen. Blumenthal: How about oberto versus fell?

▶ 3:01:35Mr. Mercer: My position on that is that as a binding precedent the supreme court has issued. If I had that matter come before me, I waited here to that precedent.

▶ 3:01:49Sen. Blumenthal: ? So you believe?

▶ 3:01:50It Was Mr. Mercer: Correctly

▶ 3:01:51Decided Mr. Mercer: I believe I would be bound by it presidentially. And it would follow as president.

▶ 3:01:58Sen. Blumenthal: But you are distinguishing that supreme court precedent from loving and brown?

▶ 3:02:02Mr. Mercer: As this committee has heard from other nominees, given the passage of time and as my fellow panelist has indicated, that history, but you have heard from other nominees, the same thing, and I believe that is the correct answer.

▶ 3:02:20Sen. Blumenthal: Thank you, Mr. chairman.

▶ 3:02:22Chair Kennedy: Senator klobuchar.

▶ 3:02:25Sen. Klobuchar: Thank you very much, Mr. chairman.

▶ 3:02:28Chair Kennedy: I'm sorry, what did you call me?

▶ 3:02:33Sen. Klobuchar: Mr. chairman. We are all calling you that because you are the chairman. All right. Mr. meredith, as chief deputy counsel to the governor of kentucky, you defended as my colleagues discussed, you defended a law that imposed severe and medically unnecessary licensing regulations on clinics. The law would have the effect of closing what was at the time the last remaining abortion clinic in kentucky.

▶ 3:03:01Sen. Klobuchar: You argued the -- that closing the last abortion clinic and kentucky would be essentially none for women. Why did you argue that closing the clinic would not have an impact on the women of kentucky?

▶ 3:03:15Mr. Meredith: Senator, my recollection of that argument is, of course, now, we are under the regime government -- under the dobbs regime. My recollection of the argument is that casey had said it is not an undue burden to have to travel up to 150 miles to obtain an abortion.

▶ 3:03:43Mr. Meredith: My recollection is the evidence in the record showed that no one or almost no one would have to travel more than 100 50 miles to obtain an abortion should that clinic close, because kentucky's geography is such that all the population lives within 150 miles of facilities in other states.

▶ 3:04:04Sen. Klobuchar: Is it true that by closure at the time required women to leave the state and travel up to the 150 miles they needed health care?

▶ 3:04:15Mr. Meredith: I think that's right, but senator, one thing to keep in mind is the unique geography of kentucky is such that many parts of kentucky are much closer to facilities in other states than to that one facility in louisville. For instance, if you live in southern kentucky, you might be closer to nashville or knoxville then louisville. That was the nature of that argument.

▶ 3:04:39Sen. Klobuchar: Last month was the 60th anniversary of griswold, which establish the right to contraception. In the dobbs case I supreme court clarified its opinion does not threaten griswold. They said nothing in this a pit -- in this opinion should cast doubt on precedents do not confirm abortion.

▶ 3:05:04Sen. Klobuchar: Will you commit to adhering to the precedents established by griswold and upholding the right to contraception?

▶ 3:05:10Mr. Meredith: I can commit to you that I will follow and faithfully apply all binding precedents of the united states supreme court.

▶ 3:05:18Sen. Klobuchar: Along those lines, Mr. mercer, chief justice john roberts wrote in his most recent end of year report that disregarding federal court rulings is "dangerous" and "must be soundly rejected." do you agree with chief justice roberts that any suggestion of disregarding a court's ruling must be soundly rejected?

▶ 3:05:40Mr. Mercer: Senator, I certainly have always advised clients to comply with court orders, and I believe that is an essential feature. I believe are extremely rare circumstances in which there may be a basis to challenge the existence of a court order. Again, throughout the entirety of my career, and if I have the honor of being confirmed, it would be my expectation that any party subject to an order I issue would follow it.

▶ 3:06:09Sen. Klobuchar: But I think he was talking about not people appealing court ruling through the regular course. He said disregarding court rulings. Do you believe -- do you agree with him that this should be soundly rejected?

▶ 3:06:23Mr. Mercer: I believe that parties should comply with court orders. I believe that if they believe there is a basis to not do that, they should seek relief. , so, yes I believe court orders should be followed. What I'm trying to say is I think there are extremely narrow circumstances where there may be a basis to say that there is a legal basis not to follow the order. It is extremely rare. I have never seen it.

▶ 3:06:52Mr. Mercer: I have never counseled a party for whom I'm representing to take that position. And it would be my position, if confirmed, it would be my expectation that all parties regardless of who they represent comply with any orders I issue.

▶ 3:07:05Sen. Klobuchar: Mr. meredith, I have one more question. Can you quickly answer that one about roberts?

▶ 3:07:12Mr. Meredith: Sure, senator. I agree with the testimony of other witnesses who have appeared before this committee in recent months, like solicitor general john sauer, all of whom I understand have said the general rule is a party before a court must obey the court's order. However, there are potentially certain narrow exceptions to that.

▶ 3:07:37Sen. Klobuchar: Ok. Last thing, we were talking about the kentucky law and your role. Given the fact that you didn't look at this as an enormous burden for these women to go 150 miles, to go to another state, what would you say to those who question that you can be handed in applying the law, including women trying to vindicate their rights?

▶ 3:08:04Mr. Meredith: What I will say to that is I will be fair-minded and evenhanded with all litigants, should I be fortunate enough to be concerned. I think you can look at the fact that attorneys from all across the political spectrum are supporting me, cocounsel, opposing counsel, and that is because they know that I understand the difference between being an advocate and being a judge.

▶ 3:08:35Mr. Meredith: When I was a lawyer, it was my obligation to defend the commonwealth. As a judge, it will be my obligation to set aside all other personal beliefs, policy preferences, things of that nature and simply follow the law.

▶ 3:08:45Sen. Klobuchar: Thank you. >> Mr. chairman, may I have permission to enter into the record two articles from louisville papers?

▶ 3:08:57Chair Kennedy: Without objection. >> thank you.

▶ 3:09:02Chair Kennedy: Mr. meredith, you worked for governor bevin.

▶ 3:09:03Mr. Meredith: Yes, senator.

▶ 3:09:04Chair Kennedy: You were his lawyer?

▶ 3:09:08Mr. Meredith: I was one of the lawyers in the office.

▶ 3:09:09Chair Kennedy: Governor bevin issued some controversial pardons, is that right?

▶ 3:09:13Mr. Meredith: He did.

▶ 3:09:14Chair Kennedy: The fbi investigated those pardons.

▶ 3:09:19Mr. Meredith: Yes, senator. That's right.

▶ 3:09:21Chair Kennedy: Too fbi file charges against governor bevin?

▶ 3:09:25Mr. Meredith: I understanding is they did not.

▶ 3:09:27Chair Kennedy: Did you advise governor bevin on any of those controversial pardons?

▶ 3:09:32Mr. Meredith: The only controversial pardon that I advised him on was one from Mr. irvin edge and I recommended that. Mr. edge not be pardoned.

▶ 3:09:45Chair Kennedy: Was he pardoned?

▶ 3:09:47Mr. Meredith: My understanding from reading news articles is he was pardoned.

▶ 3:09:52Chair Kennedy: The governor did not take your advice.

▶ 3:09:54Mr. Meredith: Apparently not.

▶ 3:09:54Chair Kennedy: But you didn't have anything to do with any of the other controversial pardons.

▶ 3:09:59Mr. Meredith: No, senator.

▶ 3:10:00Chair Kennedy: Ok. If the new york times, Mr. meredith, published an editorial , and I suppose it said, senator kennedy is a bad senator, we don't like him. We think is an in -- many ignorant slut.

▶ 3:10:24Chair Kennedy: And I called the new york times, and I said, ok, I want to write a letter to the editor. Can the new york times tell me know? -- tellme no?

▶ 3:10:39Mr. Meredith: I believe they could tell you no.

▶ 3:10:41Chair Kennedy: What if I said, if they told me, no. And I said, ok, I want to buy a full-page ad that says john kennedy is a good senator, he is not an ignorant slut, and they said no, could they do that?

▶ 3:10:59Mr. Meredith: I think the first amendment would allow them to exercise editorial discretion and control over the types of ads they want to sell.

▶ 3:11:11Chair Kennedy: You think it is a first amendment catch?

▶ 3:11:15Mr. Meredith: There could be -- I mean, you know, I think there are potentially other laws that could govern how they make their decisions to sell ads.

▶ 3:11:34Mr. Meredith: But I think if they are wanting -- if they are making a decision about whether you want to buy an ad that said senator kennedy is a good senator, I think the first amendment would allow them to do that.

▶ 3:11:50Chair Kennedy: Suppose I am running for reelection after this editorial, and I go to my local television station and I say, I want to run a political ad. And they say no. The new york times says you are an ignorant slut. We are not going to run your ad. Can they do that?

▶ 3:12:07Mr. Meredith: That is governed by different laws pertaining to the airwaves.

▶ 3:12:12Chair Kennedy: There is only one constitution. How can a news organization deny me the right to reply to an editorial that denigrates me, but yet I have a right to run a television ad that says the new york times is wrong?

▶ 3:12:34Mr. Meredith: I think, in order to have permission to use the airwaves, I think federal law requires tv stations to give equal time, or equal opportunity to buy --

▶ 3:12:48Chair Kennedy: Why is that constitutional?

▶ 3:12:52Mr. Meredith: Is constitutional because, my understanding at least is the federal government controls the airwaves that are essentially federal property. The federal government can regulate and authorize the use.

▶ 3:13:09Chair Kennedy: The federal government has to abide by the first amendment. Explain to me how the new york times can say no to me wanting to write a reply, but a tv station can't prohibit me from replying?

▶ 3:13:22Mr. Meredith: My understanding of the law is the airwaves are a public resource that the federal government regulates.

▶ 3:13:30Chair Kennedy: You think they are a common carrier?

▶ 3:13:33Mr. Meredith: I don't know the law on this specifically, senator. I don't know that the common carrier analysis would apply their. Perhaps it would.

▶ 3:13:42Chair Kennedy: Suppose I have my cell phone service with at&t and I call at&t, and I say, I want to expand my cell phone expand l to expand my cell phone expand e service, and they say, nope. We read that "new york times" article. You can't do it. Can at&t turn me down?

▶ 3:14:12Mr. Meredith: I think theoretically they probably could.

▶ 3:14:16Chair Kennedy: How? Why?

▶ 3:14:19Mr. Meredith: Well, I take that back, they probably can't, because it is the same vein, they are using the airways as well.

▶ 3:14:28Chair Kennedy: They are a common carrier, right? Mr. mercer, can congress pass a law that says cities are no longer able to participate in zoning? We are going to take that over at the federal level, because we don't have enough houses. With that because additional?

▶ 3:14:51Mr. Mercer: Senator kennedy, I don't believe it would be.

▶ 3:14:54Chair Kennedy: Why not?

▶ 3:14:55Mr. Mercer: That is the sort of thing the constitution has, a, not given congress the constitutional authority to do that.

▶ 3:15:06Chair Kennedy: Why not?

▶ 3:15:14Mr. Mercer: In our institution of federalism, those things not set forth in the constitution are reserved for the states, and zoning is one of those were essential public health, safety, welfare matters that we reserve to local government to resolve. So I don't believe it would be permissible for this body to attempt to codify something.

▶ 3:15:26Chair Kennedy: So local government would win in that instance.

▶ 3:15:30Mr. Mercer: That is my understanding.

▶ 3:15:33Chair Kennedy: Ok. Suppose local government came back and said, now that we've won, and we have jurisdiction over our own zoning and our own housing laws, if you want to build a new house in our city, the permitting is now $50,000. Can they do that?

▶ 3:15:57Mr. Mercer: Senator, essentially the same analysis applies. I think that the local government would have the ability to establish that, and I don't think congress could overrule it, and I think they would have the inherent authority to do so.

▶ 3:16:14Chair Kennedy: Why isn't that under the united states constitution, the fifth amendment?

▶ 3:16:23Mr. Mercer: Mr. mercer: senator, that would be a whole different analysis.

▶ 3:16:24Chair Kennedy: It's the same analysis. We just established they have the right to zone as they wish. And so -- and to regulate local housing. They are doing it. They are saying $50,000 to get a building permit. You are telling me that is constitutional.

▶ 3:16:40Mr. Mercer: I believe, senator, it would be. I believe they can establish that they need to in order to engage in the permitting process, to go through what they need to go throughout the local government. I doubt very much if that would be a violation, a coprincipal taking of the fifth amendment.

▶ 3:17:02Chair Kennedy: Are you familiar with scheetz v county ave el dorado?

▶ 3:17:07Mr. Mercer: Senator, I am not. It's not something I've encountered in my process.

▶ 3:17:15Chair Kennedy: The supreme court struck down a fee for a permit to build a home.

▶ 3:17:23Mr. Mercer: I was not familiar with that, senator.

▶ 3:17:27Chair Kennedy: At some point, local government, which has wide discretion when exercising its power, at some point, their actions can step over the line, can they not?

▶ 3:17:40Mr. Mercer: That is true, senator, and --

▶ 3:17:44Chair Kennedy: And by late white?

▶ 3:17:47Mr. Mercer: Well, in this case, I'm not familiar if sheetz was based on the fifth amendment or some other analysis.

▶ 3:17:56Chair Kennedy: It was fifth amendment.

▶ 3:17:59Mr. Mercer: Ok.

▶ 3:18:04Chair Kennedy: Are y'all hungry? [laughter] I am. Ok. All right, gentlemen, thank you. Thanks to all the nominees today. Written questions for the record can be submitted until august 6 at 5:00. We would ask you to respond promptly. This hearing is adjourned. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap.org]

Title

Confirmation hearing for four federal circuit and district judge nominees

Purpose

The Senate Judiciary Committee met to consider four judicial nominations: Eric Tung and Joshua Dunlap for the Ninth and First Circuit Courts of Appeals, and William Mercer and Stephen Chad Meredith for U.S. District Courts in Montana and the Eastern District of Kentucky, respectively. Chair Grassley opened by criticizing President Trump's public attack on Republican senators over the blue-slip tradition, and members used the hearing to probe nominees' past writings on gender, abortion, marriage, and judicial precedent, as well as their roles in controversial state actions. Begins at▶ 0:33:40

Who spoke

• Chair Chuck Grassley (R-IA)▶ 0:33:40: Addressed the Hawaii/West Coast tsunami▶ 0:33:40 and criticized President Trump's Truth Social attack over the blue-slip process▶ 0:34:08; introduced Tung and Dunlap's qualifications▶ 0:35:35 and later questioned both nominees on judicial philosophy▶ 1:11:20.

• Sen. Dick Durbin (D-IL), Ranking Member▶ 0:38:27: Said Tung and Dunlap were selected without meaningful consultation with home-state Democratic senators▶ 0:39:25; cited Tung's 2004 comments on welfare and "dissolution of the family" and LGBTQ rights▶ 0:40:43, Dunlap's work defending opioid manufacturers▶ 0:40:43, and pressed Meredith on Bevin's pardon of Patrick Baker▶ 0:42:20.

• Sen. Susan Collins (R-ME)▶ 0:43:02: Explained Maine's bipartisan judicial-selection process▶ 0:43:30 and introduced Dunlap's career and family▶ 0:45:22.

• Sen. Mitch McConnell (R-KY)▶ 0:49:38: Introduced fellow Kentuckian Chad Meredith, recounting his internship in McConnell's office and career as Kentucky's first solicitor general▶ 0:50:37.

• Sen. Steve Daines (R-MT)▶ 0:55:25: Introduced William Mercer, detailing his Montana roots, DOJ service, and time in the Montana legislature▶ 0:56:26.

• Sen. Alex Padilla (D-CA)▶ 0:58:44: Said Tung was selected for extreme conservative ideology despite Padilla and Schiff proposing alternative names▶ 0:59:04; argued Tung lacks trial experience, noting appellate judges should have litigation background▶ 1:00:50.

• Sen. Adam Schiff (D-CA)▶ 1:02:23: Criticized Tung's anti-labor record and involvement in the independent state legislature theory rejected 6-3 in Moore v. Harper▶ 1:03:07; cited DOJ's misconduct complaint against a judge who ruled against the administration▶ 1:04:48.

• Mr. Joshua Dunlap, First Circuit nominee▶ 1:06:18: Thanked President Trump and Sen. Collins▶ 1:06:48; later described his views on federalism and legislative history as not dispositive of personal policy preference▶ 1:16:19.

• Mr. Eric Tung, Ninth Circuit nominee▶ 1:08:06: Thanked clerkships with Justices Scalia and Gorsuch▶ 1:09:02; confirmed Obergefell is binding precedent but declined to state personal views on gender roles or same-sex marriage▶ 1:18:48; confirmed friendship with Article III Project's Mike Davis▶ 1:22:12 and declined to characterize Democrats as "evil" until pressed by Sen. Kennedy▶ 1:20:58.

• Sen. Mike Lee (R-UT)▶ 1:22:56: Questioned Tung on originalism, legislative history, and bicameralism/presentment under Article I, Section 7, referencing INS v. Chadha▶ 1:25:59.

• Sen. Peter Welch (D-VT)▶ 1:29:19: Pressed Tung repeatedly on his 2004 gender-roles comments and 2004 anti-labor protest, asking how women or workers could expect a fair hearing▶ 1:30:27▶ 1:34:29.

• Sen. Sheldon Whitehouse (D-RI)▶ 1:52:04: Questioned Dunlap on his opposition to Maine's same-sex marriage ballot initiative and his Blackstone Fellowship internship with ADF▶ 1:52:21▶ 1:55:35; criticized GOP members for telling witnesses they need not answer QFRs▶ 1:57:34.

• Sen. John Cornyn (R-TX)▶ 1:58:02: Asked Tung about his immigrant parents and background▶ 1:58:41 and pushed back on Democratic colleagues' characterization of Tung as a radical▶ 1:59:40.

• Sen. Mazie Hirono (D-HI)▶ 2:03:12: Asked nominees about sexual harassment history▶ 2:03:33 and pressed Tung on whether all Supreme Court justices share his originalist view, and on following court orders▶ 2:05:37.

• Sen. Josh Hawley (R-MO)▶ 2:09:33: Asked Dunlap about his appellate litigation experience▶ 2:09:33 and Tung about his 2019 Townhall op-ed defending originalism, citing Kyllo v. United States▶ 2:11:34.

• Sen. Cory Booker (D-NJ)▶ 2:14:49: Pressed Tung on his friendship with Mike Davis and Davis's description of Democrats as "relentless and evil," asking Tung to disavow the characterization▶ 2:16:31.

• Chair John Kennedy (R-LA)▶ 2:20:32: Got Tung to state he does not think Republicans, Democrats, or independents are "evil"▶ 2:20:58; later grilled Meredith and Mercer on First Amendment/common-carrier theory, zoning, and permitting fees, citing Sheetz v. County of El Dorado▶ 3:17:07.

• Sen. Eric Schmitt (R-MO)▶ 2:21:30: Praised Tung's restraint on political questions and criticized "Judge Boasberg" (referred to as "Judge Post birds" in transcript) for commenting on Trump▶ 2:22:01; discussed dissents and the Ninth/First Circuits' reversal records with Tung and Dunlap▶ 2:22:53.

• Sen. Chris Coons (D-DE)▶ 2:27:06: Asked Tung and Dunlap about their July 2 Oval Office meeting with President Trump▶ 2:27:26 and pressed Tung on recusal standards for cryptocurrency-related cases given his prior clients▶ 2:28:45.

• Sen. Ted Cruz (R-TX)▶ 2:31:40: Delivered an extended critique of Ninth Circuit rulings (Kennedy v. Bremerton, California v. Greenwood, Ashcroft v. al-Kidd) and First Circuit venue-shopping on birthright citizenship suits▶ 2:32:37.

• Mr. William Mercer, Montana district nominee▶ 2:38:17: Thanked Trump, Daines, and Sheehy▶ 2:38:17; defended the compromise child-sex-abuse statute-of-limitations bill he initially opposed▶ 2:46:48; confirmed Brown v. Board and Loving were correctly decided but treated Obergefell only as binding precedent▶ 3:01:35.

• Mr. Stephen Chad Meredith, Kentucky district nominee▶ 2:40:11: Said he did not review Governor Bevin's pardon file for Patrick Baker▶ 2:43:22; defended his legal argument that closing Kentucky's last abortion clinic was not an undue burden given travel distances▶ 3:03:15; confirmed Brown and Loving correctly decided but declined to grade other precedents▶ 3:00:50.

• Sen. Richard Blumenthal (D-CT)▶ 2:56:24: Asked Meredith whether he agreed with Trump's criticism of the Federalist Society▶ 2:57:08; pressed both Meredith and Mercer on Brown, Loving, and Obergefell▶ 3:00:08.

• Sen. Amy Klobuchar (D-MN)▶ 3:02:25: Questioned Meredith on the Kentucky abortion-clinic closure argument▶ 3:03:01 and both nominees on adherence to Griswold and compliance with court orders, citing Chief Justice Roberts's year-end report▶ 3:05:18.

Key moments

• Grassley opened by publicly rebuking President Trump for attacking him and Senate Republicans over the blue-slip tradition, calling the comments personally offensive▶ 0:34:08.

• Durbin detailed a stark contrast in consultation timelines: the Biden White House discussed circuit vacancies with home-state senators for 6–9 months, versus roughly two to three months for Dunlap and Tung▶ 0:40:15.

• Tung, pressed repeatedly by Sen. Welch and Durbin on his 2004 remark that "women are simply better than men at some things," declined to say whether his views have changed, citing judicial ethics canons▶ 1:19:41▶ 1:30:34.

• Sen. Whitehouse got Dunlap to acknowledge he chose to intern at Alliance Defending Freedom (ADF) during law school and wrote op-eds opposing a Maine same-sex marriage ballot initiative, despite Dunlap's earlier framing of the issue as merely about stolen political signs▶ 1:56:19.

• Sen. Booker pressed Tung at length to state that Democrats are not "evil," which Tung repeatedly declined to do by calling it a "political question," until Chair Kennedy directly asked and Tung answered "I don't think that"▶ 2:20:32▶ 2:20:58.

• Sen. Welch confronted Meredith with details of the Patrick Baker pardon — a $21,500 fundraiser contribution from Baker's brother to Governor Bevin preceding a pardon that cut a 19-year murder sentence to 2.5 years served — and Meredith repeatedly said he was not aware of the facts▶ 2:54:21▶ 2:54:41.

• Sen. Blumenthal noted Meredith called the Federalist Society "one of my favorite organizations ever" in 2021, then asked if he agreed with Trump's criticism of the group as giving "bad advice"; Meredith declined to comment▶ 2:57:08▶ 2:57:28.

• Both district nominees, Mercer and Meredith, affirmed Brown v. Board and Loving v. Virginia were correctly decided but declined to characterize Obergefell as correctly decided, calling it only binding precedent▶ 3:00:14▶ 3:01:35.

• Chair Kennedy used an extended hypothetical about the New York Times, TV stations, and AT&T to press Meredith and Mercer on First Amendment and common-carrier distinctions, then pivoted to zoning authority and cited Sheetz v. County of El Dorado on permit fees▶ 3:16:40▶ 3:17:07.

• Sen. Cruz's opening statement catalogued Ninth Circuit reversals including Kennedy v. Bremerton School District (6-3), California v. Greenwood, and Ashcroft v. al-Kidd (8-0), and noted all five active First Circuit judges are Democratic appointees▶ 2:33:39▶ 2:35:40.

Metadata

Official title	Hearings to examine the nominations of Joshua D. Dunlap, of Maine, to be United States Circuit Judge for the First Circuit, Eric Chunyee Tung, of California, to be United States Circuit Judge for the Ninth Circuit, William W. Mercer, to be United States District Judge for the District of Montana, and Stephen Chad Meredith, to be United States District Judge for the Eastern District of Kentucky.
Committee	Senate Judiciary
Chamber / Congress	Senate · 119th Congress
Date	2025-07-30
Type	Meeting
Witnesses	(none listed in event metadata)
Video	senate-isvp
Transcript	595 caption blocks · 22,141 words · 3:18:40 runtime
Event	Congress.gov 337312