forms or blue slips of paper to initiate the nominee's confirmation process. initially if senators don't turn in their forms to senator leadership, they do not receive confirmation hearings and their nominations stall. chuck grassley proceeded with supreme court justice david strauss's confirmation process, withholding his blue slip to strauss's nomination for the united states court of appeals. this is 2 hours 15 minutes.

. >> can i alert my colleagues that are here to introduce individuals normally we would turn to you and let you do that. but this meeting is -- has some more controversy than most hearings have so this is the way we're going to handle it. i'm going to make an opening statement, a little longer than usual. senator feinstein will make a statement that's longer than usual. then because of the two states that are involved, and for different reasons, but coming to the same conclusion, normally we don't have members speak, but i felt i ought to give the courtesy to both senator kennedy and senator said he wanted to

speak about the controversy and his nominee. then i'm going to turn to senator franken and senator franken will have up to five minutes s that okay? >> you're going to introduce people, but i would like to get the controversial statements out of the way first. >> that makes sense. >> okay. congratulations to all the nominees and to your families and everybody's welcome at the committee. two weeks ago, i announced in a speech on the senate floor that i would hold a hearing for minnesota supreme court justice david strauss and former louisiana solicitor general kyle duncan. despite not receiving two positive blue slips from home state senators. i explained that nearly all judiciary committee chairman, they number 18 over the last 100

years, allowed for hearings in such circumstances. and i guess i should have been more explicit and say there were two that didn't confiorm to tha. and i explained that i too would treat blue slips, wouldn't treat them as a single senator veto. some of my colleagues and liberal outside groups have accused me of abolishing the 100-year-old blue slip tradition, that's simply not true. i'm choosing to apply the blue slip policy, that most of my predecessors had for the vast majority of this 100-year history. my critics seem to believe the blue slip history started with senator leahy, 16 years ago, but as i explained in those speeches, history is longer than that. critics also claim that i selectively applied senator

leahy's strict blue slip policy in the last two years of the obama administration. they point to nine nominees who were supposedly denied hearings because of the lack of two positive blue slips. this also is not true and i'll explain. first of all, five of these nominees were district court nominees. i have already said district court nominees, typically, maybe not always, because the first blue slip was returned in 1917 from a georgia senator and it involved a -- wasn't returned and it involved a district -- georgia district court nominee at that time. so i'll start over with my sentence. i have already said that district court nominees typically require the return of two positive blue slips before the hearing.

that one exception ei gave you, there may be a lot of other exceptions, but this one applies to president trump's nominees as it did to president obama's. the four circuit court nominees, on the other hand weren't nominated until a presidential election year. as you know, i gave members this year, nearly seven months to return blue slips on justice strauss. i hoped they would both be returned to avoid the situation we have today. i recognize that my policy differs somewhat, so i gave my colleagues from minnesota ample time before proceeding. and i wouldn't have given my colleagues the same courtesy in 2016, but they weren't -- we wouldn't have held hearings until july at the earliest. when we were already into the

political conventions and under the -- well, it's probably only 3 37-year-old leahy-thurmon rule on both sides. the committee doesn't usually -- so the nominations simply came too late to proceed without home state senators' support. moreover, it was very apparent, that even nominees with the support of home state senators, and who were processed through the committee, weren't getting votes on the floor. senator derbin on several occasions questioned the wisdom of processing any nominees in such a circumstance. despite this, i held hearings for nearly as many judicial nominees as senator leahy did in a comparable period of time of his chairmanship 2007 to 2008. all in all, it would have been a waste of time of the committee's and our resources to hold

hearings on the four circuit court nominees nominated in 2016 without two blue slips. senator leahy knows as well as anyone that there are multiple reasons we don't hold hearings for some nominees. in fact senator leahy declined to schedule hearings for six of president bush's circuit court nominees, for reasons besides lack of positive blue slips, he denied hearings for three of the the nominees for the fourth circuit. these nominees had two positive blue slips from their home state senators and two were nominated more than a year before the 2008 presidential elections. senator leahy also refused to act on the nomination of peter kiesler, president bush's nominee to the d.c. circuit who was nominated in 2006, obviously blue slips were not the reason for my predecessor's decision to

stall mr. kiesler's nomination for almost two years. senator leahy also declined to hold hearings for two sixth circuit nominees, even though both ohio senators returned positive blue slips, the two democratic senators from michigan, asked senator leahy to halt proceedings on all sixth circuit nominees. in other words the senators from one state held up the productive consideration of people from the other states in the same circuit. senator leahy honored the request and denied a hearing to the two nominees for the ohio seats. this was the first time in history as far as i know that a chairman allowed out of state senators to halt committee proceedings on nominees. what my predecessor's actions show is that there are numerous reasons for a chairman not to hold a hearing on nominees

besides blue slip problems. i myself did not proceed on several district court nominees, who had two positive blue slips because it would have been a waste of committee's resources going forward because these nominations weren't going to be consid considered -- confirmed anyway. it's simply false to say any decision i made not to hold a hearing for president obama's judicial nominees was based solely on blue slips. additionally, critics have argued that only three nominees in recent decades have been confirmed over blue slip objections. but the question is not whether the nominees before us today will be confirmed, the question is whether they should receive a hearing, home state senators are entitled to lobby against confirmation, but they can't deny a nominee a hearing for political or ideological reasons. but the democrats abolished an

important rule for confirmation of judges who do not have support of their home state senators because in 2013, that party abolished the filibuster for nominees for the court. the filibuster is what allowed senators to fulfill the preferences of home state senators on the senate floor. for example democrats filibustered carolyn cool, harry saad and other nominees of president bush's who did not have the required two blue slips. and there was a letter sent to president obama by the republican senator conference in 2009 which said, we expected to be consulted and i prove of all home state judicial nominees. that letter wasn't just about the blue slip, it was meant to show president obama that the republican conference was united, that we had collectively

filibustered nominees for whom there was not a consensus. but th we also believe the democrats need to hold obama nominees to the same standard they forced on president bush. it's also worth mentioning that my democratic colleagues in recent years have a record of using the blue slip aggressively to block highly qualified nominees. yet they accuse republicans of blocking 18 of president obama's nominees through the blue slip, leaving aside that many of these nominees didn't receive hearings for reasons besides the blue slip, democrats used the blue slip to try to block hearings for 2007 for president bush's nominees, republicans blocked none of president obama's nominees via the blue slip during the first two years of his presidency. we are less than a year into

president trump's first term and already my democratic colleagues have tried to block a number of his highly qualified nominees. this brings me to my final point, some of my colleagues and outside groups have criticized me for allegedly abolishing a senator tradition, as i explained, twice last two weeks ago, that's not true. i'm restoring the traditional policy and practice of the vast majority of my predecessors over the past two years, and i think i have pointed out that two of the 118 chairman in 118 years have had a district rule and only a strict rule on blue slips. but it's also revealing that these same colleagues and groups supported abolishing the fi filibuster for lower court nominees in 2017, a rule not just a practice that was more long standing and established than my immediate predecessor's strict blue slip policy.

i'm going to -- i've got some more statement here, but it deals with another nominee. and so now i turn to senator feinstein. >> thank you very much, mr. chairman. i think this is going to be difficult but i think these words that i say have to be said. as you know, when my staff first learned of the plan for this hearing, i wrote a letter to you, that letter is dated november the 16th. >> i just read it yesterday. >> in my letter, i raised concerns that there would be two circuit court judges at a single hearing and that there would be a possible change to how blue slips were going to be treated by the committee. i ask that you reconsider and the democrats be treated the same way as republicans have been treated. i did not and do not ask for special treatment or unique

consideration. rather, i simply asked that the committee follow the same traditions and accommodations that have been in place for over a century. i'd like to enter into the record the letter i sent to you, mr. chairman, on november 16, and the letter that all committee democrats signed and sent to you the following day, november 17. >> there shouldn't be any objection to receiving them. >> unfortunately, the decision was made to change the committee's blue slip policy. although i had asked in writing about this hearing, and possible changes to blue slips on multiple occasions, i was not alerted in any way about your decision to end a 100-year policy without any notice to this side of the committee. specifically, on thursday november 16, in the late afternoon, when i and most members were heading for planes home for thanksgiving holiday,

the announcement was made on the floor of the senate. that very morning, within this committee, we discussed how the committee was going to handle fbi background investigations. perhaps as a gesture, you could have announced your decision then so that the move could have been discussed and debated here in the committee. but we were not given a chance to respond until now. so today, i need to say the following. as each member of the senate recognizes, the states we represent are diverse, the blue slip was instituted to ensure that those nominated for lifetime appointments reflect our home states particular needs as well as a legal bar in our communities. what's more, the blue slip encourages meaningful collaboration and consultation between the white house and a state's senators.

all senate republicans wrote a letter in march 2009 just two months into the obama administration, which stated, and i quote, if we are not consulted on and approve of a nominee from our states, the republican conference will be unable to support moving forward on that nominee, end quote. the only difference between then and now is who sits in the white house. in fact, when senator leahy was chairman of this committee, under both president bush and president obama, the blue slip was honored equally. if a judicial nominee did not have two blue slips from their home state senators, that nominee did not move forward. the nominee never received a hearing. this was also the policy the first two years when chairman grassley took over the

committee. in 2015, and 2016, there were nine judicial nominees, four circuit court nominees, and five district court nominees who did not have blue slips from home state senators. none of them received a hearing. again, what's troubling is that the only difference is who sits in the white house. there is no pattern of obstruction. the trump administration has been in office for less than one year. no president has had as many circuit court nominees confirmed in their first year since richard nixon and that is fact. of the nine circuit court nominees that have been confirmed, all had their blue slips returned and five were from democratic senators. the democrats on this committee are simply asking for blue slips to be respected, just as they

were for republican senators. or said another way, all we ask is to be treated the same way in the trump administration as republican senators were treated by the obama administration. no more, no less. now let me return to the nominees being considered at today's hearing. justice davis strauss is a justice on the minnesota supreme court. i would note last year, there were two state supreme court justices, elizabeth taylor-hughes from the kentucky supreme court, and myra selby from the 9th circuit court. two nominees who were never before this committee because one or both of their home state senators did not return blue slips. in addition the committee is considering kyle duncan's nomination to the fifth circuit. my understanding is that mr.

duncan has worked for a significant number of high profile cases, for example, as the counsel general for the beckett fund for religious liberty, mr. duncan worked to undo a provision of the affordable care act that requires employers to provide health insurance with contraceptive coverage for their employees. specifically he was the lead lawyer for the hobby lobby company and argued that corporations had the same first amendment rights that individuals did. the corporations could impose their religious beliefs on employees by denying female employees access to preventative health care, insurance coverage for contraception. mr. duncan also filed a brief in favor of texas laws restricting abortion access, one law would have required doctors that

provide abortions to have admitting privileges at a hospital within 30 miles, and another law would have required any clinic that provides abortions to meet the the american mental association and the american college of obstetricians and gynecologists oppose these laws as medically unnecessary. additionally, these law us would have cause ed 75% of abortion clinics in texas to close. the supreme court rejected these laws and held and i quote, constitute an undue burden on abortion access and each violates the federal constitution, end quote. mr. duncan also argued against marriage equality and

represented a virginia court clerk who refused to issue a marriage license to a same-sex couple. mr. duncan defended north carolina and texas' laws and made it more difficult for eligible citizens to vote. in fact, the fourth circuit held that the north carolina law targeted african-american voters. quote, with almost surgical precision. end quote. what is telling about mr. duncan's record is how he has been a zell louse advocate for many, many social issues. i think his record raises questions as to whether he can be impartial and follow support precedent, even when he disagrees. the committee has already received letters from several groups regarding mr. duncan's nominations, including a letter of opposition from 35 l xwrks bt

groups who argued quote, in light of his words and actions, it is quite unfathomable that mr. duncan will administer j justice equally to litigants of various racial backgrounds and all genders and sexual orientations. end quote. thank you, mr. chairman. >> i hope i can get people to read the two speeches i gave two weeks ago on the senate floor beside what i said now, but i think i've made it very cloear. p i don't think people list p well, but it soupds like we're doing away with the blue slip policy. i want to make it very clear that we're keeping the traditional blue slip policy as it's been practiced by at least 16 out of 18 chairmen in the last 100 years. senator kennedy and then senator franken then to the introduction by our members of their works. senator kennedy. >> mr. chairman, since my

opening statement is both an opening statement about the blue slip policy, as well as an introduction of mr. duncan, would you mind if i deferred to senator franken, who i think is going to talk exclusively about blue slips then i could follow senator franken if that's your okay. >> thank you, senator kennedy. justice, good to see you again. and thank you for the opportunity to speak, mr. chairman. i'd like to address your decision to no longer require blue slips from both home state senators before scheduling hearing for scircuit court nominees. mr. chairman, the blue slip exists for a reason. under both republican and democratic chairmen, this committee has deferred the home state senators when considering judicial nominees because senators of both parties recognize that the blue slip plays a critical role in

ensuring clab rag between the senate and the white house. when the process works at it should, the white house joins with home state senators to identify nominees. and when the president and the senators are in different parties, that should mean identifying consensus candidates. you said so yourself. in 2015, you wrote in the des moines register that the blue slip is designed to encourage quote consensus between the white house and home state senators sh, bub reaching consensus means requiring meepingful consul station and in this case, there was no some consultation. i'm under no illusion that you -- who have nominated the type of jurors that a democratic president would put forward. but the white house should be sitting down with senators on both parties. however prior to justice strauss' nomination, i took part in just two conversations, a singing staff level conversation

with the white house counsel's office and they made clear their intention to nominate justice strauss sfr the outset. he is a devoted public servant and i committed to reviewing his record in full. however, during both conversations with the white house, i also expressed se vove reservations. i voiced concerns about his professional experience, which signalled a very conservative view of the law and i also expressed concern that after then candidate trump had outsourced the job of identifying potential supreme court nominees to the far right heritage foundation and the federalist society, that the groups included justice strauss on their short list. none the less and despite making clear to the white house in each conversation that i doubted i could support the nominee, the white house proceeded to

nominate him. mr. chairman, in light of the white house' disrespect for the senate's role, i voice my objection using the only means available. by withholding my blue slip, but despite the fact we hold different political views, i hope you would respect my decision and protect the prerogatives of your colleagues. instead, you decided to aban don a long standing process. during the obama administration, senate republicans used the blue slip to block 18 judicial nominee, including six circuit court nominees. no nominee f receive hearing unless both senators returned a slip. the policy remained in place even during the six years when democrats controlled the senate and senator leahy chaired the committee. it was honored by this committee even when senators returned blue slips and later rescinded them an when they refused for nominees they previously approved for lower court or had

recommended to the white house in the first place. but u most important lirly, republican senators refused to turn in blue slips despite fact they were consulted. when the majority leader refused to return a blue slip for a six circuit nominee, he said, quote, i've had a back and forth with the administration for a year and a half or two. over that particular seat. let me say that again. a year and a half or two. mr. chairman, that stands in stark contrast to the consultation that i receive. i could go on, but the point is that no matter how one felt about the decisions of those republican senators, their decisions were respected by the chairman of this committee. mr. chairman in the same des moines register op-ed, you wrote that quote, senator leahy, my immediate predecessor, steadfastly honored the tradition even as some in his own party call for its demise.

i appreciate the value f o the blue slip process and also intend to honor it. well, chairman grassley, if this committee is going to honor the blue slip, it should honor it consistently. not just when it is politically expedient for the majority. now that members of your own party are calling for the blue slip's demise, i would hope that you would protect the prerogative of all senators. republican and democratic alike. but in absence of meaningful consultation and in the face of disregard for the senate's institutional role, i do not think that the senate should seat its power to the executive branch and end this long standing custom. thank you, mr. chairman, for the time. >> is that right kennedy. >> mr. chairman, with your permission, i will now give an opening statement with respect to the blue slip as well as an introduction of mr. duncan. >> proceed. >> mr. chairman, ranking member and my esteemeded colleagues, i am look iing forward today to m

kyle duncan's testimony. and i would like to introduce him to esteemed committee. >> let me talk about the blue slip. i return ed a blue slip on mr. duncan. perhaps it was somewhat unorthodox because i indicated that while i d did not want to deny him a hearing and i do not, i was uncertain, undecided, about his nomination. and allow me to explain why. i had been b through mr. duncan's questionnaire very carefully. very well written. there's a part that i, i slightly disagree with with. it's on page 50. questionnaire seems to imply that mr. duncan's name came from senator cassidy and me. senator kennedy. and at least from my point of

view, that is not accurate. i first learned about mr. dun n duncan's nomination when i received a phone call. actually, a series of phone calls from mr. don mcgwan, who is white house counsel. and mr. mcgann was very firm. that mr. duncan would be the nominee. to the point that he was on the scare side in one conversation of being polite. i want to give mr. mcgann credit. he came back later and apologized, but his firmness, he did not relent on. so the truth is that i don't know mr. duncan very well. i'm looking forward today to learning more b about him. here's what i do know.

number one. mr. duncan is staunchly and vociferously pro-life. so am i. i like that about him. i know some of you don't. in fact, i don't think i've knowingly voted for a nominee coming out of this committee who was not pro-life. number two. mr. duncan is staunchly and vociferously pro religious liberty. i like that about him. i don't think i've knowingly voted for a nominee coming out of this committee. mr. duncan has been nominate d o fill a seat that has traditionally been a louisiana seat on the united states court of appeals for the fifth circuit. this, this far below the united states supreme court.

i had the honor of clerking for a louisiana judge on the united states court of appeals for the fifth circuit. number four. number four. mr. duncan is a washington lawyer. number five. i have received scores of phone calls from experienced, accomplished, whip smart, pro-life, pro religious liberty louisiana lawyers and judges. i got another one yet this morning who have asked me why i would support a washington lawyer for this seat over them.

one of those applicants asked me directly, what am i? chopped liver? so i've got to answer that question. that's what i'm hoping kyle can help me with today. i say this with as much respect as i can possibly muster. i can hope, i hope that he can demonstrate to me today that he is the second coming of justice holmes. or justice scalia and not the second cousin of somebody who is politically connected in the washington swamp. thank you, mr. chairman. >> senator cassidy. >> mr. chairman, madam ranking memb member, i come today to voice my support for kyle duncan to serve as a judge for the united states court of appeals for the fifth circuit. he's well qualify and prepared. he's here today with his family.

his wife, martha. four of his children, joseph, thomas, michael, rosemary in the beautiful red dress, and 4-year-old andrew is not here. mr. duncan was born and raised in baton rouge. a graduate of mckinley high school, an inner city school that my children attended. my son graduated from that i can actually hear their band on friday night as they from my front door. trz he went on to get his law degree, sorry, skipped something. he graduated from louisiana state university. and then went on to get his law degree from lsu's paul m. abear law center, where he was executive senior editor of the law review. after law school, mr. duncan clerked for john dewy jr. on the u.s. fifth circuit court of appeals and went on to further his education by earning an llm

from columbia university. extremely well qualified. he's a crudcued eck appearance l three state. he served as assistant solicitor general at the texas attorney general's office. taught about the university of mississippi school of law in oxford, mississippi then went on to be a special counsel for the state of louisiana before entering a successful private practice. throughout his career, mr. duncan has been involved in a variety of civil and criminal cases and has wide subject matter expertise that has prepared him for a seat on the circuit court. senator feinstein found fault he remitted hobby lob b by, but in my mind, since the supreme court agreed with hobby lobby, that means the constitution's meaning was advanced. this is a badge of honor.

criminal krots, section 1983, adoption, false imprisonment, ada regulations and the list goes on hooechlt be well prepare ed from day one to handle any case. he has extensive litigation experience in federal and state courts including arguing cases before the u.s. supreme court, which i gather is what has brought him to this area. he has also appeared before the fifth, tenth and circuit courts. i have ever confidence he will continue to excel in that role. he has the ability to understand complex litigation and the integrity to rule fairly based on the facts as presented in the law as written. now let me peek speak a little bit about his selection process. because senator kennedy, who is my good friend, kind of has raised questions about that.

i'm a gast row int roll gist, like what do i know about the law? so what i did is i appointed a committee of attorneys, business folks, who would then make the selection for us. we took 12 members of louisiana, most of them attorneys, from across our state and formed a committee in which all applicants for this would come before. there's like 16 different people who applied for this, maybe more. of those, all excellent. they selected the three best. among their criteria are do these people represent louisiana? and are if you will, i think as senator franken said, the kind of atmosphere of us. and those 12 attorneys chose mr. duncan along with two or three or four other people whose names i submitted. those representatives of the legal profession in my state chose mr. duncan as being among the best of the best.

senator kennedy had a chance to look at those. we then submitted them to the white house and they those among that list. i did not designate. rather, the committee chose. i felt like this is the way to remove politics. it is at arm's length from me. it removes politic and has a chance for getting the best person. it has democrats on it. businessmen and women of varying ages across the political spectrum. a resume may look good, but a dr. -- is better than a resume or gast row int roll gist. he is the caliber of jurist our country needs. his character shines brightly at a time when our country needs to see good men and women using their talents for public service

and the good for others. i recommend kyle duncan to this committee and urge a swift confirmation through this committee and the senate. thank you, mr. chair. >> thank you, senator kennedy. now congressman kelly. for the -- >> senator cassidy, mr. chairman. >> it says kelly right there. >> you called -- >> me kennedy. >> my wife makes that mistake sometimes. bill holland for re-election. i think he wants that corrected. >> thank you, senator cassidcas. now representative kelly for a office of patent and trademarks and mr. yancu. >> good morning. >> i appreciate having the honor of introducing andre to understa undersecretary of congress. one only needs to read through

his resume to see that he is more than qualified for this administration with the administration. he has a stellar academic record as well as all the professional credentials as one would need. he holds three degrees with a long list of legal successes and professional accomplishments. he attended ucla r for all three degrees. got his bs in aerospace engineering in 1989. ms in 1990 and law school in 1993 and finished all three degrees with top honors. before law school, he worked as an engineer at hughes aircraft and designed satellite antennas. one of his proudest moments was being part of team that received the innovation award for the development of a new shape reflector. while a scientist of heart, since the beginning of his legal kcareer, he has represented clients across the technical and scientific spectrums. he has appeared in many different courts at the uspto

and itc. he has published extensively on property matters including modernizing the u.s. patent system. in addition, he has recently spoke many times on these issues including receiving various industry awards. the firm has been very successful. in 2016, ranked number one. he has taught a course at ucla for the last several years. what i find more interesting about him than anyone else and i woke up this morning about 4:30. i've known him for six years. i was introduced to him by my daughter-in-law, who worked as his firm. who said you have got to meet this couple. they are absolutely increde bable. this is the one. i don't get to california xuaof,

but if i'm there, i'd love to meet them. so many of us are american citizens. he was born in romania. his father for 25 years was trying get to america. for all the reasons we hold america near and dear. 12 wreers ol whyears old when h. knows german. doesn't speak a lot of english. here's what's important. after the last election, i got a phone call from andre. he said i would really like to serve in the administration. i said why, why would you love the private sector where you're so successful? he said it's my turn to give

back to the country that gave me everything. i thought to myself, this is who we are. as a people. this is who we are. when we have the opportunity for somebody b to step outside the private sector and willing to come in and work in an order to make america successful and great again, isn't this what we're looking for? isn't this who we're really searching out for every day? he's going to go i believe into law. i find it interesting, ariella is going to follow in the footsteps of her mom, who's a doctor. she wants to be a doctor, too. the last two years, she's worked as a teacher fehr teach america. she's also just received her commission in the united states air force. and i look at this and i think isn't this the american dream? isn't this what makes us who we

are? now andre's father is passed away. and andre's mom is still alive and she's watching, so thank you so much for what you did and the person you raised. i look at andre and luis and i say thank you so much you're willing to come here and serve. and to his father. i know you're not here physically with us. but i know you are here with us today. to watch your son go through this process. so i just feel so fortunate to be here. i feel so blessed to be here. i look at this young man and i say this is the guy. at a time when we so desperately need people like him. so i just, i can't tell you, i so strongly support his nomination and his getting appointed, so thank you so much. thank you for your time. i neeld yooeyield back. >> now senator klobuchar. >> thank you very much, mr. chairman. before i introduce minnesota supreme court justice david strauss, i want to personally share in the views of senator

kennedy and senator franken and stein stein. i believe that justice strauss deserves this hearing because of his credentials, support in the legal community. many of who can are here today in minnesota. i am concerned that today's hearing goes against the -- senator franken did not turn in his blue slip and that should have been respecteded. i've said from the beginning that every senator has a right to object to a judicial nominee. and i believe this right should be respected no matter what party the senator is fromened i see this as a key check in balance. i'm glad the chairman is going to keep this in place, but i

hope we can continue to negotiate this so we don't see this happen again. now to a happier part. the go zux. i half the opportunity to substance abu introduce him. he has a distinguished record of public service in our state. as senator franken noted. he has served on our minnesota supreme court for seven years and has been nominated to the eight circuit. we also welcome his wife, heather, who worked at a social services worker in minnesota for the last five years. she's now at new way house and focusing on helping people with substance abuse and mental health problems. the strauss' live in the western suburbs where i grew up and in

fact, their son, brandon, is a senior in my high school. so go, trojans, right? at a high school and their other son, benjamin, is at gleeson lake elementary, just a few miles down the road from where my mom taught kindergarten and second grade, so i welcome both of them here. justice strauss is the grandson of holocaust survivors and i know he is proud to have so many members of the jewish committee here, including former senator bos wish and also, steve hunting, the head of the ju dew relations counsel and the dakotas, thank you. and i also wanted to note that former head of the minnesota bar association is here in support of justice strauss. so he was born in kansas.

he attended school there before practicing law in washington, clerking on the supreme court and later moving to minnesota where he served as a professor at the university of minnesota law school. there's a letter i'm sure the chairman will put on the record of many law professors of different political stripes supporting him. he got a major teaching award there one year and then practiced at the law firm of faye gree bennen, where my husband practiced. he taught at the law school for six years. his work on the bench has earned him the respect of many on the bench. he is well qualify ied by the

american bar association n. the cases where there is dissent, he sided with the majority and in the cases where he did, a third were with justice page. i also want to comment on the fact that justice strauss' nomination comes before us during an unprecedented time in our country's history. we are witnessing a singular moment of constitutional and democratic unease. foundational elements of ore dmok democracy, i have been questioned, challenge and undermine. i have no doubt that he respects an independent judiciary and the critical role in plays as a check on the exec ty and legislative branches. i by no means agree with every case that he has decided. we'll talk about some of those today. but i believe that we have a shared respect for the rule of law and our judicial system.

i believe in some small way, it is important that we respect those that we don't always agree with. because we must restore that respect for our courts and in this body and this n this committee for courtesy and cooperation. thank you and thank you for your public service, justice strauss and welcome to this committee. >> now senator cornyn and cruz to introduce rodriguez. >> thank you, mr. chairman. before i introduce d mr. rodriguez, mr. duncan, it took me a while to make the connection, but i had to rummage back through your resume to remind me you worked in the solicitor general's office when i was attorney general of texas, so it's good to see you and learn of your successes since that time and welcome to your family as well. it's an honor to introduce fernando rodriguez.

as i was reading a new book of justice scalia's speeches written by his son and ed whalen, there was one in particular that comes to mind when thinking about somebody like fernando rodriguez. he talks about the fact there are a lot of smart people who have no judgment or smart people that have judgment but have no character. and the importance of all three of those. and that what really counts is being smart, knowledge, judgment, and character and i think mr. rodriguez represents those. he's the president's nominee to be the judge of the southern district of texas, the brownsville division. congratulations, mr. rodriguez, to you and your family. m-- was posed to be here, but de to the last minute change of

plans, he is not included, but i did want to recognize him and note the changes made to him and his family. mr. rodriguez grew up in the rio grande valley, close to where he will serve as a federal district judge, but graduated from law university and was the first in his family to finish a four-year college. he went to yale undergraduate then u.t., university of texas, where my daughter attended. he graduated with honors and made law review. i guess the yale connection i understand now between you and justice nathan heck on the texas supreme court where i served. the chief recently called in one of the best clerks he's ever had, which is high praise from chief justice hecht, who is a very discerning and demanding. he then went to work were baker

botts, one of f the leading firms in the united states where he worked for 11 years. in his educational and profe professional attainment, he is like many of the other highly eququalified nominees that we'v considered. but he's actually followed a higher calling. and for better part of the last decade, he's worked in bolivia and the dominican republic for the international justice mission. he led teams to intervene directly in criminal cases of child sexual assault and bolivia and sex trafficking in the dominican republic. in the latter, he's helped rescue more than 110 victims of abuse and secured 26 convictions since 2015. now president trump has nomin e nominated mr. rodriguez to serve as a federal district judge. this reflects the process of the

bipartisan texas committee that senator cruz and i have appointed to help us screen and vet potential nominees for these important positions. i'm heartened his career of achievement in public service will be a model to students and lawyers throughout our state. thank you, mr. chairman. >> thank you, senator cruz. >> thank you, mr. chairman and i'd like to take a moment at the outset just to thank for holding this hearing and to say that i think your decision on the blue slips was the right decision to make. i would note as you observeded in your opening remarks that the practice of blue slips has been employed for 100 years and in that century, only two chairmen of the judiciary committee, james eastland and pat leahy have treated it as an absolute veto barring a hearing. every other chairman has agreed

with the decision you made today that not returning a blue slip is a statement of a home state senator's objection to a particular nominee, but it doesn't precleed a hear collude a hearing and the committee voting on that nomination. indeed, i would note that former judiciary committee joe biden, whi which by all accounts, remains a democrat in good standing. expressed a policy quite clearly to the first president bush where he stated that a negative blue slip would be quote a significant factor to be weighed by the committee, but that it would not preclude nomination of the nominee. for all of our democratic friends who are saying what you did is unprecedented with history, it is precise lie the biden standard and the standard that has prevailed on this committee with the entire

century with the exception of two chairmen. i think it is particularly appropriate you make this decision in this case. i think justice strauss and mr. duncan are both exceptionally well qualified nominees. they are precisely the sorts of nominees we should be considering and in the instance of justice strauss rather than he's a member of the federalist society, clerked if for thomas and said support of thipgs of justice scalia. now i think that's particularly appropriate given the president campaigned promise iing to no, ma'am night judges in the mold of scalia and thomas. that's an idea logical objection. that can be a basis for democrats to choose to vote against him, but i do not think it should bar those from voting against him. so i want to commend you for taking up the nomination and giving us the opportunity to consider well qualifies

nominees. now with that, imt to turn to groous introducing fernando rodriguez, who is another, a nominee we're consider if the federal district court in texas. he has been nominated in brounzville, at the southern tip of the state. fernando is a man who's dead kalted his life to public service and i'm confidence that he'll continue to serve with honor in the next stanl of his career as a federal judge. he grew up in the rio grande valley. he became the first person in his family to graduate from a four-year college. he attended yale. can which i suppose we'll have to forgive him for. after graduating from yale, he joined teach for america. after doing so for three years, he decided to attend law school

and honor frs the university center tech of law. he clerked offshore drilling then justice now chief justice nathan he can, one of the most esteemed jurists in the state of texas. he then joined dallas office and made partner in 2006. for many, becoming partner at a law firm, especially one with the esteem of baker botts, would be their final career achievement in a crowning way to finish out their career. but u not for fernando. after just three years as a big law firm partner, he decided to quit to return to a life of public service. he joined international justice mission. an incredible organization that fighting human trafficking across the globe. this committee has spent a lot of time focusing on combatting human trafficking, while fernando put action to that objective. his wife and four children, they moved from dallas to bolivia. and then the dominican republic.

where fernando led teams to rescue victims of child sexual assault and human trafficking. in his time in international justice mission, fernando has helped rescue more than 120 victims. and has helped convict more than 40 criminals. this is the character of the man we see before us today and it's why i was proud to join senator cornyn in recommending him to the president and believe he will serve as a district judge with honor and integrity. thank you. >> thank you. would mr. duncan and justice strauss come to the table and before you sit, would you please because we have the tradition of swearing people who are nominees. so do you, do you affirm that the testimony you're about to give before the committee will be b the truth, the whole truth and nothing but the truth so help you god? thank you. please sit down.

now we will give you in your before we ask questions, give you an opportunity starting with mr. duncan. for any statement you want to make. the introductions of family and friends, then justice strauss to do the same thing. and then we'll have questions. >> thank you all committee members. i want to thapg senators kennedy and cassidy for the introduction of my wife and children. i have many other family here including my mom, my dad, my sister and brother and numerous others from louisiana and elsewhere. to many to mention by name abut i'm fwraufl for their presence. senator kennedy, something you said just caused me to pause. i'm grateful for this hearing. sounds like from your opens

comments, you were disrespected this this process and i deeply regret that. i am, i deeply respect your advice and consent that you and your fellow committee members will get and i'd be delighted to answer answer your questions. >> i would like to thank the president for nominating me to a cease on the united states court of appeals for the fifth circuit. it's home to me. i've represented the state of louisiana and other parties in that court many times and i've had what i think is probably the unique honor of being a lawyer for all three states in the fifth circuit as senator cassidy pointed out. i started my career in the texas solicitor general's office. i was a law professor at the university of mississippi and appellate chief of the l.a. l department of justice. i'm profoundly grateful to be nominate d to a seat on this great court. like you and like senator

kennedy, i clerked for a wonderful fifth circuit judge in lafayette, louisiana. in the time i have remaining, i'd like to recognize some people who are not here today. first as i mentioned, judge john dew jr. was a judge i clerked for on the fifth circuit. as i understand, he is caring for a sick family member and could not be here. he was a wonderful judge. who's taken senior status and has really influenced my life and professional career. second, i'd like to recognize my wife's mother, lois, who passed away unexpectedly in 2009 and who is very much missed by her family. third, i'd like to recognize my friend and my mentor, greg. the texas, first texas solicitor general and i worked fwr him as a young attorney. greg was a superb attorney. a good friend and mentor to me. he died tragedy ically in a pla

crash a few years ago and i know he's missed by his wife and three sons. i got to see his son just the other day for the first time in many years and it brought back a lot of memories. finally, i'd like to recognize my grandparents. on my dad's side, charles and june green. on my mom's side, vince and sarah nola, they were remarkable people. they've passed away in the last few years. they're very much missed. they showed me a great love and kindness when i was growing up in baton rouge. and i'd like to especially like to recognize my grandfather, vince. here's a man whose parents immigrated to louisiana in 1905. i saw the manifest of the ship. from italy. and my grandfather, vance, he was called vj by his family. he supported his wife and seven children as a roofer in south louisiana. and i think i've worked hard in my life, but i've never worked

nearly as hard as my grandfather did on any given day. he was a great man. intelligent man. although he had to leave school in the eighth grade. he was a role model for me. and i know that if he could see us here today, he would be proud of me. and so with that, i want to thank you again for holding this hearing. a and i look forward to answering your questions. >> justice strauss. >> first of all, thank you senator klobuchar for your very kind introduction. thank you as well to chairman grassley and ranking member feinstein for hold iing this hearing. to the other members of the committee for your consideration and to the president for nominating me. i would like to start by introducing my guests. first, my family. including my wife of 20 years, heather, a licensed clinical social worker who works with those suffering with addiction. also here today are my two boys. first is brandon. who's 17 and is a senior. and my 10-year-old, ben.

who decided to come despite the fact that it meant missing basketball and soccer practice this week. second, i am honored the number of minnesotans have joined me here today, including rudy bosish and robin wallpert, the immediate past president of the state bar association. also here are charlie now an, chuck webber and all prominent attorneys. thank you so much for coming. i would also like to recognize the many people who supported me throughout the years. who could not be here today. including my family, my friends and my colleagues. past and present. in particular, i would like to recognize my grandparents, who are holocaust survivors and whose sacrifice has allowed me to be here today. i'm incredibly honored to find myself sitting in the same seat

as the three judges for whom i clerked. as a young law clerk, i could not have imagined a career that would lead me to where i am today. i am deeply humbled by this afternoon. if confirmed, i will remain committed to interpreting and applying the law in an impartial manner. as i have done for the past seven years as a justice on the minnesota supreme court. thank you and i look forward to your questions. >> thank you. >> we'll have a five-minute round of questions. going to start with justice strauss. in several of your opinions, you've discussed your role as a judge. you've noted that quote, my role as a judge is not to implement my own policy preferences. but to interpret the law as written, end of quote. and you've observed that the minnesota supreme court is not quote a junior varsity legislature.

so i think i know why, what's behind your statements, but would you elaborate on those and i think what you're trying to say is what judge's role is different from a legislature. gl. >> yes, chairman, grassley, those are about the separation of powers. we've had a number of those cases over my last seven years. i think what i was trying to get at, i know what i was trying to get at in those cases is that judges need to have a he wialth respect for the other branches of government. we have a tripart government and judges need to recognize the legislature's are the ones that write the law. the executive branch often implements the law and judges are by constitutional design, supposed to decide disputes and those cases, i think we're trying to recognize the robust separation of powers between the various branches. >> in your seven years, there on that supreme court, you participated in over 750

decisions. of those, my research says you dissented in approximately 50 cases. over 20% of those were joined by at least what other people have characterized as liberal justices. you've also joined separate opinions by several liberal justices on multiple occasions. it seems to me you aren't voted consistently with justices pointed by either republicans or democrats. and how did it turn out that way? >> that's correct, chairman grasslgras grassley. i take each case on its own. i read the beefs, listen to the oral argument and try to figure out what the right answer is. i try to figure out what result the law compels and i apply that law to the facts in in a given case and sometimes, i end up agreeing with republican

appointed justices. sometimes, i end up agreeing with democratic appointed justices. but in all cases, i use my best judgment and i try to figure out what the law compelcompels. in fact, one of my colleagues who known as liberal justice anderson, i know senator klobuchar mentioned justice page this morning. mentioned that one of the reasons why he's been so supportive of my nomination is because i'm objective and open minded and i take each case as it comes. >> mr. duncan, i've been told that you were louisiana's first ever solicitor general. and you accepted that position. so why and how has that position prepared you for a seat on the fifth circuit? >> thank you, senator. in that position, and in that position, i was able to represent my home state of l. louisiana in some very difficult and high profile cases in the fifth circuit. in the louisiana support and the

united states supreme court and when you're in that position and you're having to make arguments in difficult cases, you, my approach was you have to take the politics out. you have to focus on the law. you have to think carefully what is per swas toif a court. you have to make the most reasonable and zealous argument that you can within the bounds of precedent for your client. so you have to think about what's important to the judges who you're arguing for. you have to honor and respect what their role is. and their role of course is to follow precedent. prz that would be a loser of an argument. you have to go in a court and explain to the judges what the law means. i've had to do that in some difficult cases. cases really on both side os f the political aisle which i hope to talk about.

i've had to do that in difficult cases that have been in the media. and i've had to focus on the law. and i think that prepares me to do what a judge does, which is to focus on the law and not on politics and not on policy pef preferences. >> my last question for the two of you for mr. duncan. senator kennedy pointed out that your first amendment and religious lib irty case, but the docket has a gator variety of cases, so please describe the experience you've had working on other type of cases that you'd like to see as a judge. >> certainly senator grassley. >> beginning in texas and louisiana, i've dealt with the whole gamut of cases that would come before the fifth circuit. i'm thinking of cases on sovereign, on qualified immunity.

there's not be third amendment cases. i've handled cases for the government, i've handled cases against governments. i've handled cases on the civil docket and the criminal side. i've had a great deal of experience. the fifth circuit is one of the court on general jurisdiction and i was fortunate enough to teach that subject to the university of mississippi law school. one of my favorite subjects. >> i'd like to make a comment

about young team here. they jeppesy sit in the front row, so i have an opportunity to observe them and just want to say that i've never seen better behaved young people your age here today. so you get the gold star for the year so far. now to the harder part. in 2016, you submitted a brief in support of a texas law which imposed a strict requirement. you argueded, voter identification requirements, not only help prevent voter fraud, but also foster public confidence in elections. thus facilitating the peaceful orderly transfer of power that's a hallmark of american dm democracy. what evidence did you have that voter fraud is a widespread

problem? >> thank you, senator feinstein. i've been involved in a couple of different voter id cases, one for north carolina and texas. as you point out. we were thinking of the crawford -- they prevent the opportunity for voter fraud even if voter fraud goes up detected. that's what we thought about in other cases, but i recognize those are very difficult cases. i was asked to file a petition for the state of north carolina. that's one of the most difficult i've dealt with because you are dealing with a low court opinion that was something like 485 pages long. that meticulously went through and found that the voter id and other laws it issued there

really didn't lower minority participation then you had a participation from the fourth circuit that went radically the other way. we were just hoping to get that case to the supreme court so they would gif us the proper analysis. it was just a very difficult case. >> what do you believe today? >> sorry? >> what do you believe today about voter fraud? do you believe it's a big problem or as most of us do, that it's minuscule? >> i don't have a personal view on that, senator. i believe what the supreme court said in the crawford versus indiana decision, which is that hawes cannot prof laktical ical prevent fraud. >> well and you think that's a justification for passing a law? that it can act so you pass it?

i think that can be one vusification. that severely restrict women's ability to health care by requiring physicians to have admitting privileges at a hospital within 30 miles of a facility where abortions are performed. you argued the requirements were medically reasonable and focused on enhancing the safety of women seeking abortions. on what medical evidence did you base your conclusion that admitting privileges enhance the safety of women? >> senator, as i recall, that was a brief on behalf of a number of physicians and surn surgeons associations. as i recall, we went deeply into

hospital privileging guidelines for recognizing when privileges are appropriate. we were representing really parties in that case making an argument about ef kwasi of toews laws and we recognized the supreme court came to a different decision. that's what i've done for a good part of my career is make characters for parties in litigation, but i've recognize ed there's a really fundamental difference between being a party for a client, a lawyer for a client where you're making arguments in the client's interest or in the my my casse's spres and being a judge where the judge is to apply the law, the precedent of the supreme court or whatever circuit you're on, without any consideration of personal preference. or disagreement. so i recognize that, that's a fundamental distinction and i can give you lots of examples from my career. >> well thank you, but let's just go back to this for a

moment. when the supreme court struck down the texas law, the court noted quote, when asked directly whether texas new of a single instance in which the new admitting privileges op tbtaine better treatment, texas admitted there was no such evidence. were you aware of any evidence? >> senator, this is let me just make it clear what position i'm in here. i currently represent louisiana in a similar case. and so i've got to be careful what i say about pending litigation in which i represent a party. i know you appreciate that. but let me try to answer the question this way. your view we've taken in litigation is that that precede

precedent, i think justice briar's opinion made that a big part of the case. that it was looking at the record facting that were found by the district court. i believe it was judge yakel on that case in austin. and our, the position that we were taking in a similar case is that there could be different record facts and in fact, we're arguing to the circuit right now, there are different record facts in a different case that should lead to a perhaps a different outcome. that's our argument. >> okay. one question, justice strauss. my time is up. i'm sorry. thank you. >> except for senator leahy and ranking member feinstein and former senator hatch, i'd like to have people if you asked your question when the last second and you get your request request answered, or when it's answered, as long as you start before the red light goes on, you can ask your question. senator kennedy.

>> thank you, mr. chairman. mr. justice, mr. duncan, you both have incredible resumes. i enjoyed reading about both of resumes are your families. and i agree with everything senator feinstein said. i know you meant well, mr. duncan, but you got nothing to apologize to me about. i don't feel disrespected, and if i did it didn't matter. i used to be the tax collector for the state of louisiana, and this stuff is patty cake compared to that. it's been suggested that if i don't vote for you, that i'm not pro life and i'm not pro religious liberty, and i think we both know that's not the case. this is about picking -- this is a one time pick for maybe in my

lifetime, maybe not yours, for louisiana judge to sit on the u.s. court of appeals of the fifth circuit. these are not trick questions, and if you could just give mia number or yea or nay. there are a couple of things i have to get out of the way. they may seem weird to you. but base on some of the past nominees that have come before you i feel i need to ask them. mr. justice, have you ever blogged anonymously or otherwise in support of the klu klux klan? >> no, i have not. >> mr. duncan? >> no, senator. >> okay. mr. justice, have you ever described a child as being part of satan's plan? >> no, i have not. >> no, senator. >> okay. mr. justice, have you ever called a supreme court justice, living or dead, sitting or retired, a prostitute? >> i have not, senator.

>> no, senator. >> okay. mr. justice, how many jury trials have you tried at the trial level as lead counsel to ver di verdict? >> i have not actually tried a case. i've been involved in motion to dismiss case but never tried a case. >> how many bench trials have you tried to verdict? >> i have not done a bench trial either. >> okay, mr. duncan how many have you tried as sitting first counsel? >> no jury trials, senator. >> how many bench trials? >> i've done two bench trials. one in the middle district of louisiana and one in the eastern district of louisiana. judge feldman and devalve. >> both good judges.

all right. let me get this out of the way because this five minutes goes real fast. mr. duncan, you heard my opening statement. tell me what i say -- i've gotten scores of calls from lawyers back in louisiana who say, hey, you know, i'm experienced, i'm pro life, i'm pro religious liberty. some of them are judges. i'm thinking of a person, he had me call him -- what will i say to a person for example like allen see baugh, as to why i would not pick somebody who has been in louisiana for a while as opposed to picking somebody in washington d.c.? >> thank you, senator. i would start with i was born and raised in louisiana. i was educated in louisiana. i'm a double graduate of louisiana state university, both undergraduate and law school. i clerked for louisiana based

judge. but more to the point l i have spent a significant and sort of prime part of my legal career, and my reputation, defending the laws of the people of louisiana passed, and those weren't easy cases. it wasn't easy to go to the u.s. supreme court in the thompson v tommic case and try to over department turn that judgment. >> let me stop you. because i'm about to run out of time. >> sorry. >> i have 30 seconds. we have a tough chairman. i want to ask you a hypothetical question. purely hypothetical. let's suppose you were a united states senator, and you were sitting on the judiciary committee, and a very prominent attorney in this town suggested to you that if you didn't vote the way this particular attorney wanted you to vote, that you would be punished politically.

i guess this is an ethical question. how would you handle something like that? >> if i were a senator? >> yes, sir. >> sitting on judiciary. hypothetically, of course. >> you know what, i would say something that i heard you say in another one of these committee hearings. >> i didn't curse, did i? >> no, not at all. i would say come to louisiana and run against me. >> okay. that was pretty good answer. thank you. i'm done, mr. chairman. but i would like to reserve the right, with your permission, for a second round. >> if there is a reason to have a second round, we'll have that. >> thank you, mr. chairman. senator of louisiana, i guess i'm not neither important enough

for someone to tell me how i had to vote. but i'll rely on his experience that that might happen. >> i think they thought i was new and from the south and therefore stupid. >> obviously, you don't mean that i felt that way. >> not you, of course not. >> i'm just from a small town in vermont, but i guess they weren't interested in telling me how to vote. but i do fear this committee, i've watched this committee, i've been on this committee for 40 years, served here for 42 years, eight different presidents, in both half a dozen times in majority, half a dozen times in minority. always thought of the independents of this committee. i'm worrying that independence is disappearing. it's becoming a rubber stamp for the president, something i've not seen with republicans or

democrat presidents before. we've had five hearings at the request of president trump and circuit court hearings this month alone. that's five. i put that in context of chairman grassley not only five -- >> you are right when you say i'm not going to takeaway from your time, start his time over. but one of the reasons we have three wednesdays this month. that's one reason you have more hearings than normal. because we have a hearing every other wednesday. >> i would add, finish what i'm saying, we've had five hearings this month alone. and to put that into perspective, chairman five hearings in two years in obama administration. so whether you have three weeks

or how many, we've had fourth nomination hearing in six months, with two circuit court nominees on the same panel. that's more than we are allowed in all eight years of the obama administration. and i'm concerned that chairman, one of my oldest and best friends here, has reversed his own blue slip commitment now that the republican is in the white house. the blue slip rule that he applauded and supported when there is a democrat in the white house, but then switched it with a republican. i would say in 40 years here, i'm used to more consistency in this committee. but, mr. duncan, you have litigation experience, which i appreciate.

i've tried dozens and dozens of cases before i was in the ten years before i was in the senate. i know how important litigation experience can be. but being well qualified is not always a prerequisite for this president. brett talley and others have proven that. i suspect that you are here because of your consistent advocacy of laws to ban same sex marriage. limit transgender rights. allow religious organizations to deny contraceptive coverage of employees. and we know the president has said that anyone on his supreme court short list, which includes you, would automatically vote to overturn row versus wade. now the president said you would

automatically do. every nominee tells us they respect precedent. with all that, why would we believe that you would? >> thank you for the opportunity to talk about my record, senator. >> no, just answer the question though. >> well, just point of clarification, i'm not on the president's short list. so i'm just not. and so i can't really address that. you've listed some of the cases that i've done as a government attorney and as an attorney in private practice. i could name a number of cases -- and some people may look at those cases and say those are conservative cases. but i could list a number of cases that one might look and say they are liberal cases. so i've dealt with a broad array of cases. let me give you a quick example. i supervisor litigation against the florida prison system

denying jewish inmates kosher food. and in that case the obama civil rights division came in on our side and resulted in wholesale changes to the florida prison system. there is another case in which a mosque, muslims in tennessee were about to be run out of a little town, because of discriminatory zoning practices. and we went in and got a tro to prevent that from happening. and, again the balm civil rights department justice division came in and helped us with that. so i think it would be just as easy for someone to say you've dealt with liberal individual rights cases. >> it's not liberal or conservative. when i first ran for the senate because most active prosecutor vermont ever had, my opponent said i was far too conservative to being u.s. senator. >> i couldn't agree with you more on that point, senator.

i don't look at the cases as left or right. >> after the decision same sex couples right to marry, you wrote an article that said, imperilled civic peace, we are two years since then. do you believe that justice kennedy's opinion threatens civic peace? >> senator, in that article, what i was saying was -- >> follow up to this question. >> okay. what i was simply making a plea for civility on both sides. sometimes in litigation, feelings run high. and i think it's very important for a court to make sure that both sides are respected and feel honored so that they are willing to accept the decision. >> do you believe that justice kennedy's opinion has threatened civic peace? >> senator, what i said in that article was it was very important for the supreme court to recognize that both sides of the debate were honorable

participants. and i think what i said in that article is it tried, it recognized that there were certain honorable people but i thought it could go further. i think that's a very important function for courts, especially in divisive, difficult cases, to make sure that both sides -- that not to deem monize your opponents, basically. >> i understand that. but do you think judges might consider socially divisive when determining fundamental questions, and novel issues? >> i think, well two answers to that. i think if the governing law requires an analysis of devi dedivisiveness, but in general, courts should foster civil discourse, dialogue, treat both sides with great respect. that's what i've tried to do in

my cases, treat the other side with great respect and make friends with your adversaries. >> would that change with the decision brown versus board of education. >> well, as i understand it, senator, that was unanimous division. >> two and a half years had to wait for one justice to leave. >> exactly. chief justice warren, to him, a great judiciary states man, made sure that the courts decision would foster a sap ance of that decision. especially for the supreme court. less so perhaps for circuit court. the circuit courts are not in that position very often. but still i think the judge i clerk for john dewey he had a representation on the court where the chief judge at the time was judge king, wonderful judge, aen she would come to judge dewy, because he was such a moderate person, and

peacemaker, she would come to him, and when the judges were getting irritated at each other, i guess, told me that one time, made an impression on me. he was an excellent judge. big role model for me. >> senator lee before i call on you, i feel i have to give a little bit of history about whether it's right or wrong to have two circuit judges on the same hearing. it's true that that's been said that this committee's filth heari fifth hearing with two circuit nominees. my other side sites the lee lay chairman ship and i'm not going to question what he did. but this committee has deep history before it. and that history shows that holding hearings with multiple appeals court nominees is not a rarity. this committee has considered two circuit nominees in one hearing, as many as nine times in one year. senator kennedy as chairman once

held a hearing for seven circuit court nominees. i haven't heard any complaints about that. we have held hearings with multiple circuit court nominees under both republicans and democrat presidents and under both republican and democrat chairman. so nothing new. as an example, senator hatch, as chairman, held three or more hearings with multiple appellate court nominees, at least eight different years r some of my colleagues suggest this isn't enough time to question sir qci court nom ease when there is more than one on the panel. as today i never refuse to let people ask questions as long as they want to. my colleagues also bring up the fact they don't have sufficient time to review nominees files. if bewere able to handle multiple circuit court hearings

five times for president clinton in 1998, i don't believe that it's too much to ask that we do the same number in 2017. furthermore, my colleagues have had the ability to review justice stras material since june 7th when he submitted his material to the committee. and in 1998, chairman hatch held five hearings with multiple appeal court nominees for a democrat president. there were only 74 vacancies in '98. now there are 126. >> it's important that we move excellent nominees forward. senator lee. >> i think, mr. chairman. >> go ahead senator. >> i just pointed out numbers are numbers. the two years your chairman with president obama you felt we only had time for five hearings in

two years. so we would have plenty of time to look at the people i just would like something approaching that kind of standard. >> senator lee. >> mr. duncan, how many appeals have you argued? >> senator, i've been trying to figure that out. the reason it's difficult is i've argued so many appeals as young solicitor in texas that i lost count. i want to put it north of 30. more than 15 in federal circuit courts. two in the united states supreme court, two argument gs in the united states supreme court and numerous cases on the briefs that didn't get to argument. so i think fair number. >> these are separate disciplines, trying cases versus arguing cases, are they not? >> absolutely. >> different skillset. different style goes in. in fact it's a completely different function, isn't it?

>> yes. i completely agree with that. it was a choice i made early in my career. one reason i went to louisiana to texas, law firm, and then texas sew lister general office, there was a specialty in texas that was recognized of doing appellate law. and it's a different skillset. it's one that i thought i would be more adapted to. i liked research and writing more than picking injuries i guess. >> and if confirmed to the position which you've been nominated how many trials would you be doing in that capacity? >> of course i wouldn't be doing trials. i'd be doing for what i've been doing most of my career, which is opposite side of course, which is sitting on appellate panel and listening to the arguments. and of course i'm very familiar how those courts work. i love the work of those courts. i still remember to this day my first day at the fifth circuit when i was right out of law school walking along the

beautiful marble halls thinking how did i get so lucky. the work of the fifth circuit is the a magnificent court. >> how many cases have you decided? >> we had our commissioner's office go back and look at that and at last count it was over 750 appeals decided and more than 3500 petitions for review, which are similar to petitions in which i granted on review. >> what portion of your document ket is discretionary versus mandatory? >> we hear 110 cases, on average, about 40 are combination of first degree murder appeals which come to us directly. attorney discipline cases, workers' compensation, and tax court cases. >> and here again you've been nominated to appellate court, not to a trial court. and it involves a separate

discipline. but the appellate courtroom is no stranger to you or mr. duncan. i have a couple of letters that the judiciary committee has received, mr. chairman, with regard to kyle duncan. i'd like to introduce a few of those. we received one letter from 31 louisiana lawyers. and they all say the following together, as practicing attorneys we hold a wide range of political views on both sides of the aisle regardless we all agree that kyle duncan is it exceptionally well qualified to serve as judge on the fifth circuit and make everyone in louisiana proud. i also have a letter from an lsu professor, by the name of paul buyer. he was mr. duncan's opposing counsel in some litigation involving a challenge to louisiana's statute dealing with same sex marriage. notwithstanding the fact that he was opposing counsel in this very high profile contentious

case, he says kyle duncan is magnificent nominee and make surpassing judge. please support his come nation with all your might. finally i'd like to enter into a the record a letter from 19 former sew listolicitor general. they say we all agree kyle duncan has the personal and professional qualities that should tip a phi the federal judiciary. mr. chairman, i'd ask. >> without objection, so ordered. >> thank you. >> justice stras, tell me about the difference between being a judge and an advocate and how that correlates between the distinction between exercising will and exercising judgment. >> thank you, senator. the role of a judge is to exercise judgment. one of my colleagues that was referenced by senator klobuchar

says we don't impose our will. you lay a side any biases you have. you read the briefs on the merits and you try to decide the case the best you can based on the law before you, and the facts. and it's really a matter of just coming in with a clean record and trying to figure out what the right answer is. >> mr. chairman, i see that gavel is ready to pounce so i won't try to exceed my time. thank you. >> before i call on senator durbin, i want to let everybody know, i recognize that senator lay he was right in his reaction to my statement. but also remember that that was a presidential election year. and if you compare it to what happened in the last year of the bush administration, you would find same big downturn in the amount of hearings that go on, particularly after the month of april of a presidential year. senator. >> thanks, mr. chairman. mr. duncan, more and more we are bringing up the issue of

religious liberty in this committee. it has always been an important constitutional issue but it seems more timely. and part of the reason was the hobby lobby decision. because that brought the issue of religious belief, freedom, liberty home to us where a decision was made that a company, in this case a corporation, hbo by lobby would be treated as a company. but religious believes of the owners of the corporation should be given deference when it came to their business decision. in this case, the business decision to offer health insurance coverage to 13,000 employees. and the argument from the owners was our sincerely held religious beliefs preclude us from spending our money as a

corporation to give to these employees who wish it health care coverage, including contraception, birth control. that is a pretty significant step, from my point of view, because we have been guided throughout our history when it comes to the issue of religion in our constitution by some very basic premises and come septembers. the right of religious belief. prohibition against the establishment of a state religion. the prohibition against any litmus test based on religion. now we have this new consideration of religious liberty. and i think it gets complex. in the hobby lobby case it certainly did. for some reason the religious beliefs of 13,000 employees were in significant in this decision. the fact that that individual employee may have no religious problem in being covered for birth control appeared to have

little or nothing to do with the final decision. and if you look throughout our history, there has been religious rationales for some pretty terrible behavior. there was a time when people made biblical rationalizations for slavery in this country. and found biblical quotes to support their position. that went on for decades to per pet wait this institution of slavery. i always think back to the case, my colleague from senator hatch is here, the decision in 1894 to allow the territory of utah to become a state included an enabling act which guaranteed the right to religion under state constitution but also said you must expressly prohibit blur alan polygamist marriage in the territory of utah, knowing that some people of religious conviction were engaged in those

practices. so i guess i'm bringing to it home to some kind of conclusion. when can i insert my religious liberty and say that can mean you can be enslaved? and i don't owe you what i owe to other americans because i happen to own the company? where do we draw the line with your right as an individual as opposed to my right to assert religious liberty? >> senator, you put your finger on the question. it's a balance. it's got to be a balance. it cannot be absolute. and as you point out, we were doing the hobby lobby case, and it was a close case because of the considerations that you just pointed out. that the women would be deprived of these emergency contraceptives, it was a difficult case but we had to deal with that at the balancing end. but let me address it this way. after, i left back after the

hobby lobby case, but before i left we got another case in the door from a muslim prisoner in arkansas who wanted to grow a half inch beard and they didn't want to let him grow a beard was they thought they could hide something in here. >> this is a question of personal appearance. this is a question of 13,000 innocent people who just went to work for hobby lobby and now they are being told because the owners have a religious belief they are being denied basic health insurance coverage. >> it was a difficult part of the decision. let me assure you haof this, i e this on both sides. i have been on litigating side arguing against that. and i was arguing that side of the equation. that's actually why i ended up at beck, i was arguing against them in a case involving prisoner religious rights. and then i went there because i thought they did valuable work

and i wanted to branch out and do a different set of issues and i argued on the other side. but now i'm back working for louisiana in many cases and i'm advising louisiana on cases on the other side of that. what does that mean? that means that i can see both sides of this issue, that balance that we are talking about. what makes the right answer in those cases is the law. not the fact that somebody may have a religious belief. you just brought up, if i believe that i could enslave you. of course that claim should lose hands down every single time. courts have to strike that balance. in these cases we are dealing with a statute. religious freedom restoration actor a prisoner statute. sometimes we deal with the first amendment, which is a different analysis. but i think you are right, senator, it's a balance. it's not an absolute on one side or the other. it's a balance that we have to strike properly and that's what judges do. >> i'll say you never get in trouble by saying a member of

this panel is right so thank you very much. >> you're welcome. >> senator hatch. >> thank you, mr. chairman. welcome to both of you. we appreciate your willingness to serve. and i intend to support you. before i begin, i would just like to start by thanking white house council r counsel don mcgahn and counsel office on nominees. i don't think we've ever had ha better council than don mcgahn, i can confirm he is one of the best people i've ever worked with and we've ever had down at the white house. it's a difficult job t and i'm grateful for the work that he's done. let me just ask you, mr. duncan, you were lead counsel in bear well versus hobby lobby stores. i'm sorry if i'm repeating questions, because i've been yanked out of this meeting for other meetings as well and i missed some of it. this case is whether obamacare's

birth control mandate met the requirements of the religious freedom restoration, act, my bill, by the way. i was principal arthur of that law and i think it's pretty clear. one left wing group says in this case you were fighting contraception coverage for women. is that true? >> well, thank you, senator hatch. no, that's not what we thought we were doing. i don't think that's what we were doing. what we were trying to do was figure out how to apply this law that you and senator kennedy cosponsored, the religious freedom restoration act to a novel question. where a business is being required by the government to subsidize certain drugs that the business owners just have a morale problem with, religious problem with. and we were trying very hard to

fwig o figure out how the law applies in this situation, as a novel question. we had some precedence way back several decades ago about jewish business owners and how the first amendment applied to them. but it was a novel question. it was a difficult case. it raised a number of difficult issues. and we did our best to represent the client, to make the best arguments that we could. >> i think you did. now, this same group claims that, quote, duncan will not respect precedent when he disagrees with the outcome of a case. unquote. that's a pretty serious charge. is that true? >> no, senator. that's the antithesis of everything i've done as a lawyer. i would be extremely poor lawyer if i disregarded precedent. >> sometimes people call precedence and it may not be and may be more complex and difficult to fully ascertain than you think. >> to be sure. >> i reject the idea that men and women who hold personal

views, including political or religious views, cannot be impartial judges. i think that's nuts. i reject the idea that level advocates cannot understand that a different role, judicial role requires a different and impartial approach. now you have your personal views. you've been a legal advocate, and a good one. and you have not shied away from controversial issues. can you successfully and fully take off that advocacy hat when you put on the judicial role? >> absolutely. i would be doubt i bouuty bound that. >> i think you would be a good judge i believe that. >> justice stras, i find that an interesting. in your view, that your role of

appellate court? >> the minnesota supreme court has commonly been called a policy making court. but my view of the cases and the law is that i apply the law. and whatever policy outcome comes from the application neutrally and impartially of the law is for someone else to worry about. i just try to figure out what the case is about. i read the briefs. i hear the oral arguments. >> that's all we can ask. 2011 case entitled berger ver cyst state involving the minnesota privacy act. you wrote that the court reached the correct policy result and if you were a legislature you would vote for legislation of that kind. here's what you then wrote, quote, however, my role as a judge is not to implement my hone policy preferences but to interpret the law as written, unquote. is that distinction between legislators and judges an important guide for you and your judicial duties? >> yes, senator, it's absolutely

critical. there is a tri part side system of government, legislature writes the laws and judges decide. in the case you are referencing, i thought the policy that the majority reached was correct. but i thought the plain language and the application of the cannons indicated that the laws should be read a particular way. and i went with the language of the law itself. >> i asked senator grassley if i schizophrenia could ask one other question and he said yes. and also this morning you said biccing versus city of minnesota. the court dismissed a lawsuit trying to place on last year ballot. you agreed with the result. but said the court should not have reviewed the case at all f the decision was advisory opinion trying to instruct the legislative branch. now i see a theme here that the separation of powers defines a court's proper role. why was the distinction you drew

in that case so important? >> it's a critical distinction. the role of a judge and role of courts is to decide actual courts and controversy. we've had a number of cases where i have written similar dissents where i said this is abstract controversy. it's a question for the legislature to consider because there is no longer a live case or controversy before us. and so i think that fits a theme of about two or three dissents i've written where we need to be careful of our proper role. >> i thank you both of you wanting to serve. >> thank you chairman welcome to both nominees. >> there is a distinction that i would like to try to elucidate that i hope you'll both agree with. let me ask first whether you agree that we ought not base our

decisions to vote for or against your confirmation on your religious beliefs? >> you are asking me if i agree with that? >> yes. >> yes, i grew he wiagree with . >> i agree as well. >> let me ask the corollary which makes the distinction. do you agree that we have a responsibility here in the senate to assure that litigants appearing before you as judges won't have your religious beliefs imposed on their case? >> senator, i think that if a judge were doing that, it would be totally improper. >> i agree. my oath is to the constitution. and in the case of it being a minnesota supreme court justice it's to the constitution of state of minnesota as well, not to my own religious beliefs. >> and i think that is a key distinction for this committee. it is important for us to, i

believe, ask questions, that can clarify when litigants come before you, you won't impose your religious beliefs on their case. but your own religious beliefs are your own business. is that a fair statement of where we should be falling on that distinction? >> i agree, senator. >> senator, i agree. i think that there is a religious test clause in the constitution. i think there is an establishment clause in the constitution. >> pretty clear. >> there shall be no establishment of religion. >> let me ask you, is there discretion on the part of the judge extant in the business of judging? >> i didn't understand the end of that question. >> is there discretion on the part of the judge as a necessary part of the business of judging? >> it depends on the case. yes, typically there is discretion. in different cases that discretion is going to take different forjs. >> often guided with the law but

often with considerable discretion to the judge, correct? >> in my view, it ought to be as limited as possible. >> that is why, to switch to judge stras, that is why we have abuse of discretion standard. it wouldn't make sense to have abuse of discretion standard if there wasn't discretion, would it? >> that's absolutely right. in reviewing the cases we've had a number of cases discretionary decisions by dils trikt courts. >> that's a pretty generous of the judge's discretion before it gets to the level of abuse, correct? >> it is. >> i gather that means first of all i understand that you both know who judge core dough sa and frankfort. >> yes. >> judge cordoza went on to say when the references in the index

fail, when there is no decisive precedent, that the serious business of the judge begins. and similarly, just frankfort teary acted to what he said the assumptions judges make law, quote, we miss educate the people and fail to bring out into the open the real responsibility of judges when they do. do you believe justices were speaking accurately about those circumstances? >> yes, i think justice cordo sorks a in particular, and i read the book, he exemplified that when he was on the new york court of appeals, because he was dealing there with common law issues and developing the law incrementally as common law judge and that's what he became known for so i think he's accurate there.

>> and i sat on the court of last resort, and many of the cases we get discretionary review are open questions, and you have to look at the body of law and exercise your judgment as to what the correct answer is. and that's what i've tried to do. >> so it would be fair and appropriate for us to assure that future litigants won't be mistreated in your courtroom by being subjected to religious or other personal believes in those areas where uncertainty of the law or discretion of the judge allow for the plal of your own convictions and conscious? >> absolutely correct, yes. >> senator, i think that's a basic component of the judicial oath that i would be required to take if i were confirmed, that i would treat people equally, not respecting persons, not respecting rich and poor, but, frankly, senator, as a lawyer, i

think it would be unbecoming of an officer of the court to treat one's opponent that way as well. the duty of a judge is higher than that. >> mr. chairman, thank you very much. i wanted to bring out the questions with these nominees and i may do it again with others because there has been considerable, i think, uninformed commentary when aur so our side asks questions about religious beliefs that we are trespassing into the area of some kind of test in which we are not going to vote for them if they have the wrong religious beliefs, which as these nominees recognize, there is room for discretion and uncertainty in the law, and litigants do have a right to a judge who won't impose religious beliefs in the courtroom on them when those areas of uncertainty arise. and i want to make sure that point is clear in this committee, because i don't think it's ha on test or factual

discussion to presume otherwise. thank you, chairman. >> thank you. senator tillis. >> thank you, mr. chair. gentlemen, thank you both for being here, families welcome. your dad's are doing great. actually, i want to start with mr. stras, and the preparatory materials for the hearing some of your position seemed to remind me of someone else who was before us a while back, near gorsuch. he has a fairly good reputation, so that's meant as a plicomplim. >> thank you. >> a couple of things i wanted to cover. one in minnesota versus obita, it sounds to me you should try the case based on the facts presented in the court, in the trial court rather than you actually decide a case based on additional facts or additional argument ls. is that a fair char rayization for a nonattorney? >> it is. it's a little bit more complicated than that.

that case was an unusual case because it involved a pretrial appeal by the prosecution which was not allowed at common law in minnesota. now we have a rule that will allows a pretrial appeal. and my dissent which was joined by justice allen page said, look, they wanted to -- the vic te victim wanted to admit, we said we didn't have the ability to decide that. it might be an interesting of first impression but didn't follow the rule and ultimately couldn't decide it. >> thank you. i thinking going to my next piece which remind me, now i think justice gorsuch famously said multiple times as he was questioned here respectfully, mr. senator, it's not my job to do your job. it looks like there were a couple of cases that was at least in my briefing triple-a versus minnesota human resources and peterson versus smminneapol.

is that an accurate description of those two cases that it was based on the text of the law, and to have gone otherwise would have been actually legislating from the bench? >> i agree with that. in large part. and with the triple-a case, the aa a case, that was a terribly difficult case for me to decide, it involved personal care assistance services for a young i believe autistic boy. and he didn't get the number of hours that he and his parents had. >> by the way, i hated your position on that, because i'm an autism activist, but i appreciate it why you got to where you got. it's really, hopefully the legislature took notice. we had similar arguments with the judges. go back and do your homework

rather than do it. thank you for your independence. i thought you would give you a breathe or two to catch up. by the way, you are doing a great job too. i want to congratulate you on hobby lobby case. would you agree that both the marriage, gay marriage and lobby lobby are settled law now? >> yes, senator, without question. >> so i'm not going to spend a whole lot of time relitigating anything, that you would consider before your court. is that fair to assume you would? >> absolutely fair. >> good. i do want to talk a little bit about -- i'm trying to get my paperwork together here -- on voter id. i happen to have a unique position here because i was speaker of the house when north carolina law was ratified by me.

so i think that when we have discussions about the intent of legislatures and what they were trying to do, it was absolutely to ensure that the person who appeared before the ballot or to cast their ballot were who they say they were. we should also understand the nature of that law because it's been characterized improperly. that law provided somebody who didn't have an id the opportunity to say i don't have twun and a te one and could at test to it. and vote for him. and i think you are right, i think you mentioned it, i don't know if you were talking to that case, but minority participation went up. >> i was. >> the court has decided, at least in this circuit and we are honoring that decision. similar laws are in place because circuit courts have decided otherwise. in other locations and i hope this gets settled at the supreme court. and i think that was one of the things you were attempting to do. is that correct?

>> yes. >> i vl a couple more questions but i won't. >> senator klobuchar. >> thank you. >> i want to talk about press, you and i talked a lot about that when we met. and i think it's important discussion right now in light of the challenges facing our democracy. and as we discussed previously, you said, and i quote, on matters of federal law, the duty of any lower judge is follow precedent. so if confirmed can you think of any set of circumstances where you would deviate from that statement? >> no, i cannot senator. >> and how would you view the importance of adhering to precedent even precedent where you felt that the case was wrongly decide fiduciary you are confirmed to the 8th circuit? >> i would have no problem applying any precedent. we don't get to choose what we like and don't like. there were cases where i have followed precedent. even though i wouldn't have

decided the case had i been on the court at the same time. >> so in your die sent of bernard v state you write my role as judge a not to implement my own policies but to interpret the law as written. and i ask you that question that you just answered yourself, if there was a time where you adhered to precedent despite disagreeing with the policy. you replied all the time. in light of those comments, can you give an example of the minnesota supreme court decision where you ruled in a way that was contrary to your personal policy preferences? >> i was trying to think of that as we were going over the previous questions. it's happened with some frequency. i can't think of one off the top of my head but i can say it's happened probably two dozen times over the course of my career where it's happened. and i have faithfully applied the precedent each and every time. >> now i want to get to the originalism issue. and to me there is people can be originalist but then what do they do when there is actual

precedent that's maybe in conflict. so instances where your respect for precedent comes into conflict with the strict reading of the statute. this is textbook question. where maybe at some point precedent differed from that strict reading of the statute. which do you favor? >> we have a doctrine on the minnesota supreme court similar to the doctrine in the supreme courts. when la court gives a definitive interpretation of statute, that interpretation becomes part of the statute as though they had enacted that. so my view is you follow precedent, statutory is a strong norm in courts and so i would follow precedent. >> okay. you and i previously discussed whether the favor of this originalist approach compared to the constitutional interpretation, you wrote an opinion in united prairie bank, a case involving whether a party seeking contractual attorney's fees was in entitled toll a jury trial under minnesota constitution.

you resolved the question. you looked back at theories of relief available from the 1850s. does your approach in united prairie bank which i think it, n it comes to constitutional interpretation? >> united prairie bank in particular is interesting case because we had a line of cases before i joined the court that required us in determining civil jury right to look back what types of actions would have been allowed at the time of minnesota founding. and that was actually united prairie bank was adherence to precedent than anything else. and so i'll say that looking at the language and what it meant at the time it was enacted is one tool in the toolbox that we have to use to figure out the meaning. but that case in particular that you cite is really about adhering to precedent. >> okay. very good. and as i noted earlier, in the introduction, when there has been dissents in your seven

years on the court, 94% of the time you have gone with the majority. and in those cases where you dissented, about a third of them have been with justice page. and so i thought i would ask you about one of them. and that's the bernard case in which the minnesota supreme court upheld the validity of a breathalyzer test that was conducted without a warrant. you argued that the majority departed from long standing forth amendment principles banning with illegal searches, but justice page dissented in the case. can you talk about how you approach interpreting the fourth amendment, something that i think we'll be hearing about a lot with new technology in the years to come in light of technology logical advancemented and modern privacy concerns? >> well, bernard is it an interesting case, justice page joined me as you know. that case went up to the united states supreme court. dealt with bret lieser and

search incident to an arrest. and only two justices agreed with me were justices ginsberg and soto my or on that case. in particular, it was the missouri that the court had decided a couple of years before. i tried to faithfully apply that. it ended up they decided something differently. but i did the best i could under the circumstances. >> all right. thank you very much. >> senator flake. >> thank you, mr. chairman. mr. duncan, you stated in your response to senator kennedy that you staked your reputation on defending laws of louisiana. can you talk more about that? >> certainly. louisiana is my home. and i remember when i went to work for the texas solicitor general office back whether i was a young attorney, that louisiana needed something like that. louisiana needed an office that

was dedicated to defending louisiana law in federal and state courts. because a number of states have done that. and what ends up happening is that the defense of state laws gets better simply because you have people who are concentrated on doing it. and so the reputation of the office grows in the federal and state courts. and there is a feedback mechanism where just the law is improved. and i greeted that louisiana didn't do that. hadn't done that up until a certain point. then i had the opportunity to go and work for the attorney general. i forget what year it is, 2008 maybe, and start an office like that. it was very small. we had very few resources. but we were able to defend louisiana law in really difficult cases. and now there is a solicitor general now who i work with and i think it helps the state, it helps the legislature, it helps the people of the state to have a more integrity in their laws.

and it's been very important to me in my career. i had a good example with greg coleman in the solicitor general office of texas doing that, senator cruz took over for him after we left. but it's been extremely important to me. and i think it's a good thing. >> well, thank you, mr. duncan. yesterday i received a message from one of my constituents, steve twist, steve is one of the national leaders in the victims rights movement. he contacted me to convey his support for you based on the sensitivity to crime victims that you showed in the montgomery case. >> thank you. >> and in support of your position. i'd like to, mr. chairman, put that piece of mail in the record. >> ordered. >> thank you. justice stras, i see from your record that you are the grandson of holocaust survivors.

they survived auschwitz and difficult thing to remember. how has that shaped your views of public service? >> i don't know that it's shaped my view of juning necessarily. but it has shaped my view of public service. within the last five or six years i started talking about it publicly to try to help other people, including holocaust survivors. so at one event i tried to speak by using my grandfather's words to holocaust survivors and. and one of the things he told me was serve other people and fellow man is how he would say t and i would say that a lot of my life, even though i may not have realized it, has been dedicated to the types of things he's taught me. >> thank you. >> thank you, mr. chairman.

mr. duncan, you know there are a lot of concerns about the supreme court's decision in oberg felt. and why it is important and not ab sol the role of the legislative branch our country's history is rif where it's needed to make sure we are all receiving the protections guaranteed by the constitution. and i think that you mention that you thought that the courts decide in brown v board of education where i think you could argue that that was a very seminal decision. and i think you said today that that was a unanimous decision. and, therefore, that that was somehow different from some other decisions that were not so unanimous in terms of just setting the law, clearly articulating the law. so do you think then that the

more unanimous a supreme court decision is the better it is for our country? >> i appreciate that question, senator, that's a very interesting question. i don't think it changes one iota the presidential value of the opinion. but i recall reading so the constitution constitutional history about brown. i think they speak with one voice. i think it is important for courts to speak as much as possible with one voice. and i think that would, if i were confirmed, i think the way that would translate for me is trying to seek as often as possible unanimity with my colleagues on panels. because i think sometimes it serves the law to have dissents or concurrences. but by and large, it's more helpful, sort of the public function of the law to have a unanimous panel. >> and i tend to agree with you. although sometimes the supreme

court gets it wrong, as it did in the matsu case. so the hobby lobby all important cases 5-4 decisions so that could lead to various other holdings by circuit courts such as the one that you are going to that could change certain outcomes. i was curious, in the voting rights case, where you said that you took the north carolina case to the supreme court so that the court could tell you whether the voter laws are valid. and wasn't the fourth circuit court's decision clear enough that in your case the intent was for voter suppression even if the election following the african-americans came out in large numbers, but the fourth circuit said that is not dispositive because of course you had president obama on the ballot. it is not easy to find actual intent to voter suppression.

but in your case the intent was shown by the court. so i'm just wondering that you thought further clarity needed to be coming from the supreme court which declined to take th question. i think the right way to look at it is you look at the fourth circuit and it had a holding on intent but the district court had a strikingly different -- and so i was representing a client and they -- my client felt strongly that supreme court view was warranted in part because of the dramatic nature of the fourth circuit opinion. as you say, it found intent. and so i think you're right. >> i would say that is pretty dispositive. you also were lead counsel representing hobby lobby and you wrote after the case that you said, quote, this is a water shed moment in american religious liberty and predicted

that the hobby lobby case could affect coverage of all manner of controversial practices from surgical abortion to euthanasia to sex change surgery. so since i'm running out of time, do you think that the hobby lobby case could be extended to private hospitals, can invoke their religious liberty not to perform surgical abortions or sex changes or mabin surance companies cannin vote religious liberty to deny health care coverage to same sex spouses, was that the kind of circumstances when you said this is a water shed moment. >> senator, i confess, i don't remember the context of that quote. and i wouldn't want to opine on hypothetical cases. but i will say, this as i recall talking about the case and as general counsel for beckett it was a water shed moment because you had so many challenges going on at the same time. >> i did want to get in one more question for -- for justice

stras. you have previously criticized the supreme court nomination process stating that for the most part the hearings amount to futile questioning about his or her jurisdictional views. i'm quoting you so suffice to say you said that. so you have been watching this process with regard to the confirmation process for judge gorsuch and do you think they did not ask difficult legal questions because i think we did and did you note judge gorsuch's responses to our difficult questions? >> i must confess i haven't watched the entire of his hearing. when i said that, i was reflecting a lot of the statements that previous members of this committee made, including then chairman biden made a similar statement about the nature of the confirmation hearings. i will say that now that i've been serving as a judge and i understand the cannons and what we can and can't say, and some

of them are very strict, that maybe some of those statements were made without the knowledge that i have now. >> we would dearly love for a nominee to respond in -- as open as possible. thank you, chairman. >> senator franken. >> thank you, mr. chairman. first of all, i was sorry i wasn't here, justice stras, when you introduced your family. i agree with senator feinstein that the kids of -- have handled themselves well. mr. duncan, yours needed a break i think. [ laughter ] >> oh, they're back. justice stras, in 2010 you reinterviewed about your experience clerking for justice thomas about the cases that were considered during that term. one of the cases was gruter versus bowlinger and this was the affirmative action case in

the admissions process at the university of michigan law school. the court held that schools may take race into account during the admissions process, so long as applicants receive an individualized review and so long as race is just one factor among many that the school considers. now justice thomas did not agree. so he wrote separately to explain his views. in a passionate opinion, he described the law school effort to achieve diversity as a form of quote, racial discrimination. you clerked for justice thomas during that term. you were asked about that opinion. and you said that justice thomas is, quote, very skeptical of the four c segregation of schools, unquote and skeptical of the wisdom of a lot of that. and when asked whether you remember what it was like to work with him on that opinion, you said that justice thomas, quote, sort of had the most say but that, quote, we all had a hand in that. now it is no secret that justice thom opposes affirmative action and gruter is not the only case

in which he expressed that view. but i'm curious since you had a hand in his -- his opinion do you share his views on affirmative action? >> well, and we discussed this i think previously senator. i thought about that question since we met and i've looked back at some of our cannons and whether or not i could answer that question after further review. and we have a case called state versus finch in minnesota, that says that judges cannot prejudge issues. and it is reversal error for judges to prejudge issues. and we have a number of cases involving equal protection challenges and because i haven't directly been con fronted as a judge with one of those cases, i i think that i would come very close to crossing the line if i were to answer the question directly. >> i understand and that is how these hearings are now. and have been for a while. in 2007 you published a piece about the supreme court case parents involved. and in that case two school districts found that their

student bodies were becoming less racially diverse as a consequence of the segregated housing patterns in the neighborhoods they serve. so the schools adopted plans to improve diversity of their student bodies. the supreme court struck down those plans, the 5-4 majority held the plans placed too much emphasis on race. now justice kennedy agreed that the plans were unconstitutional but he didn't agree with the majority view that the schools cannot take race into account. justice kennedy wrote separately to say that purse ug racial diversity and addressing the, quote, problem of defacto segregation in schooling was still a compelling interest and justice kennedy was not alone, four other justices agreed with him. so despite striking down the plans and majority of the supreme court held that schools have a compelling interest in pursuing racial diversity. three federal appeals courts have considered this question and all three of them found the

kennedys opinion controlling in this point. but in your article on the case you wrote giving controlling weight to justice kennedy's pronouncements in this area might be specially dangerous: especially dangerous. why do you believe that it is, quote, especially dangerous for courts to recognize and faithfully apply justice kennedy's opinion in this case? do you disagree with his opinion that schools have a compelling interest in fighting segregation. >> i appreciate the opportunity to clarify this, senator. that was a post in a plog called scotus blog and i wrote for a few years for the scotus blog website and at time i was doing work on what is called the marks rule, where you figure out what the controlling case is.

and all i was sort of alaw nerd. all i was doing was trying to apply the marks rule and just a few days after the parents involved decision and i said it wasn't clear under the marks rule whether the plurality or justice kennedy's opinion was controlling and it would be dangerous to just focus on justice kennedy's opinion as many commentators were doing. >> can we, gentlemen, agree in so far as the judiciary is concerned, the appearance of impartiality is almost as important as impartiality? >> yes, senator. >> and our rules in minnesota reflect that. >> you could be the fairest person in the world but if the people appearing before you don't think you are fair they're going to lose confidence in our

judicial system which separates us from a lot of other countries. could we agree on that. >> yes. >> and if you are confirmed, gentlemen, do you plan while you are sitting circuit court judge to express your thoughts and observations to the world through social media, such as facebook or twitter? >> me first. no. i don't do social media, senator. >> i do not express any professional views or views about the law. about a year ago i revived my facebook page to share pictures of my kids. >> excuse me but once you are on the united states court of appeals. >> i i will keep a facebook page, if it is allowed by the rules, i could keep the facebook page but i would not express any legal views or anything of that nature. >> how about personal political

views? >> no. it is just -- it is pictures and things that are going on with my family and friends. >> you understand the problem? >> absolutely. >> yes. >> okay. this is not the bar exam, yes. but what -- mr. justice, a comment you made made me think of a famous supreme court case. if you don't know about it that is fine. but it came out of the minnesota supreme court. do you remember michigan v. long. >> the independent adequate state grounds case. >> yes. >> you remember that one. >> well it is going to look like i'm cheating off of justice stras but i -- on my own, i remember that case. >> justice o'connor wrote it. >> yes. >> i want to ask you about the numbers in a legal context. here is my understanding of a pen um bra to the bill of

rights. it is a right tangent to or implicated by another right explicit in the bill of rights. the supreme court in griswold v. connecticut found the right to privacy was a penumbra implicated by other complicit rights in the constitution. bill of rights to the constitution which as you know is the first ten amendments. we on the same page here gentlemen. >> we're tracking. >> yes. >> we flow there is a right to privacy. which is existing as a right. a penumbra, do you believe there are others? >> who first. >> you are could go first. >> okay. the i think the ninth amendment recognizes there are others.

i think it says that explicitly. the reason madison wanted that in the bill of rights was because he was concerned that if you list out certain ones people will draw the implication that there are no others and i think madison wrote that in a letter. it is a rule of construction, it suggests that there are others. the question has always been what are they, and are they judicially enforceable. and so the court has laid down certain tests to sort of cabin judicial creativity in this area and as i understand it, the leading test is washington versus gloxberg. which as you know, senator, because you talked about this with other nominees, this has to do with whether there is a fundamental right to assisted suicide in the constitution. and the court lays down a testimony -- i appreciate that test but the purpose of that test is to anchor the analysis in our public legal traditions

as a nation. and not in the judge's preferences. that is a basic value, i think that everybody agrees federal court should share and i think that is what is going on there. it is challenging to apply it. if i had a case come before me, and i won't hypothesize but if that was the argument, i would go back and read glux burg and cruisan and feeloigure out what going on in this analysis. >> i would follow supreme court and to the except we are talking about unenumerated rights and that is a tough question to answer and i shouldn't answer because the fact of the matter is somebody may file a brief some day that says we want you to -- we want you to find this right in the constitution whether it be the minnesota constitution or the federal constitution, and i -- i need to be open minded and being able to

entertain that particular question. so the answer is in the ab instruct, i'm just not sure. >> i would like to ask one more but i'll be quiet if you tell me to. >> go ahead and answer one more. >> i don't believe this will ever happen. but i'm curious how you would react. let's suppose that at some point in the future on a galaxy far, far away. the united states supreme court reversed its decision in brown v. board of education. and reinstituted the plessy case. you are on the court of appeal. what do you do? >> it is our duty as lower court judges and this is true of the

minnesota supreme court, i would not like it, i would -- but it is our duty to follow the united states supreme court precedent. if i was required to follow precedent with which i disagree just like i follow precedent and that is what i took an oath to do. >> senator, the plessy is an em -- embarrassing decision and it is from our home state of louisiana. and i remember reading that in law school and being embarrassed by it. if the court overruled brown versus board of education which is not going to happen, then the first thing i do is pray that people of no state would ever reinstitute a regime of legalized segregation in this country. now if they did, and a case came before me as a circuit judge, i would apply the 14th amendment and read scholars like michael

mcconnell and others about the original meaning of the 14th amendment. and i hope we get brown back really quick. >> in the meantime -- >> thank you, gentlemen. thank you mr. chairman for your indulgence. >> in the meantime, congress would amend the constitution to overturn that case. before you speak, i thought i'd tell senator kennedy if he's interested in the ninth amendment in the 190 5 -- 1950s there was a short treatis published on the forgotten ninth amendment and you could read that and for senator durbin, you made the comment you understand it and in the last few years these candidates can't answer a certain question about a case that might be coming before the courts. that is probably been around since justice ginsburg.

she established the ginsburg rule that she was not going to answer questions for us or something that came before the courts. so it is about 25 years old. go ahead. >> thank you. thank you for reminding us about this rule and for the record, the kids are back. justice stras, i want everybody, you specially to understand that my objection here was not at all about you personally. i enjoyed meeting you. there are friends from minnesota jewish community here who are my close friends. i want to talk about the process and the nomination process. during the presidential campaign, then candidate trump

proudly declared that he would, quote, apoint judges very much in the mold of justice scalia and said that, quote, the justices i'm going to appoint will be pro-life. they will have a conservative bept and to ex pouz such views the candidate trump identified them to the federalist society and the heritage foundation. these are deeply, deeply conservative interest groups. and those groups produced a list of conservative judges for then candidate trump to consider naming to the supreme court, a list that included you. these groups have very well defined views on issues like affirmative action which i just -- and we talked about school integration or reproductive rights. and i'm confident they would not

have included you on the lists of potential supreme court nominees if you -- your views on those issues were not known to them. it concerns me that the federal society and the heritage foundation seem to have more insight -- must have more insight into your views and philosophy than the american people do by virtue of this hearing. and the group's picking the judges they know what they're getting. but the public doesn't. and i just don't think that's right. i just like to talk about the process that led to your nomination. in your committee question air you wrote that republican members of minnesota's congressional delegation contacted you about the position

in january and then in february you communicated with an official in the white house. who was that official? >> as i recall, the official i first communicated with was mr. cackis, the deputy white house counsel. >> did you discuss it with the federal society leadership or staff. >> i don't recall doing so. but i have a number of friends within the federalist society but i don't recall any specific conversations. whether we've talked about it indirect or informally, i can't remember doing so. >> so you don't recall. in may 2016, then candidate trump released that list of potential supreme court nominees. that list was created for him by the -- by the federal society and heritage foundation. and a spokesperson said that you

were -- that for the minnesota supreme court later said that you, that you have been unaware of the list until it was reported in the media. i understand that you are unaware of that particular list. but did you discuss that -- the possibility that president trump or then nominee trump might nominate you to the supreme court with members of the trump campaign or the transition team? >> no i did not. the first i learned about that was the day it came out and i learned about it from a press report issued that day. >> and you're relatively young man and, i believe you are 43. if you were some day elevated to the supreme court you would be well positioned to influence the direction of the court for decades to come. so you could see why your nomination would appeal to the conservative legal movement. have you ever discussed the possibility the president trump would nominate you to the supreme court with the heritage foundation or the federalist

society, have you discussed that possible with leonard leo? >> i don't believe so, no. again i've had informal conversations but never discuss that with leonard leo and i don't recall discussing that with the federalist or society. >> have you said to anyone that you've been told that you will be the first chosen for the supreme court if you -- if you become the circuit court judge and in a federal court judge on the eighth circuit. >> have not. and i have not made promises and i have no discussions even as an -- >> i understand. thank you. and thank you both and thachk yo -- and thank your families for hanging in there. thank you. >> you folks are released now. and i want to -- for you and

then the next panel, i want to say the record stays open for seven days so at the end of the seventh day you get the questions and get them back as fast as you can. >> thank you, chairman.

>> i will admit the oath. would you raise your right hand and affirm, do you affirm that the testimony you are about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you god? >> i do. >> i do. >> thank you, please be seated. >> go ahead. >> yes. it is your turn, we'll start with mr. rodriguez and then mr. iancu. you have an opportunity to make a statement and introduce family and friends and then we'll go to

mr. iancu. >> i want to thank you and ranking member feinstein and the members of the committee for taking the time to consider my nomination. i thank senator cornin and cruz for recommending me to the white house and president trump for placing confident in me and nominating me for this position. i do not have an opening statement but i do want to briefly introduce some family and friends who are with me here today. first is terry, i have been blessed to be her husband for 23 years now. she's right behind me. she is my best friend and the love of my life and we have four children. nickal las is 19 and just finishing up his first semester at stanford. and julianne is at the nine potter school and mia is a ninth grader at an international school in santo dom ipgo and

mira is the nine-year-old and she's just a bundle joy. we're very proud of each of them. i also have my mother here with me. tonitia tamez for the love and care that she has shown me throughout my life and also for demonstrating to me the importance of serving those who are in need and those around you. my sister diana lopez and her husband dan also flew in from san antonio as well as my sister-in-law jennifer keltner who came in from dallas. i have some friends from former partners, tim durst and jennifer adams and many friends from international justice mission and from my family who are watching online so i thank them for their support. thank you, chairman grassley and i look forward to the questions of the committee. >> and i was supposed to in my opening statement introduce you and so i'm going to save time and put it in the record and you could read what i had to say

about you in the record. now you may proceed with your comments. >> thank you, chairman, grassley. ranking member feinstein and members of the committee. it is a privilege to appear before you, the opportunity to serve the country that i love and the field that i love is a distinct honor. i'm grateful to president trump for nominating me to secretary ross for his support, and to this committee for considering my nomination. and i want to thank representative kelly for his wonderfully warm introduction earlier today. and senator grassley for your anticipated comments that i'm going to read into the record. that i sit before you today is a testament to the true promise of this country. and the fundamental goodness of its people. briefly before i get into my comments, want to introduce my family who is here with me today.

my wife, lisa who is a critical care pulmonary physician at kaiser permanente in los angeles. our son report who is a soft more in computer science and our daughterary ella in her first year of medical school and her significant other george wine stock who is a graduate in bio statics and a consultant for the washington nationals. and my mother-in-law is watching from home. my father is no longer here with us. but i'm wearing his ring and i believe he's watching still. he was so certain in his decision to come to this country, he loved this country so much. and he would have been incredibly satisfied to be here today. mr. chairman, american intellectual property is exceptional. some of the greatest leaps humanity has made have been fueled by our gravest inventors. americans who have changed the course of history with their

brilliance and dogged perseverance. some of the names like thomas edison an the wright brothers have become part of the national vernacular. examples would be multiplied many times over. across industries across time, such as the brilliant minds of the revelation or the bio technology revolution among many others. what these inventors have in common is they worked within the american intellectual property system. it is no accident this happened on american soil, and within the context of our constitution that uniquely recognizes the protections needed to promote human progress. our history and economy have been often driven by such advances in science and technology. now more and more innovation is the engine behind economic growth and our patent system is the crown jewel that provides

both the incentive and protection necessary to enable that innovation. when patent owners and the public have confidence in the patent grant, inventors are encouraged to invent. investments are made. jobs are created. companies grow. science and technology advance. we must continue to improve patent quality in order to foster further invention and growth. a reliable, predictable, high-quality patent system gives in the words of thomas jefferson, quote, a spring to invention beyond my conception, closed quote. mr. chairman, i have spent my legal career representing clients across the scientific and technology spectrum and i have been on all sides of the disputes and represented clients of many sizes. before that, i was myself an engineer developing new

technologies. i understand the needs of the very stake holders in the ip community. i also understand the benefits of a balanced system. today solo inventor who tinkers and toils in her garage may be tomorr tomorrow's leader of a large corporation. the accused infringer in one case may be the ip owner in another and the patent owner in one area of technology or science may be a member of the public trying to design around someone else's patent in another area. playing field must be even for all. the u.s. patent and trademark office is to a large extent the guardian of our prized intellectual property system with almost 13,000 dedicated public servants it houses the world's greatest collection of intellectual property knowledge and experience. if confirmed, i look forward to learning from them, and to working together to leave the

office in a culture of excellence that serves the interests of all of its con stitt yen-- consist yebts and public at large. >> i will start out with mr. rodriguez. you've worked at the international justice missions since 2010. so i would like to have you describe the work of that agency or organization and what you have been involved in and describe how that experience would prepare you to be a federal judge if there is a relationship. >> mr. chairman, my work for international justice mission these past years have prepared me for the role of federal district court judge if i'm fortunate enough to be confirmed. and in a number of ways. let me just highlight a couple. first the nature of our work and in particular for my role as field office director is to lead a team and has been to lead teams of lawyers. who are functioning effectively

as private prosecutors in both bolivia and the dominican republic we aebtered as a part to the criminal proceeding and we present our open evidence at trial and question the witnesses. and make decisions regarding trial strategy and the credibility of the evidence and the weight of the evidence throughout the investigative process. i do not appear in court as an attorney but i am regularly communicating with our bolivian and dominican lawyers regarding those principals. those are different systems from the united states criminal system, but the -- many of the principles are very similar so it has given my experience to bring to the federal court bench that i did not have before when i worked for baker boughts when i gained significant experience in civil trial as a trial attorney for those 11 years. but working with ijm hassen -- has enabled me to gain experience in criminal law. and fighting to stop sex trafficking and given me a great

appreciation for a impartial judiciary. the experience has demonstrated to me the importance of having federal district court judges who will fairly apply the law, who will make the courtroom accessible for all people and at ijm but we strive to make justice for the poor possible and if i'm fortunate enough to be confirmed, my role as a federal district court judge is very different from my role as i field office director for ijm but a critical role in ensuring that the criminal public justice system of the united states continues to function well is accessible to all and treats everyone fairly and impartially. >> i don't know how much percentage wise, but most of your legal experience has been in civil litigation as a federal judge you will hear both civil and criminal. how did you plan to prepare yourself to hear criminal cases. >> chairman, you are correct. when i was at baker bots, my

practice was as a civil trial attorney. i have, as i explained, gained exposure to and have gained understanding of criminal law principles while working these past eight years at international justice mission. and i believe that experience, those two experiences coupled together have prepared me to a federal district court judge. i also will take advantage of the materials from the federal judicial center to continue to educate myself and to keep up to speed on developments in criminal law and also will reach out to my fellow -- if i'm fortunate enough to be confirmed, district court judges in the rio grande valley, to gain from their experience in managing the specific dockets common to that area of country. >> and mr. iancu. obviously there are challenges facing you at the patent and trademark office. you might want to describe at least three or four of them or just name them. but if you are confirmed, what

would be your priorities in governing the context of the proceedings and attacking those problems. >> mr. chairman, a priority is to bring stability and reliability to the patent system and to the ip system in general. there are a variety of areas to look at and focus on if confirmed. for example, we can look at the ipr process, the post grand review process. and we have quite a bit of experience now for the past five years since the american invents act was passed, and we can see and work with the committee and senior leadership at the patent office as well as members of the stakeholder community and assess how the system is going and what improvements can be made.

i also want to focus on the overall ip system in the sense that perhaps provide a new paradigm. and to recognize champion -- perhaps evangelize the ip system. identify the excitement of invention and the creation of new things. the benefits it brings to the economy and to growth. and i think it would be tremendously beneficial to the u.s. economy in general if we could do that. >> senator coons. >> let me open by just thanking you, mr.r rodriguez for the witness of your work in bolivia. ijm does excellent work and i

wish we had the opportunity to explore it at more length, the important work against human trafficking here in the united states and in the hemisphere but i want to hope on commenting on my grat feud tor your work and i think it teaches about our values and priorities when people go to difficult places and do hard work on behalf of freedom. so thank you for what you do. my questions will focus on intellectual property. if i might welcome in both of your cases, your introductions and your stories. remind us of some of the greatest qualities of the american people. mr. iancu if i might go to issues i think will face you at the patent and trademark office. the post patent grant review process implemented post aia, it is been criticized for being unfair to patent owners, the use of claim construction standard different from that used by direct courts sh, the lower

burden of proof and the ability to amend the lack of a standing requirement, concerns about serial petitions, and the high rates of both institution and invalidation. i would be interested in whether you share any of those concerns and what, if any, actions you might take as director to address the concerns. >> senator coons, as you have identified, we have experience now with the post grant system for the past five or so years. and i am very much aware of shall we say strident criticism of some of the -- of the proceedings. >> strident and well founded or strident and baseless? >> well, you know, in somin -- instances well founded. but we have to be careful because the system needs to be very well balanced. and folks do mention statistics a lot. and we all know what they say about statistics, we have to be careful with them. but it is a true fact that the

system is criticized heavily and that is important to note because if the inventing community does not have confidence in the ip system, then investments do not get made and inventions slow down and the economy doesn't benefit. think if confirmed, i very much look forward to looking at the history that we have. working with you and other members of the congress who are interested and senior leadership of the office as well as members of the stakeholder community. and drill down and identify what is reality. and how we can improve. >> thank you. i have two more questions mr. chairman. i'm troubled by recent supreme court jurs prudent on what is patentable on eligible subject

matter which i think calls into question whether pattens should be issued at all in some areas where there is i think great promise in the innovation economy in particular medical diagnostics and computer implemented inventions. and this wandering juris prudence has created patent decisions relying more on the luck of draw of who the ex examiners and the judge is. and in your opinion is the current juris prudence and what could the office do address the situation. >> >> current supreme court jurisdiction on section 101 is the current law of the land and this is what the office follows and what the courts follow. it has in the areas that you have mentioned senator introduced a level of uncertainty. and the grand scheme of things, that juris prudence is fairly

present. the lower courts are working through drawing the appropriate lines. it is important to see how that develops. at the same time, the office -- the office although it hassi issued guidance on section 101, the office could do more and if confirmed i will make one of my priorities to work with the office and focus on section 101 and see what further guidance can be issued. >> my last question, thank you mr. iancu, along with chairman grassley, we wrote a letter to commerce secretary ross in july asking for information about the patent trademark office participation in the department of commerce shared services initiative. we only received an answer yesterday. near nearly five months later and i think it is unacceptable it took so long to get an answer that could have been provided promptly and where a lot of it was just simple facts, the

letter of response provided no answer about whether the u.s. chair would be required to continue to contribute to the shared serviced even if it won't use them. as you know, patent fees paid for by users is what funds the patent and trademark office. and this is, i think, a serious potential misuse. so i would be interested in whether this also leads you to have concerns that might undermine the directors independence which is established by statute. so if confirmed, mr. iancu, would you commit to investigating and providing full concrete answers to the questions posed in the original letter within your first month, and commit to informing the committee if political pressure is applied to having you agree to divert u.s. pto fees away from the mission of the agency? >> i do commit, senator, in -- if confirmed to investigate the issues raised by your letter and

respondi responding promptly. to the extent that hasn't happened yet. and on the broader question of fee diversion, i also agree, it is really important to fully fund the office. the office is fully funded by user fees, those fees should be used to -- for the activities of the office for the benefit of those users. >> thank you mr. iancu. and thank for being a great partner, chairman grassley, to seeking answers to a wide range of number of topics over many years. thank you to the panel and congratulations on your nomination. >> i'm going to go back to perfect iancu. you have to give advice to the president and secretary of commerce -- commerce basically on -- on intellectual property policy. but you also advice federal departments and agencies if confirmed what

recommendations -- maybe the answer to this question, you haven't been there yet but if you have an answer, i would appreciate it, what recommendations would you make to improve the tate of intellectual property to the united states and abroad. >> thank you, mr. chairman. i would focus on the top level issues that i mentioned in my opening remarks to begin with. so first and foremost, evangelize the ip system. promote the bill yens of in venters, the excitement of invention and the great benefits it brings to the economy and society in general. i think a concerted effort can be made by the administration and by congress and leaders in that -- in that regard. i would also to the extent possible work with the rest of

the administration and strengthen intellectual property rights in the sense that return to a higher level of predictability of the ip system. on the international front, i look forward if confirmed to work with the rest of the administration and the u.s. tr for example to insist that our trade partners have strong corresponding ip laws that protect american companies doing business overseas and that there are appropriate enforcement mechanisms for doing such business overseas. >> okay. also there are a number of important offices that deal with intellectual property, copyright, the office of u.s. trade representatives, maybe others, they all play an important role in making u.s.

intellectual property that makes sure that it is protected here and abroad. would you pledge to coordinate with your government counterparts to bolster u.s. intellectual property rights and enforcement. >> i do, senator. >> in your opinion, what is the proper role of your directorship in the p-tab adjudication of cases. >> the director is a statutory member of the p-tab. i don't know for a fact whether my predecessors acted as sitting administrative patent judges on the board. but that is -- that is an option under the statute. >> so i presume what you are

saying is you're going to explore your participation after you get there? >> correct. if confirmed, i will explore the -- the feasibility of that and frankly the desirability of doing that. balancing all of the various other duties of the position. >> okay. a number of industry take holders have complained that abusive litigation by patent assertion entities, patent roles is the name i go by for them, continues to be a significant problem. your opinion on the issue and if you believe there is abuse, how would you think the problem should be addressed? >> mr. chairman, any abuse of the ip system and frankly any system should not be tolerated. this -- it is important to have a well functioning balanced ip system.

and congress as well as the courts over the past several years have taken a number of measures to address some of that abuse. and to a large extent we -- we should see how that recent development in the case law and some of the recent acts of congress are working out. and take stock of that. and see whether more needs to be done. and i emphasize at the beginning and i do as part of this as well, that as we do that, a balance is critically important. we really do have to be careful as they say not to throw out the baby with the bath water. >> in the invents act congress

created -- [ inaudible ] and post grant review proceedings as the law says for quick and cost effective alternatives to litigation. as senator coons mentioned, a number of industry stakeholders are concerned that ipr and bgrs are being abused to the detriment of patent rights. as you are aware congress ordered that these processes were, quote, not to be used as tools for harassment or means to prevent market entries through repeated litigation and administrative attacks on the validity of a patent, end of quote. do you believe that the way the american invents act has been implemented fulfills those policy goals and if you don't agree that it fulfills them, what changes should be implemented to improve the process and ensure that it meets congressional intent. >> senator, as i've mentioned,

we do have quite a bit of experience now with the ipr process. there is quite a bit of criticism out there about some of its provisions. in fact, there was a supreme court hearing early this week about the constitutionality of the entire ipr process. and if confirmed, it will be one of my priorities to work with senior leadership at the patent office, congress, and the interested stake holders in the ip community to identify the specific issues that need to be addressed and how to address them. some examples were mentioned by senator coons but they do include to take a look at and see if anything needs to be done. the amendment process, and the

ipr system. the standard for construction. the type of evidence that is admitted at the hearing itself. how the ipr consideration is determined at the top of the proceedings. and things along those nature. and based on the experience we have today, make appropriate decisions. >> my last question. the constitutionality of post issue american events act reviews before the p-tab has been challenged and it is being considered by the u.s. supreme court in the oil states case. can you tell us what your views are on the constitutionality of p-tabs post issue review of

patents? >> well, mr. chairman, thissue s heard at the supreme court just two days ago. i would not presume to prejudge what the justices will have to say. >> okay. i think i'll have a number of other questions for answer in writing. and you heard -- i think you heard me say that they'll be one week for you to receive answers in writing. and mr. rodriguez, you should be warned that your job on the bench will be more difficult than your hearing. hearing is adjourned. >> thank you.

[ proceedings concluded ]

c-span recently sat down with mercedes shlap, senior white house adviser for strategic communications. she talked about her father's imprisonment in cuba, grow up in miami and the 2000 presidential recount vote in florida. see it friday on 8:00 p.m. eastern over on c-span. jefferson probably knew more about more things than any single man in north america and i include franklin in that. who would be his only rival. and everyone was impressed by jefferson's except of his knowledge. adams was smart but he didn't have the breath but he had depth in history and in law that jefferson didn't have. not because jefferson couldn't. he just wasn't as interested in the law as adams. >> sunday on the q&a, gordon wood on his book friends

divided. about the relationship and differing political views of john adams and thomas jefferson. >> adams was a realist. he didn't believe all men were created. they thought all men were created equal. he didn't believe in american exceptionalism. we americans are no better or no different than another nations. jefferson is the opposite. he's into nurture and that is what moefsh -- most americans believe and we are all born equal and the differences that emerge are due to different experiences and environments and that is why education is so important to us americans and it was important to jefferson. >> professor and historian gordon wood, sunday night at 8:00 eastern on c-span. house speak paul ryan today told reporters that he's had conversations with texas republican member blake farenthold over