>> in 1979 c-span was created at out -- as a public service by america's cable television company and today we continue to bring you unfiltered coverage of congress, the white house, the supreme court, and public policy event in washington d.c. and around the country. c-span is brought to you by your cable or satellite provider. >> the senate judiciary committee held a confirmation hearing to consider judicial nominees including allison rushing to sit on the fourth circuit court of appeals court of appeals. the committee heard testimony from a group of u.s. district court companies selected to serve in the northern, middle and southern districts of florida. senator john kennedy acted as the presiding chair of the hearing.

>> the hearing will come to order. good morning. welcome to all of our nominees and their families. senator grassley asked me -- chairman grassley asked me to read a little statement here which i am pleased to do. i would like to briefly mention why we are holding this hearing while the senate is in recess. it is because ranking member feinstein agreed to hold this hearing. the chairman, as a courtesy and combination to the ranking member kwak -- twice postponed it originally scheduled for september 26th. to post the chairman to postpone the hearing scheduled for last week to today.

the ranking member not only agreed to hold hearings on october 10, october 17, and october 24, but she also specifically agreed not to object to the timing of these hearings. let me read that again. the ranking member not only agreed to hold hearings on october 10th, october 17th and october 24th, but she also specifically agreed not to object to the timing of these hearings. the ranking member was fully aware of the possibility of the senate going into recess in october when she consented to these hearing dates. without objection, i will enter the relevant correspondence between the chairman and the ranking member as well as between their staffs and to the record. senator hatch, do you have any opening comments you would like

to make quick. >> mr. chairman, welcome to the folks who are here especially for this hearing and we appreciate your sharing this hearing. >> thank you. we are going to start with ms. rushing. let me give her a quick introduction. do we have the statements to introduce after the record? >> yes we do. >> what statements do we have for missus rushing. senator tillis and senator burr have remarks that they would like to introduce into the record which we will do without objection. missus rushing graduated from wake forest university. she received her jd from duke law school and she is an clerk for three judges and first with

judge or such on the tenth circuit, followed by judge sentelle from the district of columbia circuit and justice thomas of the united states supreme court. after these clerk ships missus rushing has worked at wilson connolly and became a partner in 2017. or practice for -- appellate matters in the supreme court and the federal court of appeals as well as in state courts of appeal. the committee has received letters in support of missus rushing's nomination, including for more than 100 partners at her law firm williams and connelly. we have also received letters from co-clerks from her time working for judges georges, sentelle and justice thomas and we received a letter from longtime justice of the north carolina supreme court without objection i will enter these letters into the record and i'm

quick to hold off introducing our district court nominees. please be seated. welcome to your family. if you have an opening statement, free to give it. we normally give five minutes. if you go over a little bit that's okay. >> thank you senator kennedy. thank you for the introduction and for chairing this hearing

today. i would like to thank ranking member feinstein and all the members of the committee for making the time to consider my nomination. i would also like to thank senator burr and senator tillis for their support and for their confidence in me to serve in this role. i am also grateful to the president for honoring me with this nomination. i don't have an opening but i would like to make some introductions. i would like to first introduce my husband like who is sitting behind me. he works as a management consultant. i would not sitting here today were it not for his love and support. with blake's hours on james who is 11 months old in the light of our lives. it is a joy every day to be his mother. i would also like to introduce my parents, david and lynette jones who made the trip from east flat rock, north carolina to be here today. my parents were high school sweetheart at the same high school i attended in henderson county north carolina.

my father worked as an architect and a builder for part of his career. i can still point out some of the building in our hometown that my dad worked on. both of my parents became teachers in the north carolina public school system where they devoted their lives to educating from all different backgrounds and helping them succeed. my parents gave my brother and me a foundation of unconditional love and taught us the value of hard work, education and kindness. those things opened up the world to us. my brother, doctor kyle jones could not be here today. he is a medical physicist this -- physicist at md anderson and he is in texas i believe he and his family are watching online. i would also like to recognize judge davidson tail from the court of appeals. he could not be here because he is hearing cases this morning. his support and guidance have meant the world to me.

the judge and i are both from the mountains of north carolina and for me he is a model of the judicial temperament. he demonstrates southern civility in agreement and in disagreement. i am indebted to just disgorge it and justice comment -- justice or such and justice thomas. i would like to thank my colleagues, clients and friends across the political spectrum who have generously shown their support for my nomination in so many ways. including attending this hearing and submitting letters of support to the committee. if confirmed, i will strive every day to live up to their steam. it is a privilege to be here today. thank you for having me. >> thank you, miss rushing. senator hatch? >> just happy to well -- welcome you here. we are very proud of you. i look forward to porting you in every way i possibly can. >> thank you.

>> miss rushing, i'm going to talk a little bit about your job experience. he graduated from law school in what year? >> i graduated from duke law school in 2007. >> then what did you do? >> i clerked on two different federal courts of appeals. first the 10th circuit out in colorado and then on the dc circuit i began my law practice at williams and connolly. >> what year was that? >> that was in 2009. >> how long were you at williams and connolly? >> i was there for about a year before i had the honor to work for justice thomas at the supreme court. >> what did you do that year? >> as a law clerk you are -- >> at williams and connolly? >> i was an associate.

my practice then and now focuses largely on appeal in the federal courts appealed and the supreme court. although i have taken a number of cases to trial in the district court. >> tell me about the cases you took to trial. >> sure. i have taken two cases to jury verdicts all the way to verdicts. and then two cases to judgment before district court judges. that is in addition to many cases that don't quite ever get all the way to judgment. >> what court? >> those were in the southern district of new york and the district court here in dc. >> where they decided from pleading, or did you have evidence? >> the two jury trials work multi-week trial in front of juries with lots of factual evidence and legal argument. one was arising under the

financial institutions reform recovery enforcement act which was a novel new use of the statute. a lot of interesting legal questions in that case. my team and i were defending reporters who have been accused of defamation for exposing child labor. >> were you sitting first year? >> i was not first chair. those were multi-week trials so there were teams of attorneys involved. i was in the defamation trial, i was in court every day arguing in front of the judge. >> how many people were on the team in the first row? >> this will be a rough month. in a fiery a trial, i would say there were more than 10. >> where were you in the pecking order? >> in both cases i was crafting our legal argument. the trial

was earlier in my career. the defamation case i was running the side of the case. >> in the first case, did you take any witnesses? >> i did not take witnesses. >> how about the second case? >> i helped repair witnesses. i mostly did the legal arguments in front of the judge. my career like many nominees for appellate court, my career is focused on appeals. i felt over 45 brief in the supreme court. been involved in more than 50 appeals occluding arguing in five of the different federal circuit courts. >> you went to work for justice thomas, that would take you through 2011? >> that's right. >> and then you came back to williams and connolly? >> i returned to williams and connolly after clerking for justin -- justice thomas where he helped build our appellate practice erie >> you have been there seven years and you became partner 2017? >> i became partner effective

january 1, 2017. virtually all of my partners have graciously supported me. they are very politically and demographically diverse group and i'm honored they support my nomination. >> did you have a mentor at williams and connolly? >> i am indebted to canon it is sitting behind me. he worked alongside me in the appellate practice from the beginning. >> is she senior to me? >> he appears on the letterhead above my name. >> i don't recall when he enjoined -- joined the firm but it was before i did in 2009. >> i am asking questions about your experience. you have been out of law school for 11 years. >> that is right.

>> and you spent a lot of that time clerking. >>, about your major discipline in life. >> that is an interesting question. major disappointment in life. i would like to thank that everything happens for a reason. and that even though things are disappointing, they turn out for the best. i was disappointed that i spent so much time focusing on my career instead of a family. but thankfully i was blessed with a family as well. no it is very difficult for women in my profession to have a family when they are working hard at a big law firm. >> have you ever failed at something and had to pick yourself up and put one foot down, and one foot after that? >> people who have known me as a child and in my adult years

can tell me i fail at sports. i still enjoy them but i'm not very talented. mac fourth is your biggest failure in life >> it is among my failures. >> what is the worst mistake you ever made practicing law? >> working with teams of other lawyers help us if we make a mistake to catch it in time. i know there have been instances where i have been very grateful to my team members for following up on my work. in particular i can think of deadlines for filing various documents are very important. if you miss one it can be

devastating to your case. there are a number of times i have been grateful for associates on my team catching my calculations in that regard. >> is williams and connolly managed by a management committee? how does it work? or do you just have one king or queen? >> there is a group of attorneys who manage the firm. >> okay. >> that was kind of a dumb question. i have already made a mistake. >> three mid to senior partners at williams and connolly, --

>> i think all the lawyers at williams and connolly are fantastic. brendan sullivan comes to mind. kevin bain, three people who i have worked closely with. >> here's my question. i don't mean to offend you. but i don't think you are surprised that this line of questioning. why shouldn't we appoint them? they have been at it a while. they have had a little wife experience. they have had disappointments. they have had to pick themselves up and get back on their feet and keep going. they experienced a little bit of life. do you think that matters when you are making these kinds of decisions in the court of appeal? >> senator, i think the most important, i think you are right. experience matters. i think i have the most relevant experience to being a

federal court of appeals judge. that is experience in the federal courts of appeals and the supreme court. as i mentioned my practice is focused there. >> i'm talking about life experience, ms. rushing. >> i clerked for a federal judge. you are a star, that much is clear. you went to justice thomas and you went to williams and connolly and they probably gave you credit the partnership and a signing bonus because you are a star. your career has been on steroids where you do an extension of researching and writing and getting witnesses ready. what i am asking is what about life experience, have you ever been in the trances and trial and represented a client who can pay you?

>> i have been in the trenches and represented clients who can pay me. first, i believe you have a letter from one of my clients he was in the trenches with me at trial talking about her experience. second, i represented numerous individuals who could not afford to pay me. i have represented probe on her -- pro bono criminal defendants who have been found guilty of murder in the maryland court system. i have represented veterans seeking benefits in the federal circuit of courts. that was the first instance to help veterans and other veterans. >> even though i am the chairman, i want to abuse it. have you ever read a case out of a casebook?

>> yes, senator. >> tell me about the article you authored. mackey wrote an article that advocated stricter rules for standing in first amendment religious cases. what was your thesis there? i believe you are referring to an article that i co-authored in law school. the primary author was a respected first amendment lawyer. i was flattered that he included me in the byline. i must admit the thesis in the town were his. the thesis was that the supreme court in 1982, in the valley forge decision acknowledged that plaintiffs in establishment clause cases must have article freestanding and the article freestanding is not established simply by disagreeing with government action. but since 1982, the court has not returned to that question and has addressed cases where

it was seen there could be a standing problem. that is a continuing issue in front of the supreme court. >> so you are advocating at making it harder to bring a case objecting to alleged co- mingling of church and state. -- stay? >> i think the article -- state ? >> i think the article took a position that the supreme court addressed this issue. it is difficult to understand why the court hasn't raised the standing issue in other cases where was deemed to be implicated. there was a case in the supreme court recently where members of congress, in fact members of this committee signed a brief urging the supreme court to decide this very issue. the question of article 3 standing in establishment clause cases. it is an open issue. >> if your provision prevails, it will make it easier or harder to file an establishment?

>> it depends on what is being pursued. it would enforce article 3 requirement. >> make it harder. >> in cases where someone does not have a particular injury, or there's only offense that say a monument, it would impose that requirement. >> you believe you are right? i don't want to go too far over. i'm sorry to interrupt. >> you wrote this as an article, did you believe what you wrote? >> i was a one l in law school at the time. the mc did you believe it? >> i agree with the law i was researching and including. but the thesis came from the attorney i was working with. >> but the attorney you did it with, did you look in the eye and say man, you're just dead wrong here. >> it is definitely an open question under the law. >> i am a methodist.

i was raised presbyterian. my parents found it to presbyterian churches. when we got married, becky was a methodist. and i was a presbyterian. we compromised and i became a methodist. but we help -- we helped found a methodist church. i don't want the government telling me that i have to be a methodist, or telling me what i have to believe. what ought i have to worship. and i don't want the majority telling me that either. i said this to judge cavanagh, sometimes the majority needs most of the rolls are on the same. i am pretty keen on this idea of keeping the state and government separated. >> that is an important

principle. i think the examples you just gave are great examples where an individual would have a particularized injury under article 3. any time the government tell someone you have to worship this way, or you have to identify this way, you have to say under god in the pledge, those are examples of forced religious exercise where there is an article 3 injury for establishment clause purposes. >> we are going to move to the second panel. i'm not trying to be rude. i can see your resume. you are a rock star. but i think to be a good federal judge you have to have some life experience. and tell me, williams and connolly is a great law firm. a lot of great lawyers there. tell me why you are more qualified to be on the fourth

circuit than some of the williams and connolly law firms lawyers that have been there for 20 to 30 years in the trenches. >> my experience in the federal courts of appeals in the supreme court are why i am qualified. not only the depth of that experience, but the variety. the variety -- the judges on the court of appeal get a wide variety of cases and i have that experience in criminal law, their petitions, product liability, intellectual property, constitutional issues , a vast array of federal statutes. i have litigated all those cases on appeal. i will be ready when those cases come before me if i am so fortunate to be confirmed. >> okay. one last question. you work late, do know the name of the people who clean your office? >> i used to. i have been out on maternity leave until recently in the person change. mackey was it? >> it was anita for a long time.

>> joint asking questions? >> i am very impressed with you. >> naturally i know a lot of people at williams and connolly and have worked with that law firm in various matters over my 42 year service in the united states senate. it is a great law firm. you have a bunch of great partners. i know a number of them. i have had a lot to do with most of them. all i can say is that i'm very proud of you. i think you have handled yourself very well. some have chose to use false narratives and myths information and insinuations to oppose nominees. unfortunately we are seeing the latest examples of these attempts here. some groups have chosen to criticize you and other previous nominees for connections with adf.

adf legal work is widely respected. adf has been effective and has been an effective advocate for its views on religious liberty and free speech cases. empirical scotus which ranks supreme court advocate said that adf was the most effective firm over the last five years based on its 4-0 record. these came in important cases like masterpiece cake shop and sunny d lutheran. in the last years, adf has 19 cases in the supreme court. that is a pretty good indication to me that they are defending mainstream views. attempts to discredit nominees because of connections to adf have failed. if tried again, they will fail again. as one of the proponents of the religious freedom restoration act, i was the author of it.

religious liberty has been an important issue for me. can you talk to us today about the importance of religious liberty in our constitutional system? and tell us what your views are? >> of course. our country was founded by people of different religions and people of no religion together. it was founded on the idea that the government can't say what your religion should be. the government also shouldn't prevent you from worshiping according to the dictates of your conscience. that is why the first amendment has the establishment clause and the free exercise clause. those are important in the way that they worked together. congress has supplemented those with acts that governs the states. x also has an active their own acknowledging that protection for religious liberty is paramount. it goes back to the principles

that our country was founded on. >> thank you. when we hold these hearings, quite a few of the questions are normally focused on positions you argued on behalf of client. can you tell us how you view the differences between the position of an advocate and the role of a judge? >> certainly. as an advocate my role is to zealously represent my client. there is an outcome in a case that my client would like to see. and i do my best to research the law and help my clients achieve that outcome. in some way i find the outcome and you look for the law, you look for the arguments to persuade the judge. a judge does not work from the outcome backward. a judge comes into the case with an open mind. here's the arguments from both sides and let the reasoning and the law tell her where the outcome is. she follows the reasoning to the outcome rather than the other way around.

i think that is an important distinction and one that i would observe if i'm so fortunate to be confirmed. >> i think you will make an excellent judge. i want to commend you for your legal acumen and for your experiences in law school and your experiences ever since. i acknowledge that your law firm is one of the great law firms in this country. and just to be chosen to serve in that law firm is a tremendous honor. i am proud of you. and i look forward to making sure you get through this process and serve on the federal bench. >> thank you senator. >> does anybody else have a questions? >> miss rushing. >> thank you senator. >> will our second panel come up, please?

>> okay, let me swear you in folks. you have raised your right hand. you affirm that the testimony you're about to give before the committee will be the truth, the whole truth, and nothing but the truth so help you god? please be seated. >> we have before us in our second panel nominees for district court. we have thomas patrick barber to the united states district judge for the middle district of florida. wendy williams berger united states district judge for the

middle district of florida, corey mays, mr. mays has been nominated to the president for the u.s. district court, northern district of alabama. rodney smith to united states district judge for the southern district of florida and thomas kent weather. the second to the united states district judge for the northern district judge of florida. we will turn to opening statements. you each have five minutes if you go over, you won't get taste or anything. >> good morning. i am honored and humbled to be here and participate in the advice and consent process given to us by the constitution. i want to thank chairman grassley, ranking manner feinstein, and her -- and you

chairman kennedy for giving us a hearing. i want to thank the president for nominating me and i would like to especially thank our home state senators, nelson and rubio for all of their help and the help of their staff in this process. you may know from florida, we have a bipartisan judicial nominating committee which is made up of 35 people who come from naples florida in the south all the way up to jacksonville in the north. i want to thank each of those 35 members for their work on these judicial nominations. they don't get a lot of credit and they don't get paid. but they work very hard. now, i would like to introduce my friends and family that are here starting with my wife, diane. she is my strongest and most loving supporter. she and i met when she was identified as a possible witness in a federal court case i was working on. she is a wonderful parent. she is a music teacher. we have our two children here, elizabeth and ben. elizabeth is a high school

senior. she is hoping to go to the coast guard academy for the merchant marine academy and have a career in the american military. our son ben is also here. he is a sophomore in high school. he is active in a lot of musical groups and is working on completing the requirements for eagle scout. we are very proud of both ben and elizabeth as parents. i also want to acknowledge my parents and in-laws, none of which are here. my mother, dorothy, is 93 going on 63. she can come up from florida to be here today. hopefully she is watching on the internet as well as my mother-in-law carol who is in central illinois. she is also hopefully watching on the internet. my dad died when i was very young and i lost my father-in- law recently. the other family members, my brother, ed is here. my sister-in-law is here. my wife's cousin, brenda and my two friends doctors barry and

marilyn who have, from florida. i thank them for that. lastly, i want to thank my judicial colleagues back home in tampa florida. for the last 14 years i have had the opportunity to work with a distinguished, hard-working, conscientious group of state court judges. federal courts are important but the state courts are were most of the public comes for their connection with the legal system. i thank them and appreciate their friendship and support. i look forward to any questions you may have. >> judge berger? >> good morning. it is an honor and a privilege to appear before this committee. i want to begin by thanking president trump for nominating me in having faith in my ability to serve as united dates district judge for the middle district of florida. i want to thank term in class late and ranking member

feinstein for scheduling this hearing. and thank you senator kennedy for presiding. i would like to thank the bipartisan florida judicial nominating commission and forwarding my name and considering application. i want to thank senator rubio and senator nelson, for meeting with me and considering my nomination and for their support moving forward. >> i want to thank the attorneys in the white house counsel's office, and the office of legal policy for their assistance. i have not prepared an opening statement but i would like to recognize my friends and family who are in attendance today. my mom, pat williams, and my sister jennifer, and my eight- year-old niece traveled all the way from saint augustine florida. they drove to be here today. they are a constant source of love and support and encouragement. i thank them so much for being here. though not physically here, i know that my dad is here in spirit. he was my biggest fan and most

vocal. i love him and i miss him. my parents were married for 48 years before my dad passed away. they instilled in me a value system and a work ethic that i carry with me today. they taught me that when you give someone your word, you honor it. if you start a task, you complete it. if you want something, you work for it. those three simple lessons have served me well, both personally and professionally in my life. my uncle frank williams, former florida legislature is here with me. my dear friend anne-marie who was an attorney in saint auxiliary -- and ste. marie is here. i thank them for their support and for coming to show it today. finally i would like to recognize my husband larry and my children. griffin and georgia were seated behind me. larry and i have been married for over 21 years.

he is a successful businessman, currently serving as vice president of the company his grandfather started over 75 years ago. he is my best friend and my better half. i love him dearly. i'm thankful to him for supporting me throughout my career and for being such a great father to our children. i'm a better person because of his influence on my life and i thank god every day for bringing him into my life. my son griffin is 20. he is a junior at florida state university majoring in business. he loves politics and maybe one day he will be seated where you all are. my daughter georgia is 15. she is a sophomore in high school and one day she might be decorating somebody's homes. i think she has attention for interior design. they are smart, respectful, and kind. i love them and measure. they are my greatest accomplishments and they encompassed my proudest moments. my personal and professional

success in life doesn't compare to bang them on. time doesn't permit me to think everybody that has supported me , but i hope they know that i am eternally grateful for their encouragement. a few before i close that i would like to thank. i would like to recognize my family that is not here, aunts uncles, cousins. my mother and father-in-law, my sister-in-law and her children. my brother-in-law brad who is a firefighter at home working. my colleagues on the fifth district court of appeal and my former colleagues on the circuit court. my colleagues in the governor's office and the state attorney's office. additionally, i want to thank my judicial assistant, indy and my law clerk erica wright and kirk for their support they have given me. lastly, but not least i want to thank my trinity family for lifting me up in prayer.

i'm truly blessed. with that said, i shoot your consideration of my nomination and i welcome your questions. >> corey maze. i want to thank senator grassley and ranking member feinstein for scheduling today's hearing. i want to thank you senator kennedy are and -- senator kennedy and senator hatch. i want to start by thanking president donald trump for giving me this great honor. unlike my colleagues, i'm not from florida. i'm the lone alabamians on the panel today. it is my great honor to thank my state senator's starting with richard shelby who i cannot think enough for the trust -- think enough for the trust he has showed me recommending me here. and also for the support that he and his staff have shown me throughout this process. they have been great to meet all along. i also want to thank senator doug jones who took the time to meet with me and to support me with his blue slip.

like my colleagues at the table, it makes me proud to say that i'm the product of bipartisan support from my state senator's. like everyone else, i don't have the time today to thank everyone who was watching, everyone who has supported me. there are people around the world. my sister is in asia at 10:30 pm watching this. i want to thank each and everyone of you. there are four people but i do want to thank in lieu of an opening statement today. i wouldn't be here without any of them. first, is my wife kristi. she has supported me each step of the way. she has pushed me in some of those steps when i needed it. i would not be here today if it weren't for her. >> second, my parents. they were married over 40 years. they are public servants and they serve -- served no one more than their kids. my mom was a public school teacher for 40 years. she should be volunteering this morning but she took the day

off so she could watch her son testify in front of congress. my father unfortunately passed away in the last few months in a military veteran's home. i don't think that my father ever understood what an honor his sun had been given. -- that his son had been given. third is jack miller. he made the city a part of my life and this profession a part of my life more than 20 years ago. he is 92 years old. he is sharp as a tack. nothing makes me happier today than knowing he is watching and that he is getting to see what has become of my career. i thank him for being such a big part of it. and finally i want to thank my colleagues at the alabama attorney general's office. i know they are watching today. they are gathered around streaming this live at the office. they should get back to work soon. in the meantime i want to let them know that i have learned from you and with you. i greatly thank you for everything that you have done.

should the senate confirm my nomination, it will make me proud to say that like many of you unlike both my parents that i will have spent my entire career in public service and that is a great honor. thank you. >> thank you. judge smith. >> good morning. it is a blessing and an honor to be here. i want to thank chairman grassley, and ranking member feinstein for scheduling the hearing. i want to thank senator kennedy for presiding over this hearing as well senator hatch and the other members of the committee. i want to thank president trump for having the faith and confidence in my ability to serve as united states district judge for the southern district of florida. i want to thank the white house counsel, department of justice and their staff. i want to thank the 36 members of the bipartisan florida federal judicial nominating commission that initially vetted my application and qualifications. i want to thank my two home senators from the great state of florida, senator nelson and senator rubio for their support. at this time, i would like to introduce and acknowledge

family members and friends who have traveled to our nation's capital to support my nomination. beginning with my beautiful, loving, and intelligent wife of 15 years tangela smith. she is this beach language pathologist for the miami-dade public schools. she is a wonderful mother and has blessed us with two amazing, talented, and very smart children. we have our daughter morgan who is 12 years old in the seventh grade. and our son bryce who is seven years old in the second grade. both are honor students. i know that because i checked their grades. i want to say congratulations to the both of them. santa will be very busy this year especially if i am confirmed before december 25. i want to thank their school, not only for their support for recognizing the importance of having our children witness firsthand an opportunity of a lifetime to observe this invaluable judicial process.

when the process is over, and a matter what the circumstances are, i hope that i have inspired our children to stay humble, and never doubt your faith, never abandon your dreams and never compromise your integrity. one day you both could be sitting where your dad is. i love you unconditionally. i want to thank my mom, sharon for her love and support. i want to thank my friend larry , an extraordinary attorney and philanthropist. my friend and neighbor of 15 years is the city attorney, my sun -- my friend samuel who is the executive director for the baltimore county rules. my friend chris norwood of norwood consulting group. i also want to thank my church family from the newburgh baptist church cathedral of faith international where victor -- bishop victor is our senior pastor and teacher. we have from the church the

tylers. i give sincere thanks to other friends and family members and judicial assistant and bailiff who are watching this hearing on line. i want to thank my wife's parents, my wonderful in-laws. they live in blakely georgia and unfortunately they are not here because they were impacted by hurricane michael. this catastrophic storm also impacted a home of my aunt and uncle in tallahassee. please know that our hearts, thoughts, and prayers are with them and many others were also impacted. in closing, i humbly and respectfully respect every senator. i look forward to answering your questions. thank you. >> judge smith, is this price behind you here? >> bryce, how are you? do you have anything you want to say? if you do, just holler.

>> okay. good to see. >> thank you senator. like my colleagues i want to thank senator grassley and ranking member feinstein for scheduling today's hearing and senator kennedy. and all the members who came today for the hearing. next, i would like to thank senator rubio and senator nelson for their support of my nomination as well as lieutenant governor lopez and the members of the bipartisan florida judicial nominating committee that when -- recommended me to the senators. i want to thank president trump for nominating me. i'm humbled and honored by the confidence he has shown any to this nomination. it is without question the highlight of my professional career. i would like to thank the white house attorneys and the justice department attorneys for their guidance to this process. i would not be here today without my wonderful family who

shows me unconditional love and support. with me today is my wife edie. we have been married for 23 years. she is my best friend, closest confidant, biggest supporter and a wonderful mother to her two children. edie is the ultimate team player. yesterday was her birthday. she spent it helping me prepare for this hearing rather than celebrating. i owe her a nice dinner tonight. unfortunately our children were not able to be here with us today. they both have school and other activities at home that they couldn't miss. our daughter emily is a sophomore at florida state university and a third- generation seminal. she originally planned to major in elementary education but she recently made the mock trial team and is now thinking about going to law school. our son ty is a sophomore at child -- giles high school. he is a retired little league baseball player, an avid hunter and fisherman and an all-around

great kid. i'm extremely proud of both of them. >> i want to recognize my parents who are both watching today's hearing on line. my mom is a retired high school and college math teacher. she instilled in me the importance of a good education, a lifelong love of learning and a compassion for others. my dad is a retired university president and a former state legislator. he is the strongest person i know and instilled in me the value of hard work, perseverance, and the importance of public service. i would not be heard today without the strong foundation my parents gave me and for that i will be forever grateful. i also want to recognize my mother-in-law, peggy watson and the entire watson family. they welcomed me into their family from day one and have been externally supported over the years. i only wish my father-in-law, dyck watson was alive to see this day. he was a longtime state trial judge and a mentor to me both on and off the bench. if i end up being half the judge that he was, i will have done all right.

finally, i want to acknowledge the many exceptional lawyers and judges i have worked with over the course of my career at the florida attorney general's office and the hopping law firm and the division of administrative hearings in the first district of appeals. i have been fortunate to work with many smart and talented people. while i can't thank them all today, i want to thank them collectively for making me a better lawyer, judge, and person. thank you again for the opportunity to be here and i look forward to answering the committee's questions. >> thank you. senator hatch. >> i want to congratulate all of you. i support each and everyone of you. we are proud of you. as a former federal trial loyal -- lawyer, i appreciate these particular positions that you are nominated for. i intend to support each and every one of you and i will do everything in my power to make sure your nominations go through. so thank you. and thank you mr. chairman. i have to leave. i just want you to know i

wanted to stay in here each one of you say what you wanted to say. thanks. >> thank you senator kennedy. and your senator hatch's comments. i want to thank each of you for your willingness you have to serve our country. in these days often the pressures and the difficulties that come with being willing to step up are intense. it is important that people like you are willing to step up and help serve and make this american nation strong. in your cases help to make sure that our bedrock system of being a nation of law and order is protected and strengthened. i think you all for that very much. i don't have any questions for any of you. no problems there. thank you. >> senator sass. >> thank you. i would like to also

congratulations to all five of you. before i address a couple of questions to you. i would like to make a comment on allison jones rushing's nomination. i know age and life experience matter. i like to underscore the fact that relevant appellate experience is incredibly important. young partners that firms. this is a super lawyer. but unlike the regular chairman of our committee, chairman -- are like the chairman, i'm not an attorney. as i have gotten to know many of the nominees coming before the committee, senior partners often spent a lot of time on demonstrated in management duties. and people who help lead the appellate practices often have really distinguished credentials. we have numerous examples, people like justice neil gorsuch , edith jones, some of the most impressive people that ended up widely respected in the circuit courts in this country refton

folks that came from an appellate background and were put on the circuit courts at a young age. i know that both senators burr and telus and the white house counsel's office and ultimately president trump have taken judicial selection very seriously. i would like to say for the record that i think they have made an inspired choice in ms. rushing. someone who i think is going to be confirmed and serve with distinction on the appellate court. i just like to sit up. to the five of you, there is a lot going on in our country right now in terms of an erosion of an understanding of the first amendment. one of the things that troubles me the most is a former college president is this new category we have where we talk about speech we don't like as potentially a form of violence. i would love if we can start there with you at the end. i would like to come down the line. if you can give, john kennedy has a great device he uses. he says pretend i am a high

school sophomore and i have not been paying really good attention. what is the first amendment about. >> as a parent of a high school sophomore, i feel uniquely qualified to answer that. >> please don't overseer. >> it is about freedom of speech. and the part that may be you are getting it is also freedom of religion obviously. but i was taught that the first amendment was about the marketplace of ideas. and that it was a good thing if people had disagreements to talk about them, we hashed them out and we each figure out what the truth was. to meet the first amendment is the marketplace of ideas. in the area of religion, obviously each person has a right to pursue whatever religious calling they happen to feel. if it is a methodist, or catholic or what have you. those are my brief thoughts as i explained them to my sun -- son ben who is here who is a

10th grader. >> ben, you got off easy. >> the first amendment establishes many freedoms. the right to free speech as you discussed. freedom of religion, freedom to express yourself, freedom to assemble. things that we all consistently think about during the day. maybe not overtly. would we ever be able to give up one of those freedoms? and still be a nation? it is something to think about and something we need to talk to our children, school-aged children about. for me they are fundamental freedoms that should be protected. to your question about freedom of speech, we have to to be free to express ourselves. that means we have to be able to listen to contrary views. if we are going to have free speech, it is free speech for everyone.

republican, democrat, everyone, regardless of their personal, political views. that is what makes our country great. we can debate these issues and we can do so civilly. i hope we can do so civilly. >> it is a republic if you can keep it. >> my answer to your direct question would be the first amendment is a limit on the power of the government, like all of the amendments. it is a limitation in this instance of the government on what you can say. like my colleagues, i agree the point of the first amendment is to allow us to say what we think is necessary. the same reason we have the right to assemble. or to petition the government. we should not be protected against opposing viewpoints. even if we find them hurtful, or we strongly disagree. persons must be able to say that because that is how american discourse has led to this great nation. >> well said. the american idea is that god gives us rights by nature.

and government is our shared project to secure those rights. government isn't the author or source of those rights. government is limited to the dignity of people can be played out in a marketplace of ideas and persuasion and love. >> i agree with my fellow colleagues. i would like to add that it is the freedom of expression to feel and say we believe. however there is always limitation in terms of how this beach will injure someone. you can just yell fire in a theater. you can say and do what you want to do, however you should be able to express yourself in a decent manner without worrying about someone being offended. it always draws the line on how someone -- on how this beach impacts someone physically. that is my understanding. you can't criticize elected leaders in some countries. america is the bedrock. you can't get punished while speaking your views. >> i appreciated where you ended.

i want test one clarifying question. >> you can't use your speech to incite someone else to violence. but just because people differ about theology, if they differ about heaven and it is not the government's job to sort that out because it might hurt someone's feelings. we are protected to disagree about things that are big and beyond the paygrade of government. >> correct. >> i'm not sure i can add much to what my colleagues have said. i think the first amendment captures the essence of our freedom to say and do and believe what we individually want to. maybe not to the high school sophomore, but down a little bit further i go back to the sticks and stones can break my bones but words can never hurt me idea behind the first amendment. the first amendment protects things you want to hear as well things you don't want to hear. we should not be afraid of her fear words that might hurt our

feelings. the more words in the public discourse, the more speech in the marketplace is a good thing. it advances us as a society rather than hold us back. >> the american idea is the response to speech you don't like is more speech, not less speech. bigger and better debates and persuasion. >> thank you very much, congratulations on your nominations. >> thank you. before i forget, for the record senators rubio, shelby, and jones have submitted statements of introduction and support. without objection they will be admitted into the record. >> i want to talk for a few minutes about nationwide injunctions. do you all know what i'm talking about? that is where a single federal

district judge can enjoin a prosecution of a particular statute. i don't know how many federal district court judges we have, let's say 600. i don't think that is too far off. one federal district court judge can enjoin a statute let's say nationwide. shut it down even if the other 599 district court judges disagree. in other words you are not limited to your own jurisdiction. everybody following me? okay. let's start with judge wetherell. what is the legal basis for that? you are going to be faced with it. >> i understand the concern you are expressing. i want to be very careful here.

the issue about the legal authority for nationwide injunctions is an issue that is currently percolating through the courts. >> i'm not asking you to tell me what the law should be. i'm asking to tell me what the legal basis for his. >> i think that fundamental question of what the legal base is, is there authority for judges to enter nationwide injunctions is the question that justice thomas spoke about in the travel ban cases this past year. i think that fundamental issue is before us. i think what you are getting at is the issue surrounding it. some of the things the court have to look at is that beyond the courts authority to provide relief to parties that are not before the court? it is an article 3 standing issue as i understand the fundamental concern because once the court gets beyond adjudicating the case in the

parties directly before it, the concern can be that the court is acting more like congress which is affecting people who are not necessarily before. those are the issues. >> can you tell me what the legal basis is? >> with respect to the legal basis on that issue nationwide, i would have to look at the brief. as a city judge i provide over 2000 cases. to give an opinion over something i don't have a brief for both sides, i need to give everyone a fair opportunity to hear. and to bring an opinion on something i've yet to experience. >> mr. maze, what is the legal basis? >> if the party was in your case, at that point you have jurisdiction over that party. i would share concerns over and joining parties outside of your district. you are not before you. that said i'm not sure i should go under further.

at that point would be stepping into an open political controversy. >> what is the legal basis judge berger? >> i would echo what mr. maze said. i liken it to if the case has not been decided as much as we were to render a decision on our court, first impression the other district courts have not ruled upon, other trial courts in the state of florida would be bound by our courts decision unless the supreme court said otherwise. >> i will say this much. i don't know a lot about that. i took several courses in law school and federal courts. i never learned about that. it was never taught. it seems rather new.

congress controls the jurisdiction of the federal courts and i remember that. that is as much is like an answer to. >> fair enough judge. >> i don't have any intention to ask you whether you agree with the servants of court case or you don't. i am just going to ask you a question that is on my mind. tell me what the law is today as you understand it. some universities in our great country, and i do not say this in a pejorative sense, i think it is a factual sense. they contend that they have figured out a way in college admissions to discriminate in the right way. there is a moral way to

discriminate. and i understand that is being litigated. so i'm not going to ask you about that. i want you to tell me what your understanding of law is. i will start with judge barber, on using ethnicity as a factor in admissions to the university today. just the state of the lot as you understand it.

i'm having to drop back, this is not something i have thought about. but i but -- do believe that they can use ethnicity as a factor in diversity of students. but, i am not altogether sure. >> i would start with the 14th amendment, which ensures equal protection for all persons regardless of race, and this will be a racial classification, . -- i know you are referencing the harvard case, that is what's in the news. that would be different because harvard is a private institution. if it were a government school like michigan, we would look at scrutiny. i'm not going to comment on what i think should be done on the harvard case for canon

reasons. but we have to look out what supreme court precedent is on point. the court has interpreted the 14th amendment a certain way. they would apply those cases to whatever case we would get. >> i believe a scrutiny test would apply. my memory serves correctly on those issues. >> senator, i think i will have to claim slight ignorance as farber did, that's not an issue that has come before me in the time that i have been on the appellate court. my recollection is consistent with him, it's a factor that can be considered as part of a larger cafeteria factor with the goal of motivating diversity within the student body. beyond that, i would have to look at briefs and arguments into a little more research

when the issue came before me. >> fair enough. >> let me ask you this, in the role of legislative history. i think it's generally accepted supreme court practice now, president, that all justices have accepted. the first thing to look at is the statute and you ask is it ambiguous? and if it's not ambiguous, you don't go any further. right russian mark do we agree on that -- right? do we agree on that? if it is ambiguous, we do go further. we look at the facts. if you have a statute in front of you that is ambiguous in your judgment, to what extent, if any, -- i will start down

here -- do you think the court should rely on legislative issue. >> i guess it depends on what you mean by legislative history. if you mean floor statements, committee reports, i think those would be much further down in the toolbox, so to speak. >> as opposed to what? >> as opposed to looking at the progression of legislation from the version previous to the version present to see what change was made in helping you understand what the current ambiguous language means, you might look back to the prior language and assume that congress intended to make some sort of change. perhaps that would be a tool to help you interpret that language. >> judge smith. >> i would look at anything

leading up to the statute is not law. if i don't find anything on the same subject, i would look for reasonable interpretation. >> little, to none. i think if the answer could be gotten by getting the text, that should be the end of it. we are bound by those interpretations, but you can find the answer in the text, then i would not look at the legislative history. it would be a last case scenario. >> okay. >> we do this every time. i think legislative history in the form of floor speeches, staff analysis, are a great tool for high school history projects, but not a good tool for judging. and so, i don't think that what you would say on the floor in a speech or what a staffer would put in a report reflects the

reason why the law or -- you cannot derive it legislative intent from that date that she type of legislative history. i would look in terms of a prior version of a similar statute to see if something was added or deleted. that might give us a hint on, to clear up some ambiguity. beyond that, and beyond president out of the 11th circuit of appeals, then that's what i would rely on. >> okay. >> i've got the easy spot on the end on that one, and i agree with my colleagues. i could see and -- a situation where the legislative history was clear, sometimes you do agree. almost all of you, perhaps in

that situation, if the statute were for whatever reason ambiguous, that would be something i think would matter and i would be willing to look at that. otherwise, probably, i would be a little spit there she suspicious for the reasons mentioned. >> this will be my final question, senator barbara. how long have you been a lawyer? >> 25 years, i think. and you've done all of your 25? how long have you been a lawyer? >> 26 years. >> how long have you been a longer -- lawyer? 18 years. >> i'm trying to do the math, i was admitted to barr in 1995 so i think that is 20 -- 23 years. >> could i correct the record? those of us who were lawyers are not good at math. [ laugh ]i just realized -- i

just realized that i have been a lawyer 26 years.[ laugh ] >> congratulations to each of you on your nomination, i don't have any more russians. do you have anything? nothing? you got anything you want to say, bryce? tell us what you think, man. you get anything you want for lunch. you have been so good. >> it's good for us to learn about the law. and so, we cannot say bad words because he might destroy your earth. >> that is way cool. [ laugh ] >> has a good day. >> okay. [ laugh ]i don't want you to ever run against me bryce. let's see what else my team is telling me i have to do.

thank you for your testimony, i have to read this. thanks -- thank you for your testimony, i expect members will have written questions for you, which you can expect next week. we will keep the record open for one week. thank you so much, congratulations. and i enjoyed this very much. >> thank you senator. >> the meeting is adjourned. t

like to introduce into the record which we will do without objection. missus rushing graduated from wake forest university. she received her jd from duke law school and she is an clerk for three judges