breakdown on how many of those claims are member sexual harassment. i think that's a fair question, something we should be able to come up with. included in that, that is for the entire legislative branch, all of those claims. so 2002 there were a large number of anthrax claims. in 2007 there were asbestos claims. so you have those that come through the, for instance, the capitol police, the architect of the capitol. then there are those that come through house offices. so i think it would be fair to see what's that breakdown, what's that number of claims that actually are member claims that go to sexual harassment. i can only tell you that no claim of any nature has come to my desk in the 11 months i've been chairman. >> thank you. >> again, the house will take up that resolution which would require anti-sexual harassment and anti-discrimination training for all members and their staff. when they return, the house

will take it up later this afternoon. they gavel back in at noon eastern. live coverage here on c-span. and until then we'll take you live to the senate judiciary committee. they're considering several of president trump's judicial nominees. [captions copyright national cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> on my dad's side, my grandparents were north louisiana charles and june green. they were remarkable people. they 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 recognize my grandfather vince. here's a man whose parents immigrated to louisiana in 1905. i saw the manifest of the ship from italy. nd my grandfather was called v.j. by his family. he was a roofer in louisiana.

i think i worked hard in my life but i have not worked nearly as hard as my grandfather did on any given day. he was a great man, intelligent man. although he had to leave school in the eighth grade. he was a role model for me. i know if you can see me here today he'd be proud of me. with that i want to thank you, again, for holding this hearing and i look forward to answering your questions. senator grassley: justice stause. thank you, all, senator klobuchar, following your very kind introduction. thank you, as well, to chairman grassley and ranking member feinstein for holding this hearing. to the other members of the committee for your consideration and to the president for nominating me. i would like to start by introducing my guests. first, my family. including my wife of 20 years, heather, a licensed clinical social workers who works with individuals suffering from addiction. also here today are my two boys, first is brandon, who is

17 and senior at wayzata high school. and my 10-year-old, ben, who decided to come despite the fact it meant missing basketball and soccer practice this week. second, i am honored the number of minnesotans have joined me here today, including former nited states senator rudy bosh wits. jewish council director. and robin, the immediate past president of the minnesota state bar association. also here are charlie, commuck and david, all prominent attorneys in the twin cities community. thank you so much for coming. i would also like to recognize the many people who supported me throughout the years who could not be here today. including my family, my friends and my colleagues, past and present. in particular, i would like to recognize my grandparents who are holocaust survivors and whose sfoitses allowed me to be here today.

i'm incredibly honored to mind fives sitting in the same seat as the three judges for whom i clerked. as a young law clerk i could not imagine a career that would lead me to where i am today. i am deeply humbled by this opportunity. if confirmed, i will remain committed to interpreting and applying the law in an impartial manner. as i have done for the past seven years as a justice on the minnesota supreme court. thank you and i look forward to your questions. senator grassley: we will have five-minute round requests and i'll start with justice stras. in several of your opinions you discussed your role as a judge. you noted that, quote, my role as a judge is not to implement my own policy preferences but to interpret the law as written, end of quote. and 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 your statements, and i think what you're trying to say is what judge's role is different from the legislature? mr. stras: those arose in the context of separation of powers. had a number of those cases over my last seven years and i think what i was trying to get at and i know what i was trying to get at in those particular cases is judges need to have a healthy respect for the other branches of government. we have a trigovernment and judges need to recognize that legislatures are the ones that write the law. the executive branch often implements the law and judges are by constitutional design supposed to decide disputes and those cases i think we're trying to recognize a robust separation of powers between the various branches. senator grassley: in your seven

years there on that supreme court, you participated in over 750 decisions. of those, my research says you dissented in approximately 50 cases. over 20% of those dissentence were joined by at least what other people have characterized as liberal justices. you've also joined separate opinions by several liberal justices on multiple occasions. it seems to me you haven't voted consistently with justices appointed by either republicans or democrats. and how did it turn out that way? . stras: that's correct, chairman grassley. my guiding principle is i read the briefs, i listen to the oral argument carefully that the parties give and i try to figure out what the right answer is. i try to figure out what result the law compels. and i apply that law to the facts in a given case and

sometimes i end up agreeing with republican appointed justices. sometimes i end up agreeing with democratic appointed justices. but in all cases i used my best judgment and i tried to figure out what the law compels. and in fact, one of my colleagues who is known as liberal justice anderson, i know senator klobuchar mentioned justice this morning, one of the reasons he's supportive of my nomination is i'm objective and open-mind. senator grassley: mr. duncan, i was told you were louisiana's first solicitor general and you accepted that position. how and why has that position prepared you for a seat on the fifth circuit? mr. duncan: well, thank you, senator. in that position and -- in that position i was able to represent my home state of louisiana in some very difficult and high-profile

cases in the fifth circuit. and the louisiana supreme court and the united states supreme court. when you're in that position and you're having to make arguments in difficult cases, my approach was, you have to take the politics out. you have to focus on the law. you have to think very carefully what is persuasive to a court. and you have to make the most reasonable and zealous argument that you can within the bounds of precedent for your client. so you have to think about 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. so you can't go into court and say you should disregard precedent. that would be a loser of an argument. you have to go into court and you have to explain to the judges what the law means. and i've had to do that in some very difficult cases.

cases really on both sides of 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 had to focus on the law and i think that prepares me to do what a judge does which is focus on the law and not on politics and not on policy preferences. senator grassley: my last question for the two of you, for mr. duncan, senator kennedy pointed out your first amendment religious liberty cases but the circuit court has a greater variety of cases so please describe the experience you've had working on other types of cases that you'd like to see as a circuit judge. mr. duncan: certainly, senator grassley, chairman grassley. so beginning in my career in texas and going over to louisiana, i dealt with sort of the whole gamut of cases that would come before the fifth circuit. i'm thinking of cases on sovereign immunity, on qualified immunity, section 1983 liability, municipal

liability. i was trying to total up the list and i think i had a case on just about every one of the bill of rights except the third amendment. there's not many third amendment cases. i've handled cases for the government. i've handledcations against governments. i've handled cases in the civil docket. i've handled cases on the criminal side. just trying to total up all the subject matters of cases that i've dealt with over my year -- my 20-year practice was really difficult to come up with the end of the list. so id a great deal of experience across the gamut. would add the fifth circuit multijurisdiction. general maritime law. i was fortunate enough to teach that subject to the university of mississippi law school. it's one of my favorite subjects. and if confirmed i think it would be an absolute delight to participate with the great judges of the fifth circuit ined a mirity cases.

senator feinstein: i want to make the comment about the young people here. they generally sit in the front row so i have an opportunity to observe them. and i just want to say that 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 twoucks, -- in 2016, mr. duncan, you submitted an amicus brief in support of a texas law voter posed a strict i.d. requirement. you argued, and i quote, voter identification requirements not only help prevent voter fraud but also foster public confidence in elections. thus pa sill tating the peaceful, orderly transfer of power that's the hallmark of american democracy. question, what evidence did you

have that voter fraud is a widespread problem? mr. duncan: thank you, senator feinstein. i've been involved in a couple different voter i.d. cases. one for the state of north carolina. one for the state of texas, amicus, as you point out. as i recall in that brief we were thinking of the crawford decision from the united states supreme court which found that voter i.d. laws are prophylactic and they prevent the opportunity for voter fraud even if voter fraud goes undetected. and so that's what very much we were thinking about in those cases. that's what we thought about in other cases. i recognize, senator, those cases are very difficult cases. for example, i was asked to file a cert petition. it's one of the most difficult cases because you are dealing with a lower court opinion that was something like 485 pages long that meticulously went through and found that the

voter i.d. and other laws issued there really didn't lower minority participation. in fact, increased minority participation. and then you had a decision from the fourth circuit that went radically the opposite way. we were just hoping to get that case to the supreme court so the supreme court could give us the proper analysis. and it was just a very difficult case. senator feinstein: what do you believe today? mr. duncan: i'm sorry. senator feinstein: what do you believe today about voter fraud? do you believe it's a big problem or do you believe, as most of us do, that's minuscule? mr. duncan: i don't have a personal view on that, senator. i believe what the supreme court said in the crawford v. indiana decision, which is that voter i.d. laws can act prophylactically to prevent voter fraud. that's the precedent of the supreme court and i think that's proposition that case stands for. senator feinstein: and you think that's a justification for passing a law that it can act prophylactically so you

pass it? mr. duncan: senator, i think that could be one justification for any law that requires someone to make sure that they're the proper person who's voting. senator feinstein: ok. you defended laws in texas and louisiana that severely restrict women's ability to access reproductive health care by requiring physicians to have admitting privileges at a hospital within 30 miles of a facility where abortions are performed. you argue the requirements were medically reasonable and focused on enhancing the safety of women seeking abortions. on what medical evidence did you base your conclusion that admitting privileges enhanced the safety of women? mr. duncan: senator, as i recall, that was an amicus brief on behalf of a number of physicians and surgeons associations. as i recall, we went deeply

to what were called hospital privileging guidelines for recognizing -- privileges are appropriate. we were representing really parties in that case making an argument about the efficacy of those laws. we recognized the supreme court came to a different decision. that's what i've done for a good part of my career is make arguments for parties in litigation. but i recognize there is a really fundamental difference between being a party for a client -- a lawyer for a client where you're making arguments in the client's interest or in the amicus' interest and being a judge where the judge is to apply the law, the precedent of the supreme court or whatever circuit you happen to be sitting on, without any consideration of personal preference or disagreement. so i recognize that's a fundamental distinction, and i can give you lots of examples

from my career where i recognized that. senator feinstein: well, thank you. 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 knew of a single instance in which the new admitting privileges obtain better treatment, texas admitted there was no such evidence. were you aware of any evidence? mr. duncan: well, senator, this is the -- let me just make it clear what position i'm in here. i currently represent louisiana in a similar case. and so i got to be careful what i say about pending litigation which i represent a party. i know you appreciate that. let me try to answer the question this way. our understanding of the hellerstead case which is the case you're referring to which is a precedent of the united states supreme court which is worthy of being followed just like every other precedent of the united states supreme court. our view that we've taken in litigation is that precedent is driven by the facts of the

record. in that particular case. i think justice breyer's opinion made that a big part of the case. that it was looking at the record facts that were found by the district court. i believe it was judge yakele in that case in austin. and the position that we are taking in a similar case is there could be different record facts and in fact we're arguing to the fifth circuit right now there are different record facts in a different case that should lead to a perhaps different outcome. that's our argument. senator feinstein: ok. excuse me. justice stras. oh, my time is up. no. sorry. thank you. senator grassley: except for senator leahy and ranking member feinstein and former senator hatch, i'd like to have people, if you ask your question within the last second and you get your answer questioned, when it's answered as long as you start before the

red light goes on you can answer your question. senator kennedy. senator kennedy. senator kennedy: thank you, mr. chairman. mr. justice, mr. duncan, you have incredible resumes. only better than your resumes are your families and i agree with everything that senator feinstein said. i know you meant well, mr. duncan, but you got nothing to apologize to me about. i don't feel disrespected. if i did it wouldn't matter. i used to be the tax collector or the state of louisiana. 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 for maybe in pick

my lifetime, maybe not yours, to have a louisiana person to sit on the fifth circuit court of appeals. if you can give me a number or a yeah or nay, there are a couple things i need to get out of the way. they may seem weird to you but based on some of the past nominees that have come before like i need to ask them. mr. justice, have you ever blogged anonymously or otherwise in support of a cu -- ku klux klan? mr. stras: no. mr. duncan: no. senator kennedy: have you blogged that a child is part of satan's plan? mr. stras: no. mr. duncan: no.

senator kennedy: have you said someone is a prostitute? mr. duncan: no, senator. mr. stras: no. senator kennedy: how many jury trials as you done as lead -- mr. stras: summary judgment stage. i have not tried a case. senator kennedy: how many bench trials have you tried to verdict as lead council? mr. strast -- mr. strass: i have not. -- mr. stras: i have not. mr. duncan: no jury trials, senator. senator kennedy: how many bench trials? mr. duncan: i have done two bench trials. judge feldman and judge

diegerfeld. senator kennedy: both good judges. let me get this one out of the way because this five minutes goes real fast. mr. duncan, you heard my opening statement. tell me what i say -- i have gotten scores of calls from lawyers back in louisiana who say, hey, you know, i'm experienced, i'm pro-life, i'm pro-religious liberty, some of them are judges. i'm thinking of a person -- what do i say to a person, for example, like alan as to why i would not pick somebody who's been in louisiana for a while as opposed to picking somebody in washington, d.c.? mr. duncan: thank you, senator. i would start with, i was born and raised in louisiana. i was educated in louisiana. 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, 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 hompson v. connack to defend that and overturn that judgment. it was not eyesy to defend -- senator kennedy: let me stop you. we have 30 seconds and we have a tough chairman. let me 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? mr. duncan: if i were a senator? senator kennedy: sitting on judiciary. mr. duncan: i will answer -- no kennedy: i didn't curse, did i? r. duncan: no. i think louisiana would run against me. senator kennedy: i am done, mr. chairman. i'd like to reserve the right th your permission for a second round. enator grassley: [inaudible] senator leahy. mr. leahy: thank you, mr. chairman. senator from louisiana, i guess

i am not important enough or been here long enough to have somebody tell me how i had to vote but i will rely on his experience that that might happen. senator kennedy: i think they knew i was new and from the south and therefore stupid. senator leahy: obviously you don't mean i thought that way. senator kennedy: not you, of course not. mr. leahy: i am from a small town in vermont. i guess they didn't think -- telling me how to vote. i do fear -- i watched this committee, i've been on this committee for 40 years. i served here for 42 years. eight different presidents. both half a dozen times in the majority. half a dozen times in the inority. independence of this committee. worrying that independence

is disappearing. it's becoming a rubber stamp for the president. something i have not seen with republicans or democratic presidents before. we've worrying that independenc. at the request of president trump and circuit court nominees this month alone. that's five. i put that in the context of chairman grassley allowed only five in -- senator grassley: you're right when you say i am not going to take away from your time. start his time over. but one of the reasons we have -- we have three wenses this month. that's one reason you have more hearings than normal because we have a hearing every other wednesday. mr. leahy: finish what i was saying. we had five hearings this month alone and to put that in perspective, the chairman allowed only five hearings in two years in the obama

administration. so whether you have three weeks or how many, we had this fourth nomination hearing in six months with two circuit court nominees on the same panel. that's more than we're allowed like that in all eight years of he obama administration. i'm concerned the chairman, one of my oldest and best friends here, has reversed his own blue slip commitment now a republican is in the white house. blue slip rule that he applauded and supported when there is a democrat in the white house but then switch it with the republican. will say in 40 years here i'm used to more consistency in this committee. t mr. duncan, you have

litigation experience which i appreciate. i've tried dozens and dozens of cases before i was -- in the 10 years before i was in the senate. i know how important litigation experience can be. ut being well qualified is not always a prerequisite for this president. [inaudible] others have proven that. i suspect you're here because of your consistent advocacy for laws that banned same-sex transgender it rights allow religious rganizations to deny contraceptives to employees. and president said anyone on his supreme court short list which includes you would automatically vote to overturn roe vs. wade.

the president said you would automatically do every nominee tells us they'll respect precedent. with all that why would we believe you would? mr. duncan: thank you for talking about my record, senator. senator leahy: just answer the question. mr. duncan: just a point of clarification. i am not on the president's short list. i'm just not. . i can't really address that you've listed some of the cases i did as government attorney and attorney in practice. i could name a number of case -- and some people may look at those cases and say, well, those are conservative cases. i can list a number of cases that one might look and say they're liberal cases. and so i've dealt with a broad away of cases. let me just give you a quick

example. i supervise litigation against the florida prison system that was denying jewish inmates kosher food. and in that case, in that case the obama civil rights division came in on our side and resulted in wholesale changes to the florida prison system. there's another case in which a mosque, some muslims in murfreesboro, tennessee, were about to be run out of that little town because of discriminatory zoning practices. we went in and got a t.r.o. to prevent that from happening. again, the obama 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, well, you dealt with these sort of liberal kind of individual rights cases. senator leahy: when i first ran for the senate because i had been the most active prosecutor vermont ever had my opponent said i was probably too conservative to be u.s.

senator. so. mr. duncan: i couldn't agree with you more on that point, senator. i don't look at the cases as lift or right. -- left or right. enator leahy: after a decision which denied same-sex couples -- ight to marry, you [inaudible] do you believe that justice kennedy's opinion threatens civic peace? mr. duncan: senator in that article what i was saying -- what i was -- 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're willing to accept a decision. senator leahy: do you believe that justice kennedy's opinion threatens civic peace? mr. duncan: what i said in that

article it's important for the supreme court to recognize both sides were honorable participants. what i said in that article is it tried. 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 -- not to demonize your opponents, basically. senator leahy: i understand that. do you think judges should consider whether decisions might be socially divisive when they're determining fundamental questions and novel issues? mr. duncan: i think -- well, two answers to that. i think if the governing law requires an analysis of divisiveness which you get in some cases then the court ought to consider that. but as a general proposition, i think courts should foster civic discourse, dialogue, should treat both sides with great respect. that's what i tried to do in my

litigation, even in cases where feelings run high. i try to treat the other side with a great deal of respect and make friends with your adversaries, so to speak. senator leahy: would that change the decision in broun vs. board of education? mr. duncan: as i understand it was a unanimously decision and the court went out of the way. senator leahy: they had to wait one to leave. mr. duncan: to justice warren a great judicial statesman, made sure to -- that the court's decision would foster an acceptance of that decision. i think that's an extremely important function, especially for the supreme court. less so perhaps for circuit court. the circuit courts are not in that position very often. that exalted position to the supreme court. still, i clerked for john dewey. he had a reputation on the court where judge king, she would come to judge dewey and

because he was such a moderate person, he was a peacemaker, she would come to him and when the judges were getting irritated at each other, i guess. he told me that one time. he made an impression on me. he was an excellent judge. big role model for me. senator grassley: i feel i got 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 it's been said this committee's fifth hearing with two circuit nominees on it. my colleagues on the other side cite the years as senator leahy's chairmanship and i won't question what he did but this committee has a 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 with -- for seven circuit court nominees. i haven't heard any complaints about that. we have held hearings with multiple circuit court nominees under both republican and democrat presidents and under both republican and democrat chairmen. so nothing new. as an example, senator hatch as chairman held three or more hearings with multiple aplate court nominees at least -- appellate court nominees at least eight different years. some suggest this isn't enough time to question circuit court nominees when there's more than one on a panel. i never refused to as today will let people ask questions as long as they want to. my colleagues also bring up the fact that they don't have sufficient time to review nominees' files. if we were able to handle

multiple circuit court hearings five times for president clinton in 1998, i don't believe 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 7 when he submitted his material to the committee. and in 1998, chairman hatch held five hearings with multiple appeal court nominees for a democratic president. there were only 74 vacancies in 1998. now there are 126. it's important that we move excellent nominees forward. senator lee. senator lee: i think, mr. chairman -- senator grassley: go ahead. senator leahy: numbers are numbers. chairman ars you were chairman

with president obama you felt we only had time for five hearings in two years. so we have plenty of time to look at the people i just would like something approaching that kind of standard. senator grassley: senator lee. senator lee: mr. duncan, how many appeals have you argued? mr. duncan: senator, i've been trying to figure that out. i just -- the reason it's difficult is so many appeals and solicitor general 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 arguments in the united states supreme court and numerous cases on the briefs. that didn't get to argument. so i think a fair number. senator lee: these are separate disciplines. trying cases versus arguing. mr. duncan: absolutely.

senator lee: different skill set. different style. it's a different function, isn't it? mr. duncan: yes. i completely agree with that. it was a choice i made early in my career. one reason i went from louisiana to texas early in my solicitor as general's texas, there was a specialty doing appellate law. it's a different skill set. it's one i thought i would be more adapted to. i liked research and writing more than picking juries, i guess. senator lee: if confirmed to the position you have been nominated, how many trials would you be doing in that capacity? mr. dun ran: i wouldn't be doing trials. -- mr. duncan: i wouldn't be doing trials. it is sitting on an appellate panel and listening to the arguments and of course i am very familiar with 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 fivert circuit is -- it's fifth circuit, it's a mag sieve sent court. senator lee: justice stras, how many appeals have you decided as a member of your state supreme court? mr. stras: we had our commissioner's office look at that. at the last time i had the senate judiciary questionnaire, it was 50 peels decided and more than 3,500 petitions to review which is i voted on whether to grant review. senator lee: what portion of your docket is discretionary versus mandatory? mr. stras: we heard about 100. seven is disary and 40 is combination of first-degree murder appeals which comes to us directly. attorney discipline cases. workers' compensation and tax court cases. senator lee: and here again you have been nominated to an appellate court, not a trial

court. involves a separate discipline. but the appellate courtroom is no stranger to you or to mr. duncan. mr. chairman, i got a few letters that the judiciary committee has received with regard to kyle duncan. i'd like to introduce a few of those. we received one letter from 31 louisiana lawyers. 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 exceptional well qualified to serve as judge on the fifth circuit. he'll make everyone in louisiana proud. also got a letter from an l.s.u. 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 he was opposing counsel in this very

high profile and contentious case mr. beyer said, kyle duncan is a magnificent nominee. fifth make surpassing circuit judge. please support your confirmation with all your might. finally, i'd like to submit in the record with 19 former and present state solicitors' general. we all agree that kyle duncan has the personal and professional qualities that should typify the federal judiciary. mr. chairman, i'd ask -- senator grassley: without objection, so ordered. senator lee: 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? mr. stras: thank you, senator. the role of a judge is to exercise judgment. one of my colleagues that was referenced by senator klobuchar

says we exercise our judgment. we do not impose our will. d you lay aside any biases you have, you read the briefs on the merits and you try to decide the case best you can based on the law before you and the facts and it's really just a matter of coming in with a clean record and trying to figure out what the right answer is. senator lee: mr. chairman, i see that gavel is ready to pounce so i am not going to try to exceed my time. thank you. senator grassley: before i call on senator durbin, i want to let everybody know i recognize that senator leahy 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'd find same bigdown turn in the amount of hearings that go on, particularly after the month of april of a presidential year. senator. senator durbin: thanks, mr.

chairman. mr. duncan, more and more we are bringing up the issue of religious liberty in this committee. it's 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, religious freedom, religious liberty home to us where a decision was made that a company, in this case a corporation, hobby lobby, would be treated as a person. step aside from that aspect of the decision, but more importantly, that the religious beliefs, the sincerely held, i believe, religious beliefs 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, i 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 and our constitution by some very basic premises and concepts. the right of religious belief. the prohibition against the establishment of a state religion. the prohibition against any litmus test for public office 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 insignificant in this decision. the fact that that individual employee may have no moral or

religious problem in being covered for birth control appeared to have little or nothing to do with the final decision. if you look throughout our history -- and this is what troubles me -- when you look throughout our history there have been religious rationales for some pretty terrible behavior. there was a time when people made biblical rationization for slavery in this country and found biblical quotes to support their position. that went on for decades to perpetuate this institution of slavery. i always think back of the case -- my colleague -- 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 plural and polygamous marriage in the territory of utah knowing that

some people of religious conviction were engaged in those practices. so i guess i am trying to bring this home to some kind of conclusion. when can i assert my religious liberty and say that means that you can be enslaved? when can i insert my religious liberty and say i don't owe you what would be owed 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? mr. duncan: senator, you put the finger on the question. it's got to be a balance. it cannot be absolute. as you point out, we were doing the hobby lobby case and it was it was case a close case because of the considerations that you just pointed out. the women would be deprived of these emergency contraceptions. it was a difficult case that we had to deal with it at the balancing end. let me address it this way.

after -- i left beckett 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 the arkansas prison officials didn't want to let him grow a half inch beard because he thought he could hide something n there and that's absurd. senator durbin: that's absurd. this is a question of 13,000 people who just went to work for hobby lobby and now they're being told because the owners have a religious belief they are being denied basic health insurance coverage. mr. duncan: it was a very difficult part of the decision. let me assure you of this, senator. that i see this on both sides. i have been on the government side litigating begins people who are making religious claims and i was arguing that side of the ecation. that's actually why i ended up at beckett. 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, you know, branch out into a different set of issues. and i argued on the other side. but now i'm -- now i'm back working for louisiana in many cases and i'm advising louisiana on cases on the other 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're talking about. what makes -- 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 can enslave you, well, of course that claim should lose hands down every single time. courts have to strike that balance. these cases we're dealing with a statute. religious freedom restoration act. or a prisoner statute. sometimes we deal with the first amendment which is a different analysis but i think you're right, senator. it's a balance. it's not an absolute on one side or the other. it's a balance we have to strike properly.

nator durbin: you will never be wronged by saying we are right. senator hatch: we appreciate your willingness to serve. i tend to support you. before i begin i'd like to start by thanking white house counsel don mcgann and the white house counsel's office on judicial nominees. i don't know if we ever had a better white house counsel than don. i can confirm that don mcgann is one of the best people i worked with and we've ever had at the white house. it's a difficult job and i'm grateful work for the -- grateful for the work you've done. let me ask you, mr. duncan, you were lead counsel against the hobby lobby stores. i am sorry if i've -- if i'm

repeating questions. i missed some of it. this case is about whether obamacare's birth control mandate met the requirements of the religious freedom restoration act, my bill by the way. i was a principal author of that law and i think it's pretty clear. one left-wing group says in is case you were -- you were fighting contraception coverage for women. is that true? mr. duncan: 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 co-sponsored, the religious freedom restoration act, to a novel question whether a business is being required by the government to subsidize certain drugs that the business owners just have a

moral problem with, religious problem with. we were trying very hard to figure out how that law applies in this situation. it was a novel question. we had some precedents from 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. we did our best to represent the client, to make the best arguments that we could. senator hatch: i think you did. this same group claims, duncan will not respect precedent when he disagrees with the outcome of the case, unquote. that's a pretty serious charge, is at that true? mr. duncan: no, senator. hit it cis-- antithesis. senator hatch: it may be more difficult to ascertain than we think. mr. duncan: to be sure.

senator hatch: i reject the idea that men and women who hold personal views, for instance, including political or religious views, cannot be impartial judges. i think that's nuts. i reject the idea legal 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? mr. duncan: absolutely, senator. i would be duty bound to do that. senator hatch: i believe that. and i believe you'll make a great judge. mr. duncan: thank you. senator hatch: justice stras, it's been said the court of appeals, where policy is made, i find that an interesting

ascertainment. is your view -- in your view, is that the role of a federal appellate court? mr. stras: the minnesota supreme court has commonly been called a policymaking court but my view of the cases and the law is that i apply the law. 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 and decide the particular case before me. senator hatch: in the 2007 case involving the minnesota genetic privacy act, you wrote that the court reached the correct policy result and if you were a legislator you would vote for legislation of that kind. here's what you then wrote. quote, however, my role as a judge is is not to implement my own policy preferences but to interpret the law as written, unquote. is that distinction between legislators and judges an important guide for you in your

judicial duties? mr. stras: yes, senator, it's absolutely critical. tripart side. a in the particular case you're referencing, senator, obviously i thought the policy result -- that the majority reached reached was correct but i thought the plain language and the application of the cannons indicated that the law should be read a particular way and i went with the language of the law itself. i ator hatch: i asked if could ask one question and he said yes. the clerk dismissed a lawsuit trying to place a measure on last november's ballot. you agreed with the result but wrote that the court should not have reviewed the case at all. that the decision was an advisory opinion trying to instruct the legislative branch. now i see a theme here that separation of powers defines the court's proper role.

why was -- why was the distinction -- distinction you drew in that case so important? mr. stras: it's a critical distinction. the role of a judge and role of courts is to decide actual cases and controversy and we had a number of cases. bigging is one. i wrote similar dissentence, where i said this is an abstract controversy. it's a question for the legislature to consider because there's no longer a live case or controversy before us. so i think that sets a theme of about two or three dissentence i have written over time where i said we need to be mindful of our proper role as judges. senator hatch: well, i support both of you and i want to thank both of you for being willing to serve. senator grassley: thank you. senator whitehouse. senator whitehouse: thank you, chairman. and welcome, both nominees. there is a distinction that i would like to try to elucidate that i hope you will both agree with.