parents, i would have spent my entire career in public service, and that is a great honor. mr. smith: good morning. it is a blessing and honor to be here. i want to thank chairman grassley and ranking member feinstein. i want to thank you, senator kennedy for presiding as well is senator hatch and the other members. i want to thank president trump for having the faith and confidence in my abilities to serve as united states district judge. i want to thank the department of justice and their staff. i want to thank the 36 members of the bipartisan nominating commission that vented my -- my qualifications. i want to thank our two senators for their support. i would like to would like to knowledge family members and friends who traveled to our nations capital to support my

nomination. starting with my wife, dr. smith. she is a speech and language pathologist. she is a wonderful mother and god has blessed us with two children. morgan, 12 years old and in the seventh grade. old andson, seven years in the second grade. both are honor students, and i know that because i check their grades. i want to say congratulations to the both of them. ifaid i would be very busy i'm confirmed. i want to thank their school, not only for their support, but for recognizing the importance for having our children witness the opportunity of a lifetime to in -- to observe this process. when this process is over, and

no matter what the circumstances are, i hope i have inspired our children to stay humble and never doubt your faith, never abandon your dreams, and never compromise your integrity. -- you bothr boat can be sitting where your debt is. i want to think my mom for her love and support. i want to thank my friend, an extraordinary attorney and philanthropist. my neighbor of 15 years, the attorney for the city of sunny out beach florida. chris of norwood consulting group. i also want to thank my church , where our bishop is our senior pastor and teacher. tyler, hiser robert wife and their daughter.

i give sincere thanks to other family members, friends and colleagues and my judicial assistant and a list who are watching this hearing online. in-laws, whonk my live in blakely, georgia. they are not here because they were impacted by hurricane michael. this storm also impacted the home of my aunt and uncle. ourse know that a -- hearts, thoughts and prayers are with them. in closing, i respect every myator voting in favor of nomination for the southern district of florida. i look forward to answering your questions. theudge smith, is this byce -- bryce behind you? do you have anything to say?

if you do, just holler. good to see you. mr. wetherell: first, i want to thank chairman grassley and ranking member of einstein for scheduling today's hearing. senator candy, thank -- senator kennedy, thank you. senatorlike to thank rubio and nelson as well as lieutenant governor and members of the bipartisan florida judicial nominating commission. i want to thank president trump for nominating me. i am deeply humbled and honored in the confidence that he has shown with me. it is the highlight of my professional career. i would like to thank the white house attorneys and the justice department attorneys for their guidance through this process. i would not here -- not be here today without my family. with me is my wife.

we have been married for 23 years. she is my best friend, biggest supporter and a wonderful mother to our two children. she is the ultimate team player. yesterday was her birthday, and she spent it helping me for this hearing, so i owe her a nice dinner. my children are unable to be here today, they are at school. daughter is a sophomore at florida state university. she originally planned to major in elementary education, but recently made the mock trial team and is thinking about going to law school. our son is a sophomore at child's high school -- chiles high school. he is an avid hunter and fisherman and all around rate kid. i am proud of both of them. i want to recognize my parents

who are both watching online. 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 compassion for others. my dad is a retired university president. he is the strongest person i know and instilled in me values of the importance of public service. i would not be here today without the strong foundation my me.nts gave i also wants to recognize my mother-in-law and the entire watson family. they welcomed me into their family and have been supportive over the years. i only wish my father-in-law was alive to see this day. he was a longtime state trial josh and a mentor -- judge and a mentor on and off the bench. finally, i want to a knowledge to many exceptional lawyers and judges i have worked with over

the course of the year. i have been fortunate to work with many smart and talented people. i cannot thank them all individually, i want to thank them collectively for making me a better lawyer, judge, and point -- and person. thank you for the part -- thank you for the opportunity to be here. sen. kennedy: senator hatch? i support each and every one of you and i am proud of you. as a former trial lawyer, i appreciate it -- appreciate these particular positions that you are nominated for. i intend to support each and every one of you. thank you, and thank you mr. trail men -- chairman. i just want you to know that i what eachay and herar

whatay and he -- hear you have to say. you for the thank willingness you have to serve our country. in these days, often the that,res and difficulties with being willing to step up our intense. it is important that people like you are willing to step up and help serve and make this american nation strong. sureur cases, help to make that our bedrock system of being a nation of law and order is protected and strengthened. i thank you all for that. i do not have any questions. no problems there. sen. sasse: before i a couple

of questions to you. i would like to make a comment on allison jones rushing's nomination, and i know age and importance of life experience do matter. i would like to say that relevant appellate experience is important. young partners in firms, this is a super lawyer. grasp -- liken chairman grassley, i am not an attorney. i have gotten to know many of the nominees, and one of the things i realize is that senior partners spend a lot of time on management and appellate to spend one time other matters. we have some of the most impressive people that ended up widely respected were also -- were often folks who came from and appellate background. i know senators were and tell us

and the white house -- senators bur and tillus and the white have taken this seriously. i think they have made an inspired choice with mrs. rushing. there is a of you, lot going on in our country right now in terms of an erosion in the understanding of the first amendment. one of the things that troubles me the most as a former college president is the new category where we talk about speech we do not like as a form of violence. i would love if we could start their with you at the end and come down the line. -- johnould give kennedy has a great device and he says pretend i am a high school sophomore and i have not been paying good attention. what is the first amendment

about? as a parent of a high school sophomore, i feel uniquely qualified to answer that. sen. sasse: please do not over share. mr. barber: it is about freedom of speech, and the part that you are getting at is freedom of religion, obviously. i was taught that the first amendment was about the marketplace of ideas. it was a good thing if people had disagreements to talk about. we would hash them out and figure out what the truth was. to me the first amendment is a marketplace of ideas. of religion, obviously it is to each person has the right to pursue whatever religious calling they happen to feel if it is methodist, catholic or what have you. those are my brief dots as i was explain them to my son who is here. sen. sasse: ben, you got off

easy. the first amendment , thelishes many freedoms right to free speech and to discuss, freedom to express yourself, freedom to assemble. things that we all consistently think about, but maybe not overtly. when we ever be able to give up one of those freedoms? and what we still be a nation? it is something we think about and something we need to talk to our children about. for me, there are fundamental freedoms that should be protected. to your question about the freedom of speech, we have to be free to express ourselves, and that means 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 views. that is what makes our country great. i hope that we can do so civilly. sen. sasse: it is a republic if you can keep it. my answer is the first amendment is a limit on the power of government. a limitation on the government on what you can say. i agree that the point is to allow us to say what we think is necessary, the same reason we have the right to assemble. we should not be protected against opposing viewpoints, even if we find them hurtful or strongly disagree. persons must we able to say that, because is that -- because that is how american discourse has led to this nation. sen. sasse: the idea is that god gives us rights i nation are -- by nature.

government is limited so that the dignity of people can be played out in a marketplace of ideas and persuasion. mr. smith: i agree. i would like to add that the freedom of expression is to feel and see what you believe, but there is always limitation. you cannot just yell "fire" in a theater. and dould be able to say what you need to express yourself without worrying about someone being offended. i always draw the line of how speech impacts someone physically. you cannot even criticize any elected leaders in certain countries. america is the bedrock. you cannot get punished, and it will make this country different. sen. sasse: i will last one clarifying question. you clearly cannot use your

speech to incite someone else to aolence and scream "fire" in crowded moving house. if they differ about heaven or hell, it is not the government's responsibility to sort that out. mr. smith: correct. mr. wetherell: i am 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'm going to go back stonesto the sticks and can break my bones but wrote -- but words can never hurt me. the first amendment is not to protect -- is to protect the things you want and do not want to hear. we should not be afraid of or fear words that may hurt our

wordsgs, because the more in the public discourse, the more speech in the marketplace is a good thing and advances us as a society. sen. sasse: the american idea is that the response to speech you do not like is more speech, not less speech. thank you all very much, congratulations on your nominations. for -- sen. kennedy: for the record. senators rubio, shelby and jones have submitted statements of introduction and support. without objection they will be admitted into the record. universaltalk about or nature -- or nationwide injunctions. do you all know what i am talking about? where a single federal district prosecution ofn

a particular statute. i do not have -- i do not know how many admiral district judge as we have, let us say 600. one federal district court judge ,an enjoin a statute nationwide shut it down, even if the other 599 district court judges disagree. you are not limited to your own jurisdiction. everybody following me? judge whetherith etherell, what is the legal base for that? mr. wetherell: i understand the concern. i want to be careful because the issue about the legal authority

throughsue percolating the courts. i do not think it would be up propria for me -- sen. kennedy: i am not telling you what the law will be. telling i'm at -- i'm asking you to tell me the legal basis. mr. wetherell: the question of if there is legal authority is the question that justice thomas spoke about in the travel ban cases. i think that issue is before us. i think what you are getting at, the issues surrounding us and some of the things that the courts will have to look at, is that beyond their authority to provide relief to parties not before the court. article three standing issue, if i understand the concern. beyonde court gets

adjudicating the case, the concern can be that the court is acting more like congress, which is acting and affecting people not before it. those are the issues. sen. kennedy: can you tell me what the legal basis is? i would have to look at the brief. i preside over 2000 cases, and to give an opinion on it, and i do not have the brief. mr. mays, -- maze, what is the legal basis? mr. maze: only if the party was in your district, and you would have the jurisdiction. about inhare concerns joining parties outside of your district who are not before you. i am not sure i should go further, because at that point we would be stepping into an

open political controversy. i would go what mr. maze said, except that i like -- liken it to not being decided by other district courts. if we were to render a decision on our court that is a first impact -- impression that the other district court's have not ruled upon, then other trial ourt's would be bound by decision unless the supreme court says otherwise. mr. barber: i will confess, i do not know a lot about that. in lawseveral courses school in federal courts and never learned about that. it was never taught. it seems rather new. congress controls the jurisdiction of the federal courts. i remember that.

that is much i can answer. i am not going to ask any of you what the law ought to be. i do not have any intention to ask you do you agree with a certain case or you do not. i am 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, contend that they have figured out a way in college admissions to discriminate in the right way. that there is a moral way to discriminate.

i understand that that is being litigated. i am not going to ask you about that. what your to tell me understanding of law is, and i will start with judge barber, on ethnicity as a factor in admissions to a university today. just the state of the law as you understand it. mr. barber: back to law school again. this is something that i work with in my job. it was the case where they analyzed it in terms of diverse affirmativen educational value that colleges could take into account. there was a later case from the university of michigan where that was fleshed out a little more. i have not read that case. that is my knowledge on the subject. thatberger: i believe

, and i'm having to drawback because it is not something i have thought about. i believe that they can use at the city as a -- at the city as ty as ar -- ethnici factor in students. but i am not sure to be honest. mr. maze: let us start with the 14th amendment which starts with protection of all persons of any race. i know that senator kennedy, you are referencing the harvard case. i know we are not talking about it specifically. that would be different because harvard is a private institution. if it were a government school, then we would look at strict scrutiny. i'm not going to comment on what i think should be done in the harvard case. we would have to look at what precedent is on point as judge

barber said. the court has interpreted the 14th amendment in certain ways. we would apply those cases to facts of whatever case we would get. mr. smith: like my colleagues would say, i would look into compelling interests. hotwood.sus i would search on those issues. mr. wetherell: i think i will have to claim slight ignorance as to -- is -- as what barbara did. that is not an issue that came before me. my general recollection is that it is a factor that can be considered in larger factors in the goal of promoting diversity. the on that, i would have to look at the arguments and do more research when the issue came before me. sen. kennedy: fair enough.

let me ask you this, the role of legislature -- legislative history. it is accepted -- it is an accepted precedent that all accepted, the first thing you look at is a statute and ask if it is ambiguous. if it is not ambiguous, you do not go further. right? we agree on that? can knowambiguous, you further. you can look at other things. if you have a statute in front of you that is ambiguous that you are asked to construe, to what extent, if any, and i will start down here. do you think the court should

rely on legislative history? mr. wetherell: i would answer that in two different ways. it depends on what you mean by legislative history. if you mean floor statements, committee reports, and the like, i think those would be much further down in the toolbox. sen. kennedy: as opposed to what? mr. wetherell: as opposed to looking at the progression of the 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 meant to make some sort of change. at smith: i would look another statute on the same subject area, because anything leading up to the enactment is not law. if i do not find anything on the

same subject i would give it its plain ordinary meeting and interpretation. mr. maze: i think of it the that if the answer can be gotten from the text, that is the case. if the judge has interpreted that text, we are bound by those interpretations. if you can find the answer in the text and the president, i would not look at the legislative history. it would be a last case scenario. i think legislative history in the form of floor and staff analysis are a great tool for a high school history project, but not for judging. think that what you would say on the floor in a speech for what a staffer would put in their report reflects the reason why senator hatch might vote for the law or senator

sasse. you cannot derive legislative intent from that kind of history. , if you consider legislative history, a prior version of similar statute to see if something was the leader, that might give a hint -- if something was deleted, that make their of ambiguity but beyond president of 11 circuit court of appeals, u.s. supreme court, that is what i would rely on. >> barber. >> i would add nuance of my own. i could see a situation where legislative history was very clear. sometimes you agree, almost all of you on things. perhaps in that situation if the statute were ambiguous, that would be something, i would

be willing to look at that. otherwise i would be suspicious for reasons mentioned. how long haver, you been a lawyer? >> 25 years. >> how many years did you practice? >> 13. how long have you been a lawyer, judge berger? >> since 1992. >> 25? >> 26. >> how long have you been a lawyer, mr. maze. >> 28. >> how about you? >> 18 years. >> how about you? >> i am trying to do the math. 23. >> senator, can i correct the record? >> sure. >> those of us who are lawyers, are not good at math. i just realized i have been a

lawyer 26 years, i am sorry. [laughter]>> congratulations to each of you on your nomination. bryce, do you have anything? nothing? >> come up to the microphone. >> anything you want to say, bryce? tell us what you think, man. could get anything you want for lunch, you have been submitted. learnis safe for us to --ut it and so >> that is way cool. [laughter] >> i speak for my daddy. [laughter]> let's see what else my team is telling me i have to do. thank you for your testimony.

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

>> coming up, the center for digital democracy posts a series of discussions to mark the 20th anniversary of the children's online privacy protection act.

that begins at 1:00 on c-span. we have several live debates this evening on c-span. republican massachusetts governor charlie baker running for reelection against former massachusetts secretary for administration and finance, j gonzalez. three term democratic senator thecarper for delaware senate seat, 8 p.m. eastern. in the eighth house district the debate in the election to succeed retiring congressman, all of that live on c-span. last night, republican senator ted cruz faced beto o'rourke in san antonio. tonight, three weeks until the election.

>> different visions for the