At Wednesday's Senate Judiciary Committee hearing, Sen. Alex Padilla (D-CA) questioned Joshua Divine, nominee to be United States District Judge for the Eastern District of Missouri and for the Western District of Missouri, about his beliefs and experience.
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00:00Thank you, Mr. Chair, and appreciate your patience in allowing me to come back to ask questions.
00:07This is the first of these for the calendar year, and very important, so I don't want to miss the opportunity to raise some questions,
00:15particularly for Mr. Devine. I'll start there.
00:19Mr. Devine, in 2011, you wrote a piece for your college newspaper arguing against marriage equality.
00:26While you acknowledge that, quote, the gay community cannot be blamed, end quote, for the, quote, weakening, end quote, of marriage,
00:36you were worried that marriage equality would, quote, further this trend of traumatic digressions, end quote, against marriage.
00:46Now, it's hard to see how this could be interpreted as anything other than you suggesting that LGBT people enjoying the same rights as straight people
00:59is somehow harming your conception of the institution of marriage.
01:04But like I said, you don't just blame marriage equality.
01:08You also blame, quote, easy divorce, cohabitation, increased single parenting rates, and recreational sex, end quote.
01:19These are your words.
01:20So, Mr. Devine, noting for the record that June is Pride Month and that we are sitting here in Washington, D.C.,
01:26which is hosting World Pride this year, I have to ask, do you believe in marriage equality?
01:33Senator, thank you for that question.
01:36As you mentioned, this was a college writing, 2011.
01:40At the time, I expressed the same view that President Obama expressed, that Joe Biden expressed, that Hillary Clinton expressed.
01:47Under Canon 5 of the Judicial Ethics, as I'm sure you're aware and as hundreds of nominees before me have expressed,
01:54I cannot tell you what my personal views are today or my political views are today.
01:59What I can tell you is that I'm no longer in college.
02:02That was, you know, almost 15 years ago.
02:04I can tell you that as a general matter, I've grown up, I've had a lot more experiences,
02:09a lot of my policy and political and even some of my religious views have changed in that time.
02:15But I can't tell you specifically any specific policy or political issue.
02:19So then let's jump to today.
02:20And can you answer this question?
02:21Can you tell me the legal status of marriage equality according to the Supreme Court?
02:26Yes, 10 years ago this month, the Obergefell decision was decided.
02:30I understand also maybe three years ago, this Congress passed some legislation.
02:37And obviously, Obergefell is a binding decision of the Supreme Court.
02:41As a lower court judge, I would be bound by that decision,
02:43just like every other decision of the Supreme Court and also the Eighth Circuit.
02:47So if you're fortunate enough to be confirmed, you would uphold that Supreme Court precedent?
02:52That's correct.
02:53Thank you for that.
02:54Now, being selected to serve as one of our nation's federal judges is one of the greatest honors that we can bestow on any person.
03:04It's also one of the greatest responsibilities.
03:07So, Mr. Devine, I'd like to ask, how many years of litigation experience do you have?
03:12Did you say how many years of litigation?
03:14Correct.
03:15About a decade.
03:16About a decade.
03:17It can be a little bit more precise.
03:18I know you know your resume pretty good.
03:19So, it depends if you consider, you know, I was chief counsel in the Senate.
03:23I was deputy counsel in the Senate.
03:25We also did some amicus briefs during that time, which would be considered litigation.
03:30I obviously wasn't doing litigation all the time during that period.
03:34But if you include that period of time, I think it's about nine years.
03:37Does that include clerkship time?
03:40Yes.
03:41Okay.
03:42So, without clerkship time, it would be less.
03:45That's correct.
03:45It would be seven years.
03:46And I think it's important for this committee to consider that because while President Trump has decided to throw out the American Bar Association's nonpartisan rating system,
03:57I know that the American Bar Association does have a threshold for litigation experience for any nominee to receive a qualified rating.
04:12And you seem to fall short of that.
04:15So, again, something for this committee to consider, I would hope.
04:19Lastly, we're about five months into President Trump's second term, and we've already seen numerous attempts by the president and even some of my colleagues in Congress to attack and undermine the judicial branch,
04:32all for the crime of issuing rulings, pausing, or striking down the president's illegal and unconstitutional actions.
04:41I was concerned to hear earlier in the first panel of this hearing Ms. Hernándorfer's willingness to, unwillingness, I should say, to tell Senator Kennedy that the executive branch must follow court orders.
04:57So, again, Mr. Devine, I ask you, if you're lucky enough to be confirmed and you author an opinion for the Sixth Circuit in which the executive branch or one of its officers is a party,
05:08and you decide against the executive branch or one of its officers, would you believe they are bound by that decision?
05:16So, Senator, a point of clarification, I haven't been nominated to the Sixth Circuit.
05:20So, but taking your question with respect to the district courts in Missouri, I mentioned to a ranking member, Durbin, earlier that there is a well-established doctrine on this.
05:32The answer is almost always yes, with some exceptions for if there's lack of jurisdiction, if there's impossibility, things of that nature.
05:39So, my apology for the confusion.
05:41Ms. Hernándorfer is the one that was nominated for the Sixth Circuit, not you.
05:45But just expand for a moment, I know my time is up, on what those exceptions would be.
05:52I understand there's some exceptions, but some people in this day and age, the political climate that we're living in,
06:00seem to be really broadening the categories of, or what qualifies for an exception, very different than what we've seen historically.
06:09Yes, Senator, one of those exceptions, the first of the three that I just mentioned to you is if a court lacks jurisdiction,
06:15the Supreme Court has been very clear that an order issued without jurisdiction is void ab initio, it's as if it never happens.
06:22And so, for there to be a circumstance where, you know, a judge or a litigant was accusing somebody of violating an order,
06:28and the district court was later determined to lack jurisdiction at the outset,
06:32then there would have been no order to violate in the first place.
06:35Okay.
06:36Thank you, Mr. Chair.
06:37My time is up.
06:37We'll be submitting additional questions for the record.
06:39Absolutely, and on that note, questions for the record may be submitted.