Katie Britt Questions Top Trump Judge Nominee About Originalism And Protecting Religious Liberty

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At Wednesday's Senate Judiciary Committee hearing, Sen. Katie Britt (R-AL) questioned Eric Chunyee Tung, nominee to be United States Circuit Judge for the Ninth Circuit.

Transcript

00:00I'd like to give you an opportunity to talk about your wife again.

00:03I heard what you said about her. I know what it means to be in a partnership,

00:07and I would hope that if my husband was asked, he'd have a long list of things that I am better at than him.

00:14But will you tell me a little bit about your wife and her accomplishments, and I'd love to hear it.

00:20My wife is the most beautiful woman in the world.

00:23Love it.

00:24She is one of the most professionally accomplished women that I have ever met.

00:27As I mentioned to Senator Padilla, she worked on the Hill.

00:32She worked in the White House for President Trump during his first term.

00:35Which for all of you know, the staff around here is where things really get done, so thank you.

00:41And she worked for a Fortune One company in the executive speech writing.

00:46Sounds like an accomplished woman, both just throughout her life.

00:52Thank you, Senator. I could not be prouder of my wife.

00:55Well, I am certainly proud to hear you talk about her as well. Thank you.

01:00I want to talk to both of you about something you've previously expressed,

01:05and that is originalist and textualist interpretation.

01:09I know that this is an ongoing debate.

01:12Is it the, you know, same thing? Is it different? Is it distinct? Are they related?

01:17How does this work?

01:19I'd love to get your thoughts on that methodology and your views on kind of how those terms should be defined,

01:28and then what role they will play for you on how you approach things before you on the bench.

01:34So we'll let you go ahead first, and then we'll go to Mr. Tung.

01:37I think that they're best understood, originalism and textualism, as two sides of the same coin.

01:46As I understand it, it requires a jurist to look into the original public meaning of a text,

01:56whether it be a constitutional provision or a statute.

01:59And so you would seek to apply a law in the manner that a reasonable person would have understood it

02:07at the time that it was adopted when you view it in full context.

02:11And so that is the approach that I would seek to bring to the bench should I be confirmed

02:17in order to keep my decisions firmly grounded in the law.

02:24So real quick, obviously Senator Lee asked Mr. Tung about this,

02:28but Article I, Section 7 in Legislative History.

02:31Give me your thoughts on that.

02:34There are, of course, Senator Lee's question suggests there are different types of legislative history.

02:40Some drafting history is much more objective and useful to a court.

02:45But the question, as I recall, was directed to subjective statements of individual legislators.

02:54He specifically mentioned floor speeches, et cetera.

02:57And that, to me, is not particularly persuasive because, as previously alluded to,

03:03it did not go through the bicameralism and presentment requirements.

03:07And it goes more to a subjective intent rather than an objective meaning.

03:10So, Mr. Tung, do you support originalist, textualist interpretation?

03:16And if so, if you can give me that quick definition and then how you arrived at that conclusion,

03:22that that would be the most appropriate methodology if, in fact, you believe that.

03:25Thank you, Senator.

03:26So I do subscribe, Senator, to originalism and textualism.

03:29As Mr. Dunlap so articulately stated, originalism is a method of interpretation of the Constitution

03:35that looks to the original public meaning of the specific provision at issue.

03:41Textualism addresses the method of interpretation with respect to statutes.

03:45But both methods are aimed at the same thing.

03:47What did the words mean at the time that they were enacted or ratified?

03:51And I subscribe to that view because veering away from that view turns judges into policymakers.

03:59No longer are they grounded and anchored in the text,

04:01but rather they would be indulging in their own personal policy preferences.

04:05And I don't think that's the role of the judge.

04:06Which you've said time and time again today,

04:08your personal preferences aren't what you're going to take to the bench.

04:11So, thank you.

04:12I strongly believe the federal judiciary has a vital role in protecting religious liberty and freedom.

04:18I have been heartened by the Supreme Court's religious liberty jurisprudence in recent years

04:24and would like your thoughts regarding the role of the judiciary

04:27in defending religious freedoms for all Americans.

04:31Senator, the Supreme Court plays a very important role in defending religious liberties.

04:40The First Amendment of our Constitution says it right there.

04:44Congress shall make no law respecting an establishment of religion

04:46or prohibiting the free exercise thereof.

04:49And the Supreme Court has faithfully interpreted that provision recently.

04:53And my remaining time.

04:55I would agree.

04:57The courts have the responsibility to apply each of the amendments to the Bill of Rights.

05:05The First Amendments and the Free Exercise of Religion and the Establishment Clause

05:08have been observed to be first freedoms.

05:12Those are binding upon the court and should be equally applied for all Americans.

05:18Well, thank you both for your willingness to serve.

05:20You're incredibly accomplished and look forward to getting you on the bench.

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