00:00Senator. Thank you.
00:19Congratulations. I know that you all are pleased to be here and I congratulate you
00:28on your nominations and do indeed look forward to your confirmations. Mr. Dunlap, I want to come to you.
00:38I know that you have been a litigator and an appellate litigator. So talk to me about
00:48the experience you bring in that capacity and now that you're going to be on the court.
00:58And is there a specific case that you think the briefing, the court,
01:04the entire process really informs the way you would approach the bench?
01:11I think one similarity that would transfer from being an appellate advocate
01:18to being a judge should I be confirmed is the necessity of carefully analyzing the law
01:27and being able to distill it in a thoughtful and understandable way. I think that a judge has the
01:36obligation to write in a way that meets, to fully explains the judge's reasoning to the parties
01:44that appeared before the court and would provide useful guidance to future parties that may be
01:51affected by similar cases. So I think that you have to have that same skill set when you're an
01:58appellate litigator as you would if you were on the bench. Okay. Mr. Tung, let's talk about,
02:08I don't think you've talked about this yet, a town hall op-ed that you did in 2019. And it was
02:17responding to what you called, and I'm using your term, a misguided hit piece by a law professor who
02:25criticized Justice Scalia and Gorsuch and asserted that originalist judges make stuff up too. So you
02:35took issue with that and you made the case for originalism and the framework and that approach for
02:45constitutional interpretation. So elaborate on the points that you made in that town hall op-ed and
02:55why you think, and you've talked a little bit about this today, why you think originalism
03:00is the correct approach for constitutional interpretation. Thank you, Senator. Originalism anchors
03:09judges who are not elected and who are not politically accountable, anchors them to the text of the
03:17constitution. And so it forces them to show restraint and to not exercise their will, but to exercise
03:26judgment in the words of Hamilton and Federalist number 78. In that op-ed you had mentioned, Senator,
03:33the case that was addressed that was used as an example of originalists making stuff up was the Kylo
03:42versus United States case, which addressed the Fourth Amendment and what constitutes a search under the
03:48Fourth Amendment. Justice Scalia wrote the opinion holding that using a heat thermal imager of a home
03:56that would allow the police to surveil the interior of the home, that that constituted a search. Despite the
04:03fact that thermal imagers weren't in existence at the time of the Fourth Amendment's ratification, the Fourth
04:09Amendment would still have application. The meaning of the search doesn't change over time. And so in that
04:16instance, I don't believe that Justice Scalia was making stuff up as the author of the article I was
04:22responding to was suggesting. Okay. And you also said in that op-ed, when judges stray from text and original meaning,
04:32we end up with topsy-turvy results. So expand on that. Yes, Senator. So
04:39when one strays from the text and veers into other sorts of doctrines under the Fourth Amendment,
04:46for example, the cat's doctrine, reasonable expectation of privacy, when that becomes the
04:54controlling test, what happens is searches that were searches under the original meaning of the Fourth
04:59Amendment no longer become searches. So when helicopters search other people's property, that
05:08constitutes a search does not constitute a search anymore. Because under the cat's view, there's
05:14no reasonable expectation of privacy. It's no longer moored to the text of the Constitution.
05:19Thank you. Thank you, Mr. Chairman. Thank you, Mr. Chairman. And to all the nominees today, it's
05:26important to do this. Obviously,
05:31I don't think we're also going to have to do this.
05:34We're going to have to do this.
05:37Okay.
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