At today's Senate Judiciary Committee hearing, Sen. Sheldon Whitehouse (D-RI) questioned Jennifer Mascott, nominee to be United States Circuit Judge for the Third Circuit.
00:00Is it fair to say that you have fairly little actual litigation experience outside of serving
00:05as amicus counsel? Well, Senator, as I believe the Senator Cheshire
00:12questionnaire points out, and also actually that was quite extensive experience with dozens of
00:20amicus briefs, sometimes for senators here. I also mentioned the background. Amicus briefs is
00:23different than actually trying cases. Have you ever tried a case, for instance, to been the lead
00:27counsel in a case that was tried to verdict? So, Senator, I believe is the letter that we submitted yesterday
00:33indicates it was talking about the District of Massachusetts matter that I argued. It was the
00:39summary judgment and full trial collapsed into one hearing and argued that's a verdict on the Title IX
00:46Department of Education, and then also had the honor to argue in courts of appeals during my time at the
00:51Department of Justice, and have served in all three branches of government, of course. And with respect
00:57to your connections to Delaware, have you ever voted in Delaware? Senators, I was discussing
01:03with Senator Coons. We, of course, have had a long time home. Simple question. I'd prefer if I didn't get
01:11filibustered, and I actually got an answer to a simple question. Have you ever voted in Delaware? Well,
01:15Senator, as a public servant and professor here, no. I've been voting in Maryland. Registered to vote in Delaware.
01:21Well, Senator, as a public servant and academic here, I'm registered to vote here. If this body-
01:27Do you have a driver's license or any other record of licensing from the state of Delaware?
01:32Senator, I do not yet have a Delaware driver's license. I do have a car that is insured in Delaware-
01:40Because you have a summer house there. We've had a long time home, and yes.
01:45And you were not admitted until May into the Third Circuit? Senator, I became admitted in May in the Third Circuit, yes.
01:54And you have no blue slip from either of the two Democrat senators from Delaware senators? Senator, I am really honored to be the
02:04President's nominee and- Blue slip, correct? Well, I don't- I didn't believe there were blue slips at the circuit court level at this point for any circuit court nominees.
02:15That was undone by our friends on the other side of the aisle, and now that is the new tradition, and I'm clarifying that you have none, correct, right? Senator, I don't, because it's not been used for circuit court nominees.
02:29The nomination to the Department of Education as general counsel was withdrawn when? Today?
02:35Senator, I believe it was referenced that it was- it was- it was yesterday.
02:40Yesterday, okay.
02:42You were on the board of the New Civil Liberties Alliance, I believe at the time when Jeffrey Clark was hired. Do you recall that hiring?
02:50Senator, I don't- I don't know what you mean by recall the hiring.
02:56I was on the board of the New Civil Liberties Alliance and just- and up through about July of 2021, and as I recall, what happened around that time is that- and I had a conversation with the director about it- I stopped being a board member.
03:14They were bringing litigation that involved an opinion that I had written at the Office of Legal Counsel in the Executive Branch, and I strongly disagreed with their stance in that litigation.
03:25It was actually bringing the opposite view. I also expressed that it was- I'm thinking about the hiring of Jeffrey Clark.
03:31But that's my- I guess my point is, as a member of an advisory board, first of all, of the group, I wouldn't have had anything to do with it, and your issue was nothing to do with it.
03:38So you weren't aware of it? You weren't aware of it at the time?
03:41I read newspaper accounts of his hiring on the New Civil Liberties Alliance. As a board member advisory-
03:45Nobody contacted you to ask that you support his hiring? Oh, no, no.
03:49You weren't consulted by him? You didn't interview him?
03:52No, no. It was like a 24-member advisory board. A couple of dozen people know.
03:56Got it. You constantly use the pejorative term administrative state. You have called for the repeal or the overturning of Humphrey's executor. You have called to undo Chevron deference. You have supported the so-called
04:25major questions doctrine. All of these signals are extremely important to the fossil fuel industry, which has a decades-long battle against agencies that regulate its pollution, and which is the dominant donor interest to the Republican Party,
04:51in which heavily funded the half-billion-dollar enterprise to capture the Supreme Court. How on earth can you expect anybody representing an interest opposed to the fossil fuel industry to get a fair hearing from you?
05:10Senator, if I were to have the honor to be confirmed at the Third Circuit, as mentioned, I would be holding the role of a judge, which is to resolve fully and impartially cases and controversies, not rule on policy matters.
05:24And also, if one looks at a record, even of the amicus briefs in the clinics, these are cases that are being brought on legal principles and at times for parties that are holding different policy views.
05:40And I would continue to have the same tradition of impartiality for the rule of law if I had the honor of being confirmed.
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