Durbin Questions Judicial Nominees In Today's Senate Judiciary Committee Hearing

Durbin Questions Judicial Nominees In Today's Senate Judiciary Committee Hearing

WASHINGTON - U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, today questioned judicial nominees on two panels, beginning with Jennifer Mascott, nominated to the U.S. Court of Appeals for the Third Circuit, during today's Senate Judiciary Committee hearing. During the second panel, Durbin questioned Edmund LaCour, Jr., nominated to the U.S. District Court for the Northern District of Alabama; Justice William Lewis, nominated to the U.S. District Court for the Middle District of Alabama; and Justice James Maxwell II, nominated to the U.S. District Court for the Northern District of Mississippi.

Durbin first questioned Ms. Mascott about her opposition to implementing a code of ethics for the U.S. Supreme Court. Ms. Mascott had previously served as a witness for a June 2023 Senate Judiciary Committee hearing entitled "Ensuring an Impartial Judiciary: Supreme Court Ethics, Recusal, and Transparency Act of 2023." During the hearing, Ms. Mascott asserted that the Supreme Court did not need an enforceable code to align the highest court in the country with the same ethical boundaries as all other courts.

"You clerked for Justice Thomas on the Supreme Court. You also testified before this Committee against the Supreme Court ethics reform legislation at a hearing in June of 2023. That hearing followed investigative reporting that revealed Justice Clarence Thomas received and failed to disclose gifts worth millions of dollars, with some estimates placing the total value at over $4 million. This was confirmed by exhaustive Committee investigation and subpoenas that my staff and I conducted when I was Chairman of the Committee," Durbin said.

Durbin then asked Ms. Mascott, "If you are confirmed to serve on the Third Circuit, will you commit to abiding by all the rules and regulations governing judicial ethics, including federal statutes and the Code of Conduct for U.S. judges?"

Ms. Mascott agreed that she would abide by all ethics requirements.

"You came before this Committee to testify on an effort we're making to try to establish a code of ethics for the highest court in the land. We know that there is a code of ethics that applies to federal judges other than the Supreme Court and how it is enforced. We are trying to write something that would apply to Supreme Court Justice Thomas or any others who have millions of dollars' worth of undisclosed gifts. Since you came and testified against our legislation, I'll ask you a very general question. How do you believe the Supreme Court should be governed when it comes to ethics?" Durbin asked.

Ms. Mascott asserted that as the Supreme Court is the highest court in the land, lower courts do not have the authority to evaluate the recusal decisions or potential ethical lapses of Supreme Court justices.

"When it comes to constitutional compliance, do you believe that receiving millions of dollars in gifts and not disclosing them is in the best interest of our Constitution?" Durbin followed up.

Ms. Mascott responded that Chief Justice Roberts had made public statements about the devotion of Supreme Court justices to complying with disclosure requirements. However, as Durbin made clear in his earlier questions, Justice Thomas had failed to disclose more than $4 million in gifts in his financial disclosures.

"I think the reputation of the Supreme Court is important enough for us to be willing to consider new ideas of enforcement. Current rules do not work. There are too many gifts that go undisclosed to the justices serving on the highest court of the land. The Supreme Court of the United States, the highest court in the land, should not have the lowest standard of ethics. And when you testified…it left a lasting impression with me. I respect very much your education and what you have achieved in your life. It's remarkable. But this is one question that still remains unanswered as far as I'm concerned," Durbin concluded his questioning of Ms. Mascott.

Video of Durbin's questioning of Ms. Mascott in Committee is available here.

Audio of Durbin's questioning of Ms. Mascott in Committee is available here.

Footage of Durbin's questioning of Ms. Mascott in Committee is available here.

Durbin then questioned Mr. LaCour about his involvement in the redrawing of Alabama's congressional districts in 2023 while serving as the state's Solicitor General.

"You played a significant role in working with the state legislature to create maps that continue to disregard federal court orders and suppress the influence of Black voters. Would you like to comment on that?" Durbin asked Mr. LaCour.

Mr. LaCour claimed that no court orders were defied, noting that a preliminary injunction was entered against the initial plan drawn by the state legislature and the Supreme Court issued a stay.

"State lawmakers said you helped draw the new map as Solicitor General in a room across from state legislators. You pushed for the inclusion of so-called 'legislative findings' and helped write talking points for them. Are you aware of that assertion?" Durbin asked.

Mr. LaCour confirmed that he was aware of those assertions.

"In the case of Allen v. Milligan that went before the U.S. Supreme Court in 2022, you argued that Section 2 of the Voting Rights Act required evidence of discriminatory intent to prove a violation. Do you understand now that that is different than what the law says?" Durbin continued his questioning of Mr. LaCour.

Mr. LaCour replied that his team had argued that if a plan that is disputed under Section 2 of the Voting Rights Act looks similar to a map produced from a race-neutral process, then the map is not discriminating against anyone based on race. However, the Supreme Court rejected this argument with a 5-4 ruling.

Durbin then questioned Justice Lewis about his involvement in political organizations while serving on the state bench despite the Alabama Judicial Canons stating that "it is undesirable that a judge or a candidate for election to judicial office endeavor not to be involved in the internal workings of political organizations."

"You have served as a member of the [Republican] Executive Committee of the Elmore County, a political organization, since 2006, including as Chairman since 2018; and the state party's [Alabama Republicans'] Executive Committee since 2008. Why did you not follow the recommendation of the Alabama Judicial Canons?" Durbin asked Justice Lewis.

Justice Lewis responded that this is a recommendation, not a restriction mandated by the Alabama Judicial Cannon.

Durbin concluded his questions by asking Justice Maxwell about upholding the ruling in Nash v. State, in which a defendant was sentenced to 12 years in prison for possessing a cell phone while in jail on a misdemeanor offense.

"Justice Maxwell, in Nash v. State, you upheld a 12-year sentence for a defendant… for possessing a cell phone while in jail. You wrote in that decision, 'While obviously harsh, it is not grossly disproportionate.' Twelve years in prison for a misdemeanor - possession of a cell phone. Please explain," Durbin said.

"The defendant had a wife and three children that depended on him, and [he] had been staying out of trouble with the law for nearly a decade since his prior conviction. The crime was victimless, and the facts suggested that his crime crime was accidental and likely caused by a failure in booking procedures, and yet you thought 12 years… was warranted?" Durbin continued.

Justice Maxwell replied that his role on the Mississippi Supreme Court was to decide whether the sentence was lawful within the parameters set by the legislature. Justice Maxwell argued that he followed the letter of the law.

Video of Durbin's questioning of the second panel in Committee is available here.

Audio of Durbin's questioning of the second panel in Committee is available here.

Footage of Durbin's questioning of the second panel in Committee is available here.

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