Josh Hawley Takes No Prisoners Grilling Key Judicial Nominee: 'Why Are You Fighting Me On This?!'

holy thank you Mr chairman congratulations to all of the nominees judge alicon I think last time you and I visited it was before the homeland security committee and I asked you a number of questions there you including some for the record you uh answered those which I appreciated one question that I ask you and I ask every nominee actually on that committee on this one is whether or not the nominee has ever ever litigated against a religious liberty claim usually the answer that's no in your case you answered yes and you listed one two three four five different cases over a period of years actually in which you have litigated against individuals or churches religious liberty claims so let's just talk about a few of those if we could let's start with some of your work during covid Casey list here Capitol Hill Baptist Church versus Bowser do you remember that case yes Senator you remember working on that case yes Senator this was a case involving the district's lockdown policies that shut down churches in the district is that correct it concerned litigation over provision of the lockdown policies the policies restricted all types of activity in the district all types of activity in the district yes Senator did it restrict Mass protests in the district well it restricted activities that one normally expected including work going to stores it also did include these Provisions that were challenged concerning churches so it Exempted unusual or unlikely activities that's in the statute that's in the ordinance when the mayor was enacting these orders at the outset of the pandemic I think she was trying to be as comprehensive as she could and the order did restrict a number of daily activities of districts but an Exempted Mass protest I don't believe it said anything one way or can you point me to the text for an Exempted Mass protest I don't believe it said anything one way or another of course it didn't because it didn't except Mass protests right you know that I think it was silent on the issue because I don't believe it was contemplated by the mayor's office ah so you think that mass protests should be in a different category than religious observances is that your position I think if there were protests on the book then the mayor might have thought about that when she was enacting the covid-19 restrictions but I think she was trying to protect public health so you think it's fine to say to religious people that they are prohibited from Gathering outside wearing a mask socially distance they can't do it but if you want to come and protest defund the police if you want to support that that's fine you can gather in Mass person to person close up thousands of people that's okay that discrimination's okay that's your position Senator that is not my position I do it was your position it's what you argued I did not write these orders um what I said defended it in court and you just you just articulated to me what I take to be your position what I was doing in a Capitol Hill Baptist Church was defending the mayor my client against a constitutional challenge to one aspect of the covid-19 restrictions we understood that strict scrutiny applies how did that case go for you we lost that case why it was found that the restrictions did not meet the standard of strict scrutiny meaning they were unconstitutional meaning that they did not survive strict scrutiny and it's a matter of public record that the District of Columbia did not appeal that decision why why were they struck down excuse me senator why were the were the restrictions that you defended struck down as discriminatory why were they because they did not satisfy why didn't they the court concluded that there were restrictions that were not neutral of General applicability yeah yeah yeah that's legal leads why didn't they why didn't they on the facts do you know the facts you were a good lawyer why'd you lose we lost because applying the strict scrutiny test the court concluded that the restrictions were not narrowly tailored because of a compelling governmental interest because Senator oh come on Judge don't make me do this do you want me to go through it for you you lost because mayor Bowser was going to mass protests herself personally with thousands of people celebrating them by the way which is fine we have a we have the First Amendment the United States I want to be clear that is totally fine you want to protest go for it I think that's totally fine that wasn't the problem here at the same time she was doing that she was prohibiting churches religious people from Gathering socially distanced outside wearing masks and the district court said you can't do that that's discrimination you can't separate people out based on their ideological beliefs or their positions you can't do that right isn't that what is that what the district court said The District Court said that you agree with us did not could not survive strict scrutiny for those reasons right why are you fighting me on this I can't figure this out I am not fighting you Senator I so yes you agree that's what the district court said that was what the district court do you think they got it right the district get it right the district court we did not appeal that decision I think that District Court decision is consistent with rulings that we got from the Supreme Court clarifying the application of the religious test to covid-19 restrictions in Tandon and I think my time's almost expired and I know other centers won't ask questions so let me just very quickly here do you think it's wrong to discriminate on the basis of religious Faith absolutely Senator why did you argue that religious Services religious people pose a greater risk of infection Than People gather to to argue for defunding the police I was representing my client the mayor in Consulting epidemiologists had issued orders that she thought were going to protect Public Health it was my role to defend those as why did you make that argument that seems like a strange argument to me that religious people are somehow what more infectious than folks who have other ideological positions I don't get it my understanding was the nature of singing and other things epidemiologists thought could transmit covet at a height you didn't put any scientific evidence on the record for it Senator those were fast-moving cases and they weren't going to full briefing and full summary judgment with a record it's not what the district court said the district court said that you engaged in and your client engaged in and you defend you defended discrimination on the business basis of religious belief that you offered no scientific evidence for it that you press these arguments over and over and over without any foundation frankly I'm disappointed that you made those arguments you can choose what arguments to make I'm disappointed you made those arguments I'm disappointed you persisted in defending them here today and for that reason among others I will not support your nomination thank you Mr chairman Senator Tillis

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Length: 6min 21sec (381 seconds)

Published: Wed Jun 07 2023