On Wednesday, the Senate Judiciary Committee held a nomination hearing for, among others, Whitney Hermandorfer, President Donald Trump’s nominee for a seat on the Sixth Circuit Court of Appeals. Hermandorfer, 37, made a name for herself as Director of the Strategic Litigation Unit in Tennessee’s Office of the Attorney General. And given her performance in the hearing, it’s clear why right-wing reactionaries have dubbed the young loyalist an ideal candidate for a promotion. Hermandorfer demonstrated zero interest in restraining the lawlessness of the Trump administration. Instead, she dropped three big hints that she’ll greenlight Trump’s ongoing efforts to kick people of color out of the country.
1. She wouldn’t say Donald Trump has to follow court orders
Federal judges around the country have issued dozens of orders blocking the administration’s various illegal acts, including Trump’s executive order purporting to override the Constitution’s grant of birthright citizenship, and his order invoking a little-used wartime statute as justification for removing Venezuelan nationals from the country en masse. Trump is openly violating the order in the latter case by continuing to disappear American residents. And although he hasn’t violated the order in the birthright citizenship case, he’s arguing in an emergency petition to the Supreme Court that he shouldn’t have to follow it.
So, on Wednesday morning, Illinois Democratic Senator Dick Durbin asked Hermandorfer an easy question: Is the executive branch required to follow orders of federal courts?
Hermandorfer hedged. “If there’s a judgment issued by a court as to the parties, that absolutely binds the parties,” she said. That’s not actually a yes; her preoccupation with “the parties” is a big qualifier, because it’s the crux of the Trump administration’s argument as to why it shouldn’t have to follow the orders blocking his birthright citizenship directive nationwide. The administration’s claim in Trump v. CASA, in which the Supreme Court heard oral argument last month, is that lower courts don’t have the authority to stop Trump from taking away people’s citizenship; they can, at most, stop Trump from taking away the citizenship of specific people—namely, the particular plaintiffs. This is a backdoor way for the administration to launch its denationalization campaign everywhere else, making noncitizens out of whomever they please. Hermandorfer’s answer suggests that’s fine by her.
2. She pretended the Constitution’s Birthright Citizenship Clause might not grant birthright citizenship
Durbin then asked Hermandorfer about the birthright citizenship case directly; although she isn’t representing a party in the case, she and Tennessee Attorney General Jonathan Skrmetti filed an amicus brief on Trump’s behalf. As counsel of record on the brief, Hermandorfer argued that an originalist analysis actually supports Trump’s novel interpretation of the Fourteenth Amendment. Courts have been resoundingly rejecting this nonsense since around 1868. But Hermandorfer insisted otherwise at Wednesday’s hearing. “The notion that this is an open and shut case is hard to square with the contemporaneous evidence,” she said.
Here, too, Hermandorfer was echoing the Trump administration. During the CASA oral argument, Solicitor General D. John Sauer repeatedly chided lower courts for making “snap judgments” about the underlying constitutional question, to the extent it’s possible to make a “snap judgment” about something that has been settled for over 100 years.
3. She wouldn’t say Donald Trump can’t suspend habeas corpus
Two months ago, the five Republican men on the Supreme Court allowed Trump to implement his order removing specified Venezuelans from the country, subject to only one condition: The detainees need to be able to file habeas petitions. Habeas corpus refers to the fundamental right people have to appear in court and challenge the legality of their detention— a critical backstop protecting against illegal confinement. Article I of the Constitution, which pertains to the powers of Congress, provides that “Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Flouting the one meager condition the Court imposed, the Trump administration now claims that it may suspend habeas. So, at Wednesday’s hearing, Minnesota Democratic Senator Amy Klobuchar asked Hermandorfer if presidents have that authority.
There is only one correct answer: They do not. But Hermandorfer demurred. “That is an issue that is under active consideration in the political branches,” she said. Asking who can suspend habeas is a simple, pure question of law, no different from asking which branch of government can legislate. It shouldn’t be controversial. Yet Hermandorfer claimed the question could come before her as a judge, so “it would not be appropriate” for her to answer.
Let’s review. Hermandorfer flirted with a procedural scheme to greenlight implementation of Trump’s unconstitutional birthright citizenship order. She wrongly suggested there’s a reasonable constitutional argument to be made in support of the order, making people vulnerable to deportation and legitimizing an attack on the foundation of multiracial democracy. And she left open the possibility that she would let Trump suspend habeas, allowing the administration to ship people to a faraway country without even the opportunity to contest the government’s action. Judges are supposed to be independent and say what the law is. Hermandorfer seems likely to say the law is whatever Trump wants it to be.
