On Wednesday, the Senate Judiciary Committee held its first judicial nominations hearing of President Donald Trump’s second term. They heard from Trump’s first batch of potential federal judges since he returned to the White House: four nominees to Missouri federal district courts and a nominee to the U.S. Court of Appeals for the 6th Circuit, the federal appeals court for Kentucky, Michigan, Ohio and Tennessee.
The 6th Circuit nominee, Whitney Hermandorfer, is impressively credentialed. Both the valedictorian of her law school class at George Washington University and the editor-in-chief of the law review, she worked at litigation powerhouse Williams & Connolly in Washington, D.C., where current partners sing her praises. Hermandorfer clerked for four federal judges, including three sitting Supreme Court justices. And after returning to her home state of Tennessee, she has served as the director of strategic litigation at the state attorney general’s office.
If I were invited to lunch with Hermandorfer, I expect she would be — as she was during Wednesday’s hearing — modest, poised, interesting and likable. But her paper trail and some of her exchanges with senators could be ominous signs of the Trump judicial nominees to come.
Put aside that Hermandorfer graduated from law school just 10 years ago and served as a law clerk for four of them. Her six years of actual legal practice is roughly half of what the American Bar Association considers necessary to be qualified for a federal judgeship.
What’s far more troubling is how she has spent that time and what she won’t discuss.
For example, Hermandorfer signed Tennessee’s amicus brief in one of the birthright citizenship cases now before the Supreme Court. Tennessee’s brief echoes the Trump administration’s primary arguments:
- First, the citizenship clause does not confer citizenship simply because of a child’s “presence” in the U.S.
- And second, in any event, an injunction that extends beyond the plaintiffs in a given case and applies nationally is an unlawful exercise of judicial power.
When Sen. Dick Durbin, D-Ill., asked Hermandorfer why Tennessee submitted that brief, she said: “We were not satisfied that all of the information regarding the contemporaneous meaning of the Fourteenth Amendment was being presented to the various courts, given that the litigation was proceeding so quickly.” She elaborated that Tennessee’s brief highlighted “1800s-era sources regarding the meaning of the Fourteenth Amendment” and maintained that the state “did not take an ultimate position with regard to the merits of the executive order,” but instead intended to underscore that it isn’t an “open-and-shut case.”
That all sounds fair, right?
Yet the brief’s first page argues plainly that if the Constitution’s citizenship clause is interpreted to focus on “parental domicile,” or where someone’s parents reside, rather than mere presence, Trump’s executive order banning birthright citizenship is constitutional. That position is not only antithetical to more than 125 years of American jurisprudence and lived experience, but her response to Durbin also raises questions about her veracity.
Hermandorfer’s exchange with Sen. Amy Klobuchar about habeas corpus, the legal means by which a prisoner or detainee can seek release, was similarly revealing.
The Minnesota Democrat noted White House deputy chief of staff Stephen Miller’s recent statement that the Trump administration was “actively looking at” suspending the writ of habeas corpus, which, according to the Constitution, can be suspended only “when in Cases of Rebellion or Invasion the public Safety may require it.”
Such suspensions are widely understood to require congressional action. As Hermandorfer’s ex-boss Justice Barrett and appellate superstar Neal Katyal have jointly written, the relevant constitutional text “does not specify which branch of government has the authority to suspend the privilege of the writ, but most agree that only Congress can do it.” Klobuchar therefore asked: “Do you agree that only Congress can suspend the right to habeas corpus?”
Hermandorfer wouldn’t engage, however, much less acknowledge, that every time the writ has been suspended — even when the suspension ultimately was ruled unconstitutional by the Supreme Court — Congress was either involved in the decision or ratified it thereafter, as as in Abraham Lincoln’s case.
Instead, she replied:
That is a issue that is under active consideration by the political branches, and could very well come before me if I were confirmed as a judge. So I think, in prudence, as a judicial nominee, it would not be appropriate for me to pass on the validity of any such arguments.
Hermandorfer isn’t the first judicial nominee to somewhat mischaracterize her prior legal advocacy. Nor is she the first to avoid inconvenient questions. But until this administration, both birthright citizenship and the need for Congress to approve any suspension of habeas were taken as givens across the ideological spectrum.
That Whitney Hermandorfer, like Trump himself, considers them viable legal disputes should concern us all.
