Nomination of Brian Buescher to the United States District Court for
the District of Nebraska
Questions for the
Record December 5,
2018
QUESTIONS FROM SENATOR FEINSTEIN
1. Please respond with your views on the proper application of precedent by judges.
a. When, if ever, is it appropriate for lower courts to depart from Supreme
Court precedent?
It is not appropriate for lower courts to depart from United States Supreme Court
precedent.
b. Do you believe it is proper for a district court judge to question Supreme
Court precedent in an opinion?
A district court judge is required to apply all binding United States Supreme Court
precedent in all decisions. However, a district judge may address matters where
there are gaps in the law, where there is no binding circuit court precedent, or in
cases that do not fall strictly within the requirements of controlling Supreme Court
precedent.
c. When, in your view, is it appropriate for a district court to overturn its
own precedent?
The United States District Court for the District of Nebraska has held that
district courts are not bound by decisions on the same legal issue made by other
district court judges. Melichar v. Blue Cross and Blue Shield of Kansas, Inc.,
309 F. Supp. 3d 719, n. 6 (D. Neb. 2018) (J. Kopf) (“While I reach the same
result as Judge Bataillon in Stumpf [v. Medical Benefits Adm’rs., No.
8:99CV185, 2001 WL 1397326 (D. Neb. Mar. 14, 2001)], I am not bound by
that decision”, quoting Camreta v. Greene, 563 U.S. 692, 709 (2011) (“A
decision of a federal district court judge is not binding precedent in either a
different judicial district, the same judicial district, or even upon the same
judge in a different case.”).
d. When, in your view, is it appropriate for the Supreme Court to overturn its
own precedent?
The United States Supreme Court has the authority under the United States
Constitution and previous Supreme Court precedent to revisit or overturn its own
precedent as it sees fit. As an inferior court nominee, it would be inappropriate for
me to opine as to whether and when it would be appropriate for the United States
Supreme Court to overturn its own precedent.
1

 2. When Chief Justice Roberts was before the Committee for his nomination, Senator Specter
referred to the history and precedent of Roe v. Wade as “super-stare decisis.” A text book on
the law of judicial precedent, co-authored by Justice Neil Gorsuch, refers to Roe v. Wade as
a “super-precedent” because it has survived more than three dozen attempts to overturn it.
(The Law of Judicial Precedent, Thomas West, p. 802 (2016).) The book explains that
“superprecedent” is “precedent that defines the law and its requirements so effectively that it
prevents divergent holdings in later legal decisions on similar facts or induces disputants to
settle their claims without litigation.” (The Law of Judicial Precedent, Thomas West, p. 802
(2016))
a. Do you agree that Roe v. Wade is “super-stare decisis”? Do you agree it is
“superprecedent”?
Roe v. Wade, 410 U.S. 113 (1973) is a landmark decision of the United States Supreme
Court that has been repeatedly reviewed and affirmed by the United States Supreme
Court. If confirmed as a District Court judge, I will apply all United States Supreme
Court precedent, including Roe v. Wade.
b. Is it settled law?
All United States Supreme Court precedent, including Roe v. Wade, is settled law.
3. In Obergefell v. Hodges, the Supreme Court held that the Constitution guarantees samesex couples the right to marry. Is the holding in Obergefell settled law?
From the perspective of a United States District Court, all United States Supreme Court
precedent, including Obergefell v. Hodges, 135 S. Ct. 2071 (2015), is settled law.
4. In Justice Stevens’s dissent in District of Columbia v. Heller he wrote: “The Second
Amendment was adopted to protect the right of the people of each of the several States to
maintain a well-regulated militia. It was a response to concerns raised during the ratification
of the Constitution that the power of Congress to disarm the state militias and create a
national standing army posed an intolerable threat to the sovereignty of the several States.
Neither the text of the Amendment nor the arguments advanced by its proponents evidenced
the slightest interest in limiting any legislature’s authority to regulate private civilian uses
of firearms.”
a. Do you agree with Justice Stevens? Why or why not?
The United States Supreme Court disagreed with Justice Stevens in Heller. If confirmed, I
would be bound as a lower court judge to apply the Supreme Court’s decision in Heller,
along with all other United States Supreme Court precedent.
b. Did Heller leave room for common-sense gun regulation?
In Heller, the United States Supreme Court held that “the right secured by the Second
2

 Amendment is not unlimited.” District of Columbia v. Heller, 554 U.S. 570, 626-27
(2008). The Court went on to address certain categories of permissible limitations.
c. Did Heller, in finding an individual right to bear arms, depart from decades
of Supreme Court precedent?
The United States Supreme Court majority in Heller held that “nothing in [Supreme
Court] precedents forecloses [the Court’s] adoption of the original understanding of the
Second Amendment. It should be unsurprising that such a significant matter has been
for so long judicially unresolved.” Heller, 554 U.S. at 625. As a nominee for a lower
court, I will be bound by the Supreme Court’s reading of its precedents, including its
reading of its own precedent in Heller.
5. In Citizens United v. FEC, the Supreme Court held that corporations have free speech rights
under the First Amendment and that any attempt to limit corporations’ independent political
expenditures is unconstitutional. This decision opened the floodgates to unprecedented sums
of dark money in the political process.
a. Do you believe that corporations have First Amendment rights that are equal
to individuals’ First Amendment rights?
The United States Supreme Court held in Citizens United v. Federal Election Comm’n, 558 U.S.
310, 342 (2010) “that First Amendment protection extends to corporations.” The Court went on to
hold that “political speech does not lose First Amendment protection ‘simply because its source is a
corporation.’” Id. (quoting First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978)). As a
nominee to a lower court, I am bound by United States Supreme Court precedent on this issue.

b. Do individuals have a First Amendment interest in not having their
individual speech drowned out by wealthy corporations?
The Citizens United Court rejected the “antidistortion rationale.” In rejecting the
“antidistortion rationale,” the Court noted that acceptance of such rationale “would permit
[the] Government to ban political speech simply because the speaker is an association that
has taken on the corporate form.” Id. at 349. If confirmed, I will follow all United States
Supreme Court precedent, including Citizens United.
c. Do you believe corporations also have a right to freedom of religion under the
First Amendment?

The United States Supreme Court held in Burwell v. Hobby Lobby Stores, Inc., 134 S.
Ct. 2751, 2759 (2014), that owners of a closely held corporation did not forfeit all
Religious Freedom Restoration Act protection “when they decided to organize their
business as corporations rather than sole proprietorships or general partnerships.” Any
extent to which the Hobby Lobby case protects corporations’ religious freedom rights is
currently the subject of litigation around the country. Pursuant to Canon 3 of the Code
of Conduct for United States Judges, I do not believe it would be appropriate for me to
opine further.
6. In 2014, you ran for the Republican nomination for Nebraska Attorney General. In the
3

 course of that campaign, you made a number of statements demonstrating your opposition
to women’s reproductive rights. In an interview with the Nebraska Family Alliance, for
instance, you said that “unfortunately, under Roe v. Wade, it is not possible to ban abortion
right now.” During the same interview, you called yourself “an avidly pro-life person” and
said that you would “not compromise on that issue,” noting it was “simply [your] moral
fabric.” (Nebraska Family Alliance 2014 Video Voter Guide (Mar. 24, 2014))
a. Do you believe that Roe v. Wade was correctly decided?
Roe v. Wade is a landmark decision of the United States Supreme Court that has been
repeatedly reviewed and affirmed by the United States Supreme Court. If confirmed as
a District Court judge, I will apply all United States Supreme Court precedent,
including Roe v. Wade.
b. What did you mean when you said that you would refuse to “compromise”
on your anti-choice views?
As a candidate for Nebraska Attorney General in 2014, I took political positions and
made statements in an effort to gain support and be elected Nebraska Attorney General.
I made statements regarding what political or advocacy positions I would consider taking
if elected. Such political statements were not made to suggest an intended action as a
federal judge, because at that time I was not being considered as a federal judge. I
believe a judge’s role and obligation is to apply the law without regard to any personal
beliefs regarding the law. It is the role of the legislative and executive branch to make
the law, and it is the judicial branch’s obligation to apply the law, not seek to make law.
If confirmed, I will I will faithfully apply all United States Supreme Court and Eighth
Circuit Court of Appeals precedent on all issues, including Roe v. Wade. As a lower
court judge, I will have no discretion to ignore Supreme Court precedent.
c. What does it mean for your opposition to women’s reproductive rights to be
part of your “moral fabric”?
Please see my answer to question 6(b) above.
7. During your nominations hearing before the Judiciary Committee, you emphasized that
you took these anti-choice positions as a candidate running for office, yet as noted above,
you also said that your anti-choice views were part of your “moral fabric.”
a. If confirmed, would you set aside the entirety of your “moral fabric”
when issuing rulings?
Every person, including every federal judge, has personal morals and beliefs that
a person develops in life and over a career. All judges and nominees also
develop certain views on political matters prior to being nominated to the bench.
I believe a judge’s role and obligation is to apply the law and the United States
Constitution without regard to any personal beliefs regarding the law. If confirmed, I
will faithfully apply all United States Supreme Court and Eighth Circuit Court of
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 Appeals precedent on all issues, without regard to any personal beliefs I may have.
b. If not, how can you assure litigants your moral opposition to reproductive
rights would not affect your rulings if you are confirmed?
The Judicial Oath in 28 U.S.C § 453 requires judges to swear or affirm that they “will
administer justice without respect to persons, and do equal right to the poor and to the rich,
and . . . faithfully and impartially discharge and perform all the duties incumbent . . . under
the Constitution and laws of the United States.” If confirmed, I will abide by this oath. I
will faithfully apply all United States Supreme Court and Eighth Circuit Court of Appeals
precedent on all issues.
8. In a questionnaire from the Nebraska Right to Life PAC that you filled out as a candidate
for Nebraska Attorney General, you responded in the affirmative that you would “support
and endorse legislation that provides conscience protection to health-care providers so they
are free from statutory and regulatory mandates that would otherwise require them to
provide, participate in or make referral for services that conflict with their moral values.”
(Nebraska Right to Life PAC Voter Guide 2014 Survey for State Candidates)
a. Did you understand “services that conflict with their moral values” to extend
to prescribing or filling prescriptions for contraceptives like birth control pills?
As a candidate for Nebraska Attorney General in 2014, I filled out the Nebraska Right
to Life Survey as a candidate in an effort to obtain support for my candidacy for public
office. There is a difference between filling out surveys and taking political positions
as a candidate to try to earn support for elective office and serving as a judge. A
judge’s role and obligation is to apply the law without regard to any personal beliefs.
This question asks that I enter into a political discussion regarding an issue that is and is
likely to be further litigated in Federal Courts. Thus I do not believe it is appropriate
for me to provide commentary on this question. If confirmed, I will faithfully apply all
United States Supreme Court and Eighth Circuit Court of Appeals precedent on all
issues, including Roe v. Wade.
b. What did you understand the questionnaire to mean when it referred
to “services that conflict with their moral values”?
Please refer to my answer to question 8(a) above.
9. During the same 2014 campaign for Nebraska Attorney General, you wrote the following: “I
believe marriage is a union between a man and a woman. I do not believe homosexuality
should be considered the same way race or ethnicity is considered with regard to antidiscrimination laws which currently apply to race or ethnicity.” (Response to State Attorney
General—Republican Questionnaire (Mar. 2014))
a. Do you believe that it is legally permissible to discriminate against
LGBT Americans on the basis of their sexual orientation?
5

 As a candidate for Nebraska Attorney General in 2014, I did what candidates for any
major state or federal office do which is to take political positions on a variety of issues
of the day. After my 2014 run for Nebraska Attorney General, the United States
Supreme Court issued its decision in Obergefell v. Hodges, 135 S. Ct. 2071 (2015),
recognizing marriages of same-sex couples. Currently there is litigation pending around
the country regarding whether certain anti-discrimination laws apply to claims of
discrimination due to sexual orientation. As a nominee for a federal judgeship, I do not
believe it is appropriate for me to comment on this issue which is the subject of Federal
Court litigation. If confirmed, I will faithfully apply all United States Supreme Court
and Eighth Circuit Court of Appeals precedent on all issues, including Obergefell.
b. If you do believe so, what is the legal justification for allowing
such discrimination?
Please refer to my answer to question 9(b) above.
c. If not, why did you make that statement in 2014 and what prompted a change
in your views?
Please refer to my answer to question 9(b) above.

10. Your campaign for Nebraska Attorney General also focused on your efforts to fight
regulations implemented by what you called the “overreaching federal government.” You
specifically pledged to “push back” against the EPA and regulations that the agency
adopted under the Clean Water Act.
Please provide specific examples of regulations indicative of an “overreaching federal
government.” For each example, please explain why that regulation indicates federal
government overreach.
Canon 5 of the Code of Conduct for United States Judges states that a judge should not
engage in political activity. As a nominee to a Federal Court, I believe it would be
inappropriate to enter into a public discussion regarding what might constitute
“overreaching” federal regulations. In addition, questions of federal regulation are currently
being litigated in courts around the country, and as a judicial nominee, I believe it would be
inappropriate to opine on issues that may come in front of the Court at some point.
11. On your Senate Questionnaire, you indicate that you have intermittently been a member of
the Federalist Society since 1997. The Federalist Society’s “About Us” webpage explains
the purpose of the organization as follows: “Law schools and the legal profession are
currently strongly dominated by a form of orthodox liberal ideology which advocates a
centralized and uniform society. While some members of the academic community have
dissented from these views, by and large they are taught simultaneously with (and indeed
as if they were) the law.” It says that the Federalist Society seeks to “reorder[] priorities
within the legal system to place a premium on individual liberty, traditional values, and the
rule of law. It also requires restoring the recognition of the importance of these norms
among lawyers, judges, law students and professors. In working to achieve these goals, the
6

 Society has created a conservative and libertarian intellectual network that extends to all
levels of the legal community.”
a. Could you please elaborate on the “form of orthodox liberal ideology which
advocates a centralized and uniform society” that the Federalist Society claims
dominates law schools?
I did not write the Federalist Society’s website. I do not know who wrote this statement
and am not aware of the understanding of the quote you reference.
b. How exactly does the Federalist Society seek to “reorder priorities within the
legal system”?
I did not write the Federalist Society’s website. I do not know who wrote this
statement and do not know how the Federalist Society seeks to “reorder priorities
within the legal system,” if it indeed does so at all.
c. What “traditional values” does the Federalist society seek to place a premium
on?
I did not write the Federalist Society’s website. I do not know precisely what the
Federalist Society is referring to when it makes reference to “traditional values.”
12. On February 22, 2018, when speaking to the Conservative Political Action Conference
(CPAC), White House Counsel Don McGahn told the audience about the Administration’s
interview process for judicial nominees. He said: “On the judicial piece … one of the things
we interview on is their views on administrative law. And what you’re seeing is the
President nominating a number of people who have some experience, if not expertise, in
dealing with the government, particularly the regulatory apparatus. This is different than
judicial selection in past years…”
a. Did anyone in this Administration, including at the White House or the
Department of Justice, ever ask you about your views on any issue related to
administrative law, including your “views on administrative law”? If so, by
whom, what was asked, and what was your response?
During my June, 2018 interview with representatives of the White House Counsel’s
Office and the United States Department of Justice, we discussed a variety of topics.
I do not recall whether we had a specific discussion as to any views I might have on
administrative law.
b. Since 2016, has anyone with or affiliated with the Federalist Society, the
Heritage Foundation, or any other group, asked you about your views on any
issue related to administrative law, including your “views on administrative
law”? If so, by whom, what was asked, and what was your response?
I do not recall anyone affiliated with these groups asking me about my “views on
7

 administrative law.” As outlined in background information submitted, I do have
considerable experience advising clients with regard to state and federal regulation.
c. What are your “views on administrative law”?
As a nominee to a lower court, I will abide by all binding Supreme Court and Eighth
Circuit Court of Appeals precedent, including those applicable to administrative law.
13. When is it appropriate for judges to consider legislative history in construing a statute?
The United States Supreme Court has held that legislative history can be referenced in certain
circumstances when the text of the statute is ambiguous. I will follow United States Supreme
Court and Eighth Circuit Court of Appeals precedent on this issue if confirmed.
14. At any point during the process that led to your nomination, did you have any discussions
with anyone — including, but not limited to, individuals at the White House, at the Justice
Department, or any outside groups — about loyalty to President Trump? If so, please
elaborate.
I do not recall having any discussions with anyone in the process that led to my nomination
regarding any purported loyalty to President Trump.
15. Please describe with particularity the process by which you answered these questions.
I was provided these questions on December 5, 2018, which was one week after my confirmation
hearing in front of the United States Senate Judiciary Committee. I reviewed the questions,
drafted answers to the questions, and then sent drafts to the United States Department of Justice,
requesting feedback on the answers. I then revised my answers where I deemed appropriate and
authorized the Department of Justice to submit my answers on my behalf. All of my answers are
my own.

8

 Senator Dick Durbin
Written Questions for Brian Buescher
December 5, 2018
For questions with subparts, please answer each subpart separately.
Questions for Brian Buescher
1. In 2014 you were a candidate in the Republican primary to be the Attorney General of
Nebraska. You filled out a candidate questionnaire
(http://www.voterinformation.org/media/pdf/state_attorney_general.pdf) in which you made a
number of provocative statements. These statements raise questions about your impartiality if
you were to be confirmed as a federal judge.
a. You said “I will focus on fighting Obamacare.” What in your career have you
done to fight Obamacare?
As a candidate for Nebraska Attorney General in 2014, I took political positions and made
statements in an effort to gain support and be elected Nebraska Attorney General. I also
made statements regarding what political or advocacy positions I would consider taking if
elected. I was not elected Nebraska Attorney General, and thus did not act on advocacy
positions I proposed when running for office.
b. If you are confirmed as a federal judge, would you commit to recuse yourself from
cases involving Obamacare, given your public statement that you were committed
to fighting it?
I believe the role of a judge is much different than that of an advocate or candidate for
public office. If confirmed, I will apply all provisions of the Code of Conduct for United
States Judges, including Canon 3(C), addressing recusal and disqualification.
c. You said “I do not believe homosexuality should be considered the same way race
or ethnicity is considered with regard to anti-discrimination laws which currently
apply to race or ethnicity.” Do you still hold this view?
After my 2014 run for Nebraska Attorney General, the United States Supreme Court
issued its decision in Obergefell v. Hodges, 135 S. Ct. 2071 (2015), recognizing
marriages of same-sex couples. The law has changed since I ran for Nebraska Attorney
General and took political positions on these issues.
The question of how homosexuality should be considered with regard to antidiscrimination laws is the subject of extensive litigation in numerous jurisdictions
around the country. As a nominee to a Federal Court, it would be inappropriate for
me to comment on matters that may or are likely to come in front of the Court if
confirmed. If confirmed, I will faithfully apply all United States Supreme Court and
Eighth Circuit Court of Appeals precedent on all issues, including Obergefell.

 d. Do you think it should be legal to fire a person for being gay or transgender?
Please refer to my answer to question 1(c) above.
e. You said “I will also protect Nebraska’s agriculture and business interests from
overreaching governmental regulations that will not serve to protect our
environment but only further agendas of certain activist organizations.” To
what governmental regulations were you referring in this statement?
As a candidate for Nebraska Attorney General in 2014, I took political positions on
a variety of issues of the day in an effort to obtain support and get elected. I also
made statements regarding what political or advocacy positions I would consider
taking if elected.
Canon 5 of the Code of Conduct for United States Judges states that a judge should
not engage in political activity. As a nominee to a Federal Court, I believe it would
be inappropriate to enter into a public discussion regarding political issues such as
the question of whether the federal government has exceeded its legal authority with
regard to certain federal regulations. In addition, questions of federal regulation are
currently being litigated in courts around the country, and as a judicial nominee, I
believe it would be inappropriate to opine on issues that may come in front of the
Court at some point.
I believe a judge’s role and obligation is to apply the law without regard to his or
her personal beliefs or prior political positions. If confirmed, I will faithfully apply
all United States Supreme Court and Eighth Circuit Court of Appeals precedent.
f. Would you recuse yourself from cases involving the regulations to which you
referred in subpart (e), given your stated position on them?
If confirmed, I will apply all provisions of the Code of Conduct for United States Judges,
including Canon 3(C), addressing recusal and disqualification.
2.

a. Do you believe that judges should be “originalist” and adhere to the original
public meaning of constitutional provisions when applying those provisions
today?
When considering constitutional provisions, I believe interpretation should begin with the
language of the constitutional provision. A lower court judge should then adhere to the
meaning that the United States Supreme Court has assigned such a provision. United
States District Court judges rarely have the opportunity to interpret United States
Constitution provisions where there is no United States Supreme Court precedent.
b. If so, do you believe that courts should adhere to the original public meaning of
the Foreign Emoluments Clause when interpreting and applying the Clause

 today? To the extent you may be unfamiliar with the Foreign Emoluments Clause in
Article I, Section 9, Clause 8, of the Constitution, please familiarize yourself with the
Clause before answering. The Clause provides that:
…no Person holding any Office of Profit or Trust under [the United
States], shall, without the Consent of the Congress, accept of any
present, Emolument, Office, or title, of any kind whatever, from any
King, Prince, or foreign State.
Please refer to my answer to question 2(a) above.
2. You say in your questionnaire that you have been a member of the Federalist Society
intermittently since 1997.
a. Why did you join the Federalist Society?
I joined the Federalist Society during law school at Georgetown University Law Center
because I appreciated the activities and discussion of legal issues by the Georgetown chapter
of the organization.
b. Was it appropriate for President Trump to publicly thank the Federalist Society for
helping compile his Supreme Court shortlist? For example, in an interview with
Breitbart News’ Steve Bannon on June 13, 2016, Trump said “[w]e’re going to have great
judges, conservative, all picked by the Federalist Society.” In a press conference on
January 11, 2017, he said his list of Supreme Court candidates came “highly
recommended by the Federalist Society.”
As a judicial nominee, I do not believe it is appropriate to comment on political matters,
including comments made by the President. See Canon 5 of the Code of Conduct for United
States Judges.
c. Please list each year that you have attended the Federalist Society’s annual
convention.
I have never attended the Federalist Society annual convention.
d. On November 17, 2017, then-Attorney General Sessions spoke before the Federalist
Society’s convention. At the beginning of his speech, Attorney General Sessions
attempted to joke with the crowd about his meetings with Russians. Video of the speech
shows that the crowd laughed and applauded at these comments. (See
https://www.reuters.com/video/2017/11/17/sessions-makes-russia-joke-atspeech?videoId=373001899) Did you attend this speech, and if so, did you laugh or
applaud when Attorney General Sessions attempted to joke about meeting with
Russians?
I did not attend this speech.

 3.

a. Is waterboarding torture?
I have not fully reviewed this issue. My understanding is that Federal law considers an act
torture if a person acting under color of law “specifically intend[s] to inflict severe physical
or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon
another person within his custody or physical control.” 18 U.S.C. § 2340(1).
b. Is waterboarding cruel, inhuman and degrading treatment?
Although I have not fully reviewed this issue, after conducting limited research, my
understanding is that waterboarding is not an authorized interrogation technique pursuant to
the Army Field Manual, 42 U.S.C. § 2000dd-2(a)(2). Further, my understanding is that
nobody in the custody or control of the United States may be subject to an interrogation
technique not approved by the Army Field Manual.
c. Is waterboarding illegal under U.S. law?
I have not fully reviewed this matter and come to any legal conclusion on this question.
Please see my answers to questions 3(a) and (b) above.

4. Was President Trump factually accurate in his claim that three to five million people
voted illegally in the 2016 election?
I am not able to assess the accuracy of this statement. Further, Canon 5 of the Code of
Conduct for United States Judges prohibits judicial nominees from commenting on political
matters, which I believe includes commenting on statements made by the President of the
United States.
5. Do you think the American people are well served when judicial nominees decline to
answer simple factual questions?
I believe judicial nominees should answer questions to the best of their ability within the
confines of the Code of Conduct for United States Judges and other legal limitations,
including attorney-client privilege.
6.

a. Do you have any concerns about outside groups or special interests making
undisclosed donations to front organizations like the Judicial Crisis Network in
support of your nomination? Note that I am not asking whether you have solicited
any such donations, I am asking whether you would find such donations to be
problematic.
I am not aware of any outside groups or special interests making donations to support my
nomination. The question of whether such donations are problematic is a political issue that I

 believe would be inappropriate for me to comment on pursuant to Canon 5 of the Code of
Conduct for United States Judges.
b. If you learn of any such donations, will you commit to call for the undisclosed
donors to make their donations public so that if you are confirmed you can have full
information when you make decisions about recusal in cases that these donors may
have an interest in?
If confirmed, I will apply all provisions of the Code of Conduct for United States Judges,
including Canon 3(C), addressing recusal and disqualification.
c. Will you condemn any attempt to make undisclosed donations to the Judicial Crisis
Network on behalf of your nomination?
Please see my answers to questions 6(a) and (b) above.
7.

a. Do you interpret the Constitution to authorize a president to pardon himself?
I have not researched this question and have not come to any legal conclusion as to this issue.
b. What answer does an originalist view of the Constitution provide to this question?
I have not researched this question and have not come to any legal conclusion as to this issue.

 Nomination of Brian C. Buescher, to be United States District Court
Judge for the District of Nebraska
Questions for the Record
Submitted December 5,
2018
QUESTIONS FROM SENATOR COONS
1. With respect to substantive due process, what factors do you look to when a case
requires you to determine whether a right is fundamental and protected under the
Fourteenth Amendment?
The United States Supreme Court has provided these factors in decisions such as Meyer
v. Nebraska, 262 U.S. 390 (1923), Washington v. Glucksberg, 521 U.S. 702 (1997), and
Obergefell v. Hodges, 135 S. Ct. 2584 (2015). I would apply the factors outlined in
United States Supreme Court precedent along with precedent from the Eighth Circuit
Court of Appeals.
a. Would you consider whether the right is expressly enumerated in the Constitution?
Yes, as directed by the United States Supreme Court.
b. Would you consider whether the right is deeply rooted in this nation’s history and
tradition? If so, what types of sources would you consult to determine whether a right is
deeply rooted in this nation’s history and tradition?
Yes, as directed by the United States Supreme Court. See Washington v. Glucksberg, 521
U.S. 702 (1997).
c. Would you consider whether the right has previously been recognized by Supreme
Court or circuit precedent? What about the precedent of a court of appeals?
Yes. I would be bound by United States Supreme Court and Eighth Circuit Court of
Appeals precedent. I would consider precedent of another court of appeals as persuasive
authority.
d. Would you consider whether a similar right has previously been recognized by Supreme
Court or circuit precedent? What about whether a similar right had been recognized by
Supreme Court or circuit precedent?
Yes.
e. Would you consider whether the right is central to “the right to define one’s own
concept of existence, of meaning, of the universe, and of the mystery of human life”?
See Planned Parenthood v. Casey, 505 U.S. 833, 581 (1992); Lawrence v. Texas, 539
U.S. 558, 574 (2003) (quoting Casey).
Casey and Lawrence are binding precedents. I would apply them along with other binding
1

 precedents.
f. What other factors would you consider?
I would consider any other factors deemed appropriate by United States Supreme Court and
Eighth Circuit Court of Appeals precedent.
2. Does the Fourteenth Amendment’s promise of “equal protection” guarantee equality
across race and gender, or does it only require racial equality?
The United States Supreme Court has applied heightened scrutiny under the Fourteenth
Amendment of the United States Constitution in cases involving race and gender. See, e.g.,
United States v. Virginia, 518 U.S. 515 (1996); Craig v. Boren, 429 U.S. 190 (1976).
a. If you conclude that it does require gender equality under the law, how do you respond
to the argument that the Fourteenth Amendment was passed to address certain forms of
racial inequality during Reconstruction, and thus was not intended to create a new
protection against gender discrimination?
The United States Supreme Court has held that the Fourteenth Amendment of the United
States Constitution requires heightened scrutiny for cases involving gender. This is binding
precedent that I would apply without regard to any arguments regarding the intent of the
individuals who passed the Fourteenth Amendment.
b.
If you conclude that the Fourteenth Amendment has always required equal
treatment of men and women, as some originalists contend, why was it not until 1996, in
United States v. Virginia, 518 U.S. 515 (1996), that states were required to provide the same
educational opportunities to men and women?

I do not know why the United States Supreme Court did not previously address this issue.
United States v. Virginia is controlling United States Supreme Court precedent and I will
faithfully apply such authority.
c. Does the Fourteenth Amendment require that states treat gay and lesbian couples
the same as heterosexual couples? Why or why not?
In Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015), the United States Supreme
Court held that same-sex couples must be afforded the right to marry “on the same
terms as accorded to couples of the opposite sex.”
d. Does the Fourteenth Amendment require that states treat transgender people the same
as those who are not transgender? Why or why not?
Equality under the law is of extreme importance in our legal system. However, I believe
this issue is the subject of current litigation. Therefore, Canon 3(A)(6) of the Code of
Conduct for United States Judges prohibits me from commenting.
3. Do you agree that there is a constitutional right to privacy that protects a woman’s right
to use contraceptives?
2

 Yes. The United States Supreme Court has recognized this in Griswold v. Connecticut, 381
U.S. 479 (1965), and Eisenstadt v. Baird, 405 U.S. 438 (1972).
a. Do you agree that there is a constitutional right to privacy that protects a woman’s
right to obtain an abortion?
Yes. The United States Supreme Court recognized this right in Roe v. Wade, 410 U.S. 113
(1973), and Planned Parenthood of Southeast. Pa. v. Casey, 505 U.S. 833 (1992).
b. Do you agree that there is a constitutional right to privacy that protects intimate
relations between two consenting adults, regardless of their sexes or genders?
Yes. The United States Supreme Court has recognized this right in Lawrence v. Texas, 539
U.S. 558 (2003).
c. If you do not agree with any of the above, please explain whether these rights are
protected or not and which constitutional rights or provisions encompass them.
Please see my answers to questions 3(a) through 3(c) above.
4. In United States v. Virginia, 518 U.S. 515, 536 (1996), the Court explained that in 1839,
when the Virginia Military Institute was established, “[h]igher education at the time was
considered dangerous for women,” a view widely rejected today. In Obergefell v. Hodges,
135 S. Ct. 2584, 2600-01 (2015), the Court reasoned, “As all parties agree, many same-sex
couples provide loving and nurturing homes to their children, whether biological or adopted.
And hundreds of thousands of children are presently being raised by such couples. . . .
Excluding same-sex couples from marriage thus conflicts with a central premise of the right
to marry. Without the recognition, stability, and predictability marriage offers, their children
suffer the stigma of knowing their families are somehow lesser.” This conclusion rejects
arguments made by campaigns to prohibit same-sex marriage based on the purported
negative impact of such marriages on children.
a. When is it appropriate to consider evidence that sheds light on our changing
understanding of society?
The United States Supreme Court has considered such evidence previously,
including in Obergefell and Virginia. If confirmed, I would follow all binding
United States Supreme Court and Eighth Circuit Court of Appeals precedent.
b. What is the role of sociology, scientific evidence, and data in judicial analysis?
Federal Rule of Evidence 702 lists the factors a United States District Court is to consider
when determining whether to admit testimony from a “witness who is qualified as an expert
by knowledge, skill, experience, training, or education . . . .” Fed. R. Evid. 702. See also
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). One factor for the Court to
consider is whether “the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in issue[.]” Fed. R.
Evid. 702(a).
3

 5. In the Supreme Court’s Obergefell opinion, Justice Kennedy explained, “If rights were
defined by who exercised them in the past, then received practices could serve as their own
continued justification and new groups could not invoke rights once denied. This Court has
rejected that approach, both with respect to the right to marry and the rights of gays and
lesbians.”
a. Do you agree that after Obergefell, history and tradition should not limit the rights
afforded to LGBT individuals?
In Obergefell, the United States Supreme Court ruled that same-sex individuals have
a right to marry under the Fourteenth Amendment of the United States Constitution.
As a lower court judge, I will faithfully apply the holding of Obergefell and all
United States Supreme Court and Eighth Circuit Court of Appeals precedent.
b. When is it appropriate to apply Justice Kennedy’s formulation of substantive due
process?
Please see my response to question 5(a) above. If confirmed, I will apply all binding
case law to each and every case I handle.
6. You are a member of the Federalist Society, a group whose members often advocate an
“originalist” interpretation of the Constitution.
a. In his opinion for the unanimous Court in Brown v. Board of Education, 347 U.S. 483
(1954), Chief Justice Warren wrote that although the “circumstances surrounding the
adoption of the Fourteenth Amendment in 1868 . . . cast some light” on the amendment’s
original meaning, “it is not enough to resolve the problem with which we are faced. At
best, they are inconclusive . . . . We must consider public education in the light of its full
development and its present place in American life throughout the Nation. Only in this
way can it be determined if segregation in public schools deprives these plaintiffs of the
equal protection of the laws.” 347 U.S. at 489, 490-93. Do you consider Brown to be
consistent with originalism even though the Court in Brown explicitly rejected the notion
that the original meaning of the Fourteenth Amendment was dispositive or even
conclusively supportive?
I am not currently a member of the Federalist Society, although I have previously been a
member. I am aware this issue has been the subject of scholarly discussion and debate. I
have not studied this question in detail. Brown is a landmark decision of the United States
Supreme Court and I would faithfully apply this binding precedent if confirmed.
b. How do you respond to the criticism of originalism that terms like “‘the freedom of
speech,’ ‘equal protection,’ and ‘due process of law’ are not precise or self-defining”?
Robert Post & Reva Siegel, Democratic Constitutionalism, National Constitution Center,
https://constitutioncenter.org/interactive-constitution/white-papers/democraticconstitutionalism (last visited Dec. 4, 2018).
I am not familiar with the article referenced in this question. If confirmed, I will be bound to
follow all United States Supreme Court precedent, whether or not the decisions were based
upon an analysis of original public meaning of the provision being interpreted.
4

 c. Should the public’s understanding of a constitutional provision’s meaning at the time of
its adoption ever be dispositive when interpreting that constitutional provision today?
If confirmed, I will be bound by United States Supreme Court precedent. In cases
where the United States Supreme Court conducted an analysis of the original public
meaning of the Constitution, I will be bound by such analysis and holding. In
circumstances the United States Supreme Court utilized some other method of
interpretation, I will be bound by such analysis and holding as well.
d. Does the public’s original understanding of the scope of a constitutional provision
constrain its application decades later?
Please see my response to question 6(c) above.
e. What sources would you employ to discern the contours of a constitutional provision?
I would begin with the text of the provision, and then apply all relevant United States
Supreme Court and Eighth Circuit Court of Appeals precedent to discern the contours of a
constitutional provision.
7. In a 2014 interview with the Nebraska Family Alliance, you advocated for eroding abortion
rights “bit by bit” and enacting laws that go “as far as they can.” In 2016, the Supreme Court
decided Whole Woman’s Health v. Hellerstedt, 135 S. Ct. 2292 (2016).
a. Do you agree that the dispositive issue in that case was whether the actions of the Texas
legislature amounted to an undue burden on a women’s right to choose?
As a candidate for Nebraska Attorney General in 2014, I took political positions and
made statements in an effort to gain support and be elected Nebraska Attorney General.
I made statements regarding what political or advocacy positions I would consider
taking if elected. Such political statements were not made to suggest an intended action
as a federal judge, because at that time I was not being considered as a federal judge.
The case of Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), is United
States Supreme Court precedent. The Court specifically addressed the undue burden
standard in detail and applied the standard in the case. See, e.g., Hellerstedt, 136 S. Ct.
at 2309-2320. If confirmed, I will faithfully apply all United States Supreme Court
precedent, including Hellerstedt.
b. Do you agree that, under this legal standard, a court must consider whether a
legislature’s stated rationale to enact legislation that restricts abortion access is a
pretextual justification for the legislation?
Please see my answer to question 7(a) above. As a lower court judge, I will be
bound to apply the precedent of Hellerstedt and other United States Supreme
Court and Eighth Circuit Court of Appeals cases.
8. You have previously expressed opposition to provisions of the Affordable Care Act,
asserting your view that it punishes doctors and medical professionals for their religious
5

 beliefs, and you indicated support for challenging the Affordable Care Act on that basis.
a. Please explain what you meant when you asserted that the ACA punishes doctors and
medical professionals for their religious beliefs.
As a candidate for Nebraska Attorney General in 2014, I took many political positions as
a part of my campaign. I believe it is appropriate for a candidate for political office to
discuss political positions and views in an effort to seek votes. The role of a federal
judge is different. A federal judge does not make political statements or act as an
advocate, but rather is required to apply the law and binding precedent in a fair and
impartial manner.
Pursuant to Canon 5 of the Code of Conduct for United States Judges, a judge should not
engage in political activity. I believe it is inappropriate pursuant to the Code of Conduct
for United States Judges for a judicial candidate to publically opine on this political
issue. If confirmed, I will faithfully apply all constitutional federal law, including the
Affordable Care Act. I will likewise apply United States Supreme Court and Eighth
Circuit Court of Appeals precedent on all issues.
b. Given your prior statements, would you recuse from legal challenges to the Affordable
Care Act if confirmed?
If confirmed, I will apply all provisions of the Code of Conduct for United States Judges,
including Canon 3(C), addressing recusal and disqualification.
c. When does the law require deference to a service provider’s religious beliefs that conflict
with generally applicable laws protecting others’ fundamental rights?
I believe this question is the subject of continued litigation. As a nominee to a Federal
Court, it would be inappropriate for me to comment on matters that may or are likely to
come in front of the Court. If confirmed, I will apply all United States Supreme Court and
Eighth Circuit Court of Appeals precedent as to the Affordable Care Act.
9. Do you agree that the Supreme Court’s analysis in Price Waterhouse v. Hopkins, 490 U.S.
228 (1989), holding that treating employees differently in the workplace on the basis of
whether they conform to stereotypes constitutes sex discrimination under Title VII of the
Civil Rights Act of 1964, remains binding precedent?
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), was superseded in part by federal
statute, as outlined in Landgraf v. USI Film Prod., 511 U.S. 244, 250-51 (1994)
(expressly identifying “one of the [Civil Rights Act of 1991’s] purposes ‘to respond to
recent decisions of the Supreme Court’” and further noting § 107 [of the 1991 Act]
responds to [Price Waterhouse v. Hopkins] by setting forth standards applicable in ‘mixed
motive’ cases”). See also Burrage v. United States, 571 U.S. 204, 213 n. 4 (2014). Price
Waterhouse remains binding precedent in part subject to subsequent Federal statute and
United States Supreme Court decisions.
10. After Obergefell v. Hodges, 135 S. Ct. 2584 (2015), can states deny married same-sex
couples certain benefits or protections offered to married opposite-sex couples?
6

 I believe this question is the subject of continued litigation. As a nominee to a Federal
Court, it would be inappropriate for me to comment on matters that may or are likely to
come in front of the Court. If confirmed, I will apply all United States Supreme Court and
Eighth Circuit Court of Appeals precedent.

7

 Questions for the Record for Brian C. Buescher
From Senator Mazie K. Hirono
1. You have described yourself as “an avidly pro-life person” and called the Supreme
Court’s decision recognizing a constitutional right to abortion “unfortunate[].”
a. Why did you consider the Supreme Court’s decision in Roe v.
Wade to be unfortunate?
As a candidate for Nebraska Attorney General in 2014, I did what candidates for any
major state or federal office typically do, which is to take political positions on a
variety of issues of the day. There is a difference between taking political positions as
a candidate for elective office and serving as a federal judge. I believe a judge’s role
and obligation is to apply the law and the United States Constitution without regard to
his or her own personal beliefs. If confirmed, I will faithfully apply all United States
Supreme Court and Eighth Circuit Court of Appeals precedent on all issues, including
Roe v. Wade.
b. Do you still consider the Supreme Court’s decision in Roe v.
Wade to be unfortunate? Why or why not?
As a candidate for Nebraska Attorney General in 2014, I took many political positions
as a part of my campaign. I believe it is appropriate for a candidate for political office
to discuss political positions and views. The role of a federal judge is different. I
believe it is inappropriate pursuant to the Code of Conduct for United States Judges for
a judicial candidate to opine on the correctness of certain Supreme Court precedent. If
confirmed, I will faithfully apply all United States Supreme Court and Eighth Circuit
Court of Appeals precedent on all issues, including Roe v. Wade.
2. During your 2014 campaign for Nebraska Attorney General, you called abortion
“immoral” and stated unequivocally that you “will not compromise” on abortion based
on your “moral fabric.” When confronted with these statements during your
confirmation hearing, you testified that “[t]here is a difference between running for
office and taking positions on issues of the day . . . and serving as a judge in a federal
court.”
a. Does a federal judge have to ignore his or her morals when ruling in a
case?
Every person, including every federal judge, has personal morals and beliefs
that are developed over a career in life and in the law. All judges and
nominees also develop certain views on political matters prior to being
nominated to the bench. I believe a judge’s role and obligation is to apply the law
and the United States Constitution without regard to any personal beliefs regarding the
law. If confirmed, I will faithfully apply all United States Supreme Court and Eighth
Circuit Court of Appeals precedent on all issues, including Roe v. Wade.
b. Is it still in your “moral fabric” that you “will not compromise” on
abortion? If not, when did this change?
As a candidate for Nebraska Attorney General in 2014, I took political positions and

 made statements in an effort to gain support and be elected Nebraska Attorney
General. I made statements regarding what political or advocacy positions I would
consider taking if elected. Such political statements were not made to suggest an
intended action as a federal judge, because at that time I was not being considered as a
federal judge. I believe a judge’s role and obligation is to apply the law without regard
to any personal beliefs regarding the law. It is the role of the legislative and executive
branches to make the law; it is the judicial branch’s obligation to apply the law. If
confirmed, I will faithfully apply all United States Supreme Court and Eighth Circuit
Court of Appeals precedent on all issues, including Roe v. Wade. As a lower court
judge, I will have no discretion to ignore Supreme Court precedent.
c. If it remains in your “moral fabric” that you “will not compromise” on
abortion, please explain why a woman looking to enforce her
constitutional right to an abortion should have confidence that you
will treat her fairly if you are confirmed as a judge.
Please see my answer to question 2(b) above.
d. Should you be confirmed, will you recuse yourself from any case relating to
abortion rights?
If confirmed, I will apply all provisions of the Code of Conduct for United States
Judges, including Canon 3(C), addressing recusal and disqualification.
3. You have said that the federal government should recognize marriage as between a
man and a woman. In Obergefell v. Hodges, the Supreme Court held that there is a
constitutional right to gay marriage.
Do you believe Obergefell was wrongly decided?
Obergefell v. Hodges is a landmark decision of the United States Supreme Court. As a
nominee to an inferior court, I will faithfully apply all United States Supreme Court and
Eighth Circuit Court of Appeals precedent on all issues, including Obergefell v. Hodges.
4. When you ran for Nebraska Attorney General in 2014, you said: “I do not believe
homosexuality should be considered the same way as race or ethnicity is
considered with regard to anti-discrimination laws which currently apply to race or
ethnicity.”
a. What was the legal basis of your statement?
The law has changed since I ran for Nebraska Attorney General and took political
positions on these issues. Specifically, in 2015, the United States Supreme Court
issued its decision in Obergefell v. Hodges, 135 S. Ct. 2071 (2015), recognizing
marriages of same-sex couples. If confirmed, I will faithfully apply all United States
Supreme Court and Eighth Circuit Court of Appeals precedent on all issues, including
Obergefell.
b. Do you still believe that homosexuality should not be considered the
same way as race or ethnicity is considered with regard to antidiscrimination laws which currently apply to race or ethnicity? Why
or why not?

 The question of how homosexuality should be considered with regard to antidiscrimination laws is the subject of extensive litigation in numerous jurisdictions
around the country. As a nominee to a the United States District Court, it would be
inappropriate for me to comment on matters that may or are likely to come in front
of the court if confirmed. If confirmed, I will faithfully apply all United States
Supreme Court and Eighth Circuit Court of Appeals precedent on all issues,
including Obergefell.
c. Do you believe discrimination against LGBTQ individuals should be
prohibited by the law in the same way racial and ethnic discrimination is
prohibited by law?
Please see my answer to question 4(b) above.
d. In view of your statement, please explain why LGBTQ individuals
should feel confident that you will treat them fairly if you are
confirmed as a judge.
The Judicial Oath in 28 U.S.C § 453 requires judges to swear or affirm that they “will
administer justice without respect to persons, and do equal right to the poor and to the
rich, and . . . faithfully and impartially discharge and perform all the duties incumbent . .
. under the Constitution and laws of the United States.” If confirmed, I will abide by
this oath. I will faithfully apply all United States Supreme Court and Eighth Circuit
Court of Appeals precedent on all issues, including Obergefell.
e. Should you be confirmed, will you recuse yourself from any case
relating to discrimination on the basis of sexual orientation or
sexual identity?
If confirmed, I will apply all provisions of the Code of Conduct for United States
Judges, including Canon 3(C), regarding recusal and disqualification. It would be
inappropriate under the Judicial Canons to state now whether or not I would recuse
myself on any certain line of cases.
5. During your campaign for Nebraska Attorney General, you said that you would “push
back” on the federal government’s purported push to infringe on religious liberty.
a. How has the federal government pushed to infringe on religious liberty?
Questions of religious liberty are currently being litigated around the country, and as a
judicial nominee, I believe it would be inappropriate to opine on issues that may come in
front of the Court at some point.
b. During your campaign, you singled out the Affordable Care Act, which
you described as punishing doctors and medical professionals for their
valid religious beliefs. How did the Affordable Care Act punish doctors
and medical professionals for their valid religious beliefs?
As a candidate for Nebraska Attorney General in 2014, I did what candidates for any
major state or federal office do, which is to take political positions on a variety of

 issues. However, as stated above, there is a difference between taking political
positions as a candidate for elective office and serving as a federal judge. I believe a
judge’s role and obligation is to apply the law without regard to any personal beliefs or
prior political positions regarding the law. If confirmed, I will faithfully apply all
United States Supreme Court and Eighth Circuit Court of Appeals precedent, including
cases involving the Affordable Care Act, such as National Federation of Independent
Business v. Sebelius, 567 U.S. 519 (2012), and King v. Burwell, 135 S. Ct. 2480
(2015).
c. If you are confirmed as a federal judge, would you see it as your duty
to “push back” on these types of actions?
The Nebraska Attorney General is charged with serving as an advocate for the State of
Nebraska in a variety of cases. The Nebraska Attorney General also takes political
positions and advocates for changes in law, while also being obligated to enforce the
law. As a candidate for Nebraska Attorney General in 2014, I took political positions
on various issues and suggested a variety of advocacy strategies that I would consider if
elected.
The role of a judge is different than that of a political candidate, attorney, or
advocate. A judge must decide cases and apply the law, not advocate for one
side or the other in a legal proceeding. If confirmed, I would not be acting as an
advocate, but as an impartial judge.
d. There are times when one person’s constitutional right to freely exercise
her religion conflicts with another person’s constitutional right to equal
protection under the law. If you were confirmed as a federal judge, how
would you approach such a case?
When serving the public as a federal judge, a judge must carefully review and analyze
all binding authority. If confirmed, I will faithfully apply all United States Supreme
Court and Eighth Circuit Court of Appeals precedent on all issues, and perform the
duties of a Federal judge with the care and attention required.
6. During your campaign for Nebraska Attorney General, you also said you would “push
back” on what you referred to as “overreaching federal government,” particularly in
the agricultural sector. You continued this theme in a number of presentations. In one
presentation you made clear your preference for business over the environment when
you complained of “federal over-reach that will hamper economic growth and drive up
costs for farmers and chemical producers.”
a. Please list examples of what you viewed as “federal overreach” that
you believed would hamper economic growth and drive up costs for
businesses.
As a candidate for Nebraska Attorney General in 2014, I took political positions on
a variety of issues of the day in an effort to obtain support and get elected.
Canon 5 of the Code of Conduct for United States Judges states that a judge should
not engage in political activities. As a nominee to a Federal Court, I believe it
would be inappropriate to enter into a public discussion regarding political issues

 such as the question of whether the federal government has exceeded its legal
authority with regard to certain federal regulations. In addition, questions of
federal regulation are currently being litigated in courts around the country, and as
a judicial nominee, I believe it would be inappropriate to opine on issues that may
come in front of the Court at some point.
I believe a judge’s role and obligation is to apply the law without regard to any
personal beliefs or prior political positions regarding the law. If confirmed, I will
faithfully apply all United States Supreme Court and Eighth Circuit Court of
Appeals precedent.
b. What was the factual basis for your conclusion that federal overreach
will hamper economic growth and drive up costs for farmers and
chemical producers?
Please see my answer to question 6(a) above.
c. Please explain why, in view of your clear position, a party looking to
enforce federal laws or regulations against farmers or chemical
producers should have confidence that you will treat them fairly if you
are confirmed as a judge.
The Judicial Oath in 28 U.S.C § 453 requires judges to swear or affirm that they “will
administer justice without respect to persons, and do equal right to the poor and to the
rich, and . . . faithfully and impartially discharge and perform all the duties incumbent . .
. under the Constitution and laws of the United States.” If confirmed, I will abide by
this oath. I will faithfully apply all United States Supreme Court and Eighth Circuit
Court of Appeals precedent on all issues.
7. You reported that you have been a member of the Knights of Columbus since 1993.
The Knights of Columbus has taken a number of extreme positions. For example, it
was reportedly one of the top contributors to California’s Proposition 8 campaign to
ban same-sex marriage.
a. If confirmed, do you intend to end your membership with this
organization to avoid any appearance of bias?
The Knights of Columbus is a Roman Catholic service organization with approximately
two million members world-wide. I have not drafted any policies or positions for the
national organization. If confirmed, I will abide by the Code of Conduct of United
States Judges and will not affiliate with any organization in violation of the Code.
b. If confirmed, will you recuse yourself from all cases in which the
Knights of Columbus has taken a position?
The Knights of Columbus does not have the authority to take personal political
positions on behalf of all of its approximately two million members. If confirmed, I
will apply all provisions of the Code of Conduct for United States Judges, including
Canon 3(C), regarding recusal and disqualification.
8. In May of this year, the Knight of Columbus issued a statement in support of the
Trump administration’s efforts to bar clinics that provide abortion services or referrals

 from receiving federal family-planning funds under Title X funds. In 2016, the Knights
of Columbus online magazine published an article claiming that contraceptives have
“potentially dangerous side effects related to women’s health” and that “[a] growing
body of research indicates that contraception even alters a woman’s ability to choose a
more genetically suited spouse” because “contraception suppresses fertility and its
corresponding hormones.”
a. You were a member of the Knights of Columbus when they published
these statements. Reproductive health providers who receive Title X funds
provide a critical service to women. Do you believe federal funds should
not be given to these providers who support abortion services?
As a nominee to a Federal Court, I believe it would be inappropriate to enter into a
public discussion regarding political issues such as Title X funds. In addition,
questions of such funds are or likely will be the subject of additional federal
litigation. I believe it would be inappropriate to opine on issues that may come in
front of the Court at some point.
b. Do you believe contraceptives may be dangerous to a woman’s health
and may “even alters a woman’s ability to choose a more genetically
suited spouse”?
I am not familiar with the article referenced in this question and its subparts. The
statements referenced in the question were not made by me. Any author in a
Knights of Columbus publication does not have authority to bind the organization
or any of its two million members on any given political issue. Canon 5 of the
Code of Conduct for United States Judges further states that a judge should not
engage in political activity. As a nominee to a Federal Court, I believe it would be
inappropriate to enter into a public discussion regarding political issues such as
those addressed in this question.
c. If these are not your views, what steps have you taken to make clear that
you do not hold these views?
Please refer to my answer to question 8(b) above.
d. Given your membership in this organization, what assurances can
litigants have that you will deal with reproductive rights and
abortion issues fairly and impartially?
The Judicial Oath in 28 U.S.C § 453 requires judges to swear or affirm that they “will
administer justice without respect to persons, and do equal right to the poor and to the
rich, and . . . faithfully and impartially discharge and perform all the duties incumbent . .
. under the Constitution and laws of the United States.” If confirmed, I will abide by
this oath. I will faithfully apply all United States Supreme Court and Eighth Circuit
Court of Appeals precedent on all issues.
9. An ethical consideration under Canon 2 of the American Bar Association’s Code of
Professional Responsibility calls for “every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving the
disadvantages.” The only pro bono work you included on your Senate Judiciary
Questionnaire was your service on the Nebraska State Records Board and work as

 volunteer legal counsel for the Douglas County Republican Party and the Nebraska
Republican Party.
Have you provided any pro bono legal services to the disadvantaged among
us? If so, please describe that work.
As lawyers, we are all called to utilize our skills and knowledge in different
ways to benefit the public or those who are disadvantaged. I have donated
my time to political candidates to assist them in complying with state and
federal election law. My law firm on numerous occasions has provided
financial assistance to organizations that provide legal services to the
disadvantaged. Further, I served as a full-time domestic violence prosecutor
for a three-month time period as a pro-bono offering of my law firm with no
extra payment to me or my firm from the city or county attorney’s office.
10. You have a Twitter account with over 300 followers that is locked from public access.
a. Will you disclose the tweets in your Twitter account to the Committee? If
not, why not?
I am an infrequent user of Twitter. Now that I have been nominated for the
federal bench, I have chosen to make my Twitter account private. I have done so
for the sake of my own and my family’s privacy, given that my Twitter feed
contains semi-private information and personal photographs of family and
friends.
b. Have you tweeted about LGBTQ people or LGBTQ issues from
your Twitter account?
Please see my response to 10(a).
c. Have you tweeted about reproductive rights issues, abortions, or Roe v. Wade
from your Twitter account?
Please see my response to 10(a).

 Nomination of Brian C. Buescher
United States District Court for the District of
Nebraska Questions for the Record
Submitted December 5, 2018
QUESTIONS FROM SENATOR BOOKER
1. Impartiality is a fundamental part of a federal judge’s duties. Impartiality is central to the
rule of law and judicial independence. Canon 3 of the Code of Conduct for United States
Judges instructs: “A Judge Should Perform the Duties of the Office Fairly, Impartially and
Diligently.” Canon 3(C), moreover, specifically provides: “A judge shall disqualify himself
or herself in a proceeding in which the judge’s impartiality might reasonably be
questioned.”
When you ran for Attorney General of Nebraska in 2014, you made a number of deeply
troubling statements that place your impartiality in question on several important issues. One
of these issues is abortion.
In a video interview with the Nebraska Family Alliance during your 2014 campaign,
for example, you said:
I am an avidly pro-life person, and I will not compromise on that issue.
That’s just simply my moral fabric, and that’s what I’ll do as Attorney
General. When regulating abortion, my view is this: we should regulate
abortion as much as we possibly can. I’m in favor of banning abortion.
Unfortunately, under the Roe v. Wade law, or case, and its prodigy, that
is not possible to ban abortion right now. So what I believe we should do
is we should assess the situation and try to enact laws that go as far as we
can without being invalidated. So in other words, we need to make sure
our laws have a chance of being upheld by the courts, because, if not,
we’re really kind of wasting our time, because, if it’s invalidated, then
the law doesn’t ever get enacted. So what we do is we go after abortion
bit by bit, and we try to make sure that we have laws that’ll withhold
judicial scrutiny. 1
a. If you are confirmed, why should a litigant in your courtroom expect to get a fair hearing
from an impartial judge in a case involving abortion rights, in light of statements like
this one?
As a candidate for Nebraska Attorney General in 2014, I did what candidates for
any major state or federal office do, which is to take political positions on a variety
of issues of the day. However, there is a difference between taking political
positions as a candidate for elective office and serving as a Federal judge. I believe
a judge’s role and obligation is to apply the law without regard to any personal
1

Interview with Brian Buescher, Nebraska Family Alliance 2014 Video Voter Guide, at 4:37 (Mar. 24, 2014).

1

 beliefs regarding the law. If confirmed, I will faithfully apply all United States
Supreme Court and Eighth Circuit Court of Appeals precedent on all issues,
including Roe v. Wade.
b. You said that you wanted to “go after abortion bit by bit” and “try to enact laws that
go as far as we can without being invalidated.” If you are confirmed, why shouldn’t
a litigant in your courtroom be concerned that you will favor this litigation strategy
to undermine Roe v. Wade and other important precedents?
The Nebraska Attorney General is charged with serving as an advocate for the State
of Nebraska in a variety of cases. The Nebraska Attorney General also takes
political positions and advocates for changes in law, while also being obligated to
enforce the law. As a candidate for Nebraska Attorney General in 2014, I took
political positions on various issues and suggested a variety of advocacy strategies
that I would consider if elected.
The role of a judge is different than that of a political candidate, attorney, or
advocate. A judge must decide cases and apply the law, not advocate for one side or
the other in a legal proceeding. Just as a former prosecutor who becomes a judge is
able to set aside his or her prior advocacy against criminal defendants to act as a fair
and impartial judge in criminal proceedings, if confirmed, I will faithfully apply all
United States Supreme Court precedent and set aside any personal beliefs I might
have when facing litigants in court.
c. If you are confirmed, and a case involving abortion rights comes before you that
in your view is not squarely controlled by Supreme Court or Eighth Circuit
precedent, why shouldn’t a litigant in your courtroom be concerned that you would issue
a ruling that aims to “go after abortion bit by bit”?

Please see my responses to questions (a) and (b) above.
d. In a 2014 questionnaire for the Nebraska Right to Life PAC, you indicated that you
“support[ed] reversing or changing the Roe v. Wade and Doe v. Bolton decisions so
that elected legislative bodies (State Legislatures and U.S. Congress) may once
again protect unborn children by limiting and/or prohibiting abortion.” 2 In a survey
from 2009, when you were running for another office, you indicated that you
“support[ed] the complete reversal of Roe v. Wade and Doe v. Bolton, thereby
allowing state legislatures and Congress to once again protect unborn children.” 3
Given your previously expressed support for a “complete reversal” of Roe, why
should litigants in your courtroom expect you to be able to apply Roe and its
progeny fairly and impartially?
As a candidate for Nebraska Attorney General in 2014 and for Omaha City Council
in 2009, I filled out the Nebraska Right to Life Survey as a candidate in an effort to
SJQ Attachments at 833 (Neb. Right to Life PAC, Voter Guide: 2014 Survey for State Candidates).
2009 Voter Guide and Candidate Survey, NEB. RIGHT TO LIFE PAC, http://nebraskarighttolife.org/wpcontent/uploads/2013/06/2009primaryelectionvg.pdf.
2
3

2

 obtain support for each candidacy for public office. In 2014, all four Republican
candidates filled out the survey similarly. In 2009, the top three vote-getting
candidates in the nonpartisan primary election (two Republicans and one
Democratic candidate), who collectively earned over 65% of the primary vote cast,
all filled out the survey similarly. In particular, all three top vote-earning
candidates provided the same answer with regard to the 2009 question referenced
above. The Democratic candidate, who eventually won the election, remains in
office today.
There is a difference between filling out surveys and taking political positions as a
candidate to try to earn support for elective office and serving as a judge. A judge’s
role and obligation is to apply the law without regard to any personal beliefs the
judge might have or have previously expressed regarding the law. If confirmed, I
will faithfully apply all United States Supreme Court and Eighth Circuit Court of
Appeals precedent on all issues, including Roe v. Wade.
e. Do you believe that Roe v. Wade was correctly decided? If you cannot give a
direct answer, please explain why and provide at least one supportive citation.
Please explain any discrepancy between your response here and your past support
for a “complete reversal” of Roe.
Roe v. Wade is a landmark decision of the United States Supreme Court that has
been repeatedly reviewed and affirmed by the United States Supreme Court. If
confirmed as a District Court judge, I will apply all United States Supreme Court
precedent, including Roe v. Wade.
f. As noted, the Code of Conduct for United States Judges requires a judge to
“disqualify himself or herself in a proceeding in which the judge’s impartiality
might reasonably be questioned.” Given your statements about, for example,
favoring “banning abortion” and being unwilling to “compromise,” wouldn’t your
impartiality on this issue reasonably be questioned?
If confirmed, I will apply all provisions of the Code of Conduct for United States
Judges, including Canon 3(C), addressing recusal and disqualification. It would be
inappropriate under the Judicial Canons to state now whether or not I would recuse
myself on any certain line of cases.
g. Given the positions you’ve taken, would you recuse yourself from any
cases involving abortion rights if you are confirmed as a federal judge?
Please see my answer to question 1(f) above.
2. You have also made troubling statements with regard to LGBTQ rights. In the same 2014
video interview with the Nebraska Family Alliance, you said: “I believe marriage is
between a man and a woman, and that’s the way the government should recognize

3

 marriage.” 4 In a campaign questionnaire, you stated: “I believe marriage is between a man
and a woman. I do not believe homosexuality should be considered the same way race or
ethnicity is considered with regard to anti-discrimination laws which currently apply to race
or ethnicity.” 5
a. If you are confirmed, why should a same-sex couple arguing their case in your
courtroom expect to have a fair and impartial judge, in light of statements like
these?
As a candidate for Nebraska Attorney General in 2014, I did what candidates for
any major state or federal office do which is to take political positions on a variety
of issues of the day. However, there is a difference between taking political
positions as a candidate for elective office and serving as a Federal judge. I believe
a judge’s role and obligation is apply to the law without regard to any personal
beliefs or prior political positions regarding the law.
After my 2014 run for Nebraska Attorney General, the United States Supreme
Court issued its decision in Obergefell v. Hodges, 135 S. Ct. 2071 (2015),
recognizing marriages of same-sex couples. If confirmed, I will faithfully apply all
United States Supreme Court and Eighth Circuit Court of Appeals precedent on all
issues, including Obergefell.
b. If you are confirmed, why should LGBTQ people in your courtroom who allege
that their employer discriminated against them because of their sexual orientation
or their gender identity expect to have a fair and impartial judge, in light of statements like
these?

The role of a judge is different than that of a political candidate. A judge must
decide cases and apply the law. Just as a former prosecutor who becomes a judge is
able to set aside his or her prior advocacy against criminal defendants to act as a fair
and impartial judge in criminal proceedings, if confirmed, I will faithfully apply all
United States Supreme Court precedent, including Obergefell, and set aside any
personal believes I might have when facing litigants in court.
c. As noted, the Code of Conduct for United States Judges requires a judge to
“disqualify himself or herself in a proceeding in which the judge’s impartiality
might reasonably be questioned.” Given your statements about marriage equality
and LGBTQ rights, wouldn’t your impartiality in this area reasonably be
questioned?
If confirmed, I will apply all provisions of the Code of Conduct for United States
Judges, including Canon 3(C) regarding recusal and disqualification. It would be
inappropriate under the Judicial Canons to state now whether or not I would recuse
myself on any certain line of cases.
4
5

Interview with Brian Buescher, Nebraska Family Alliance 2014 Video Voter Guide, at 2:00 (Mar. 24, 2014).
SJQ Attachments at 832 (State Attorney General—Republican Questionnaire).

4

 d. Given the positions you have taken on same-sex marriage, would you recuse
yourself from any cases involving the rights of same-sex couples if you are
confirmed as a federal judge?
Please see my answer to question (c) above.
e. Given the positions you have taken on LGBTQ discrimination, would you recuse
yourself from any cases involving the rights of LGBTQ people if you are
confirmed as a federal judge?
Please see my answer to question (c) above.
f. If you are confirmed, and a case involving the rights of LGBTQ people comes
before you that in your view is not squarely controlled by Supreme Court or Eighth
Circuit precedent, why shouldn’t a litigant in your courtroom be concerned that you
would issue a ruling that aligns with your statements about same-sex marriages and
LGBTQ discrimination?
Please see my answer to question (c) above.
3. In a television advertisement for your Attorney General campaign, you said, “As Attorney
General, I’ll stand up to the Obama Administration, continue the fight against Obamacare,
and protect the rights of the unborn.” 6
a. If you are confirmed, and a case involving the Affordable Care Act comes to your
courtroom, why should litigants expect you to be able to approach this case fairly
and impartially, given your prior promise to “continue the fight against Obamacare”?
As a candidate for Nebraska Attorney General in 2014, I took political positions on
a variety of issues of concern to Nebraska voters. However, there is a difference
between taking political positions as a candidate for elective office and serving as a
federal judge. I believe a judge’s role and obligation is to apply the law without
regard to any personal beliefs or prior political positions regarding the law. If
confirmed, I will faithfully apply all United States Supreme Court and Eighth
Circuit Court of Appeals precedent, including cases involving the Affordable Care
Act, such as National Federation of Independent Business v. Sebelius, 567 U.S. 519
(2012), and King v. Burwell, 135 S. Ct. 2480 (2015).
b. As noted, the Code of Conduct for United States Judges requires a judge to
“disqualify himself or herself in a proceeding in which the judge’s impartiality
might reasonably be questioned.” Given your stated opposition to the Affordable
Care Act, wouldn’t your impartiality in a case involving this law reasonably be
questioned?
If confirmed, I will apply all provisions of the Code of Conduct for United States
6

Brian Buescher for Att’y Gen. TV Commercial (Apr. 30, 2014), https://www.youtube.com/watch?v=SOW_dbaPv6s.

5

 Judges, including the provisions regarding disqualification and recusal. It would be
inappropriate under the Judicial Canons to state now whether or not I would recuse
myself on any certain line of cases.
c. Given your stated opposition to the Affordable Care Act, would you recuse
yourself from any cases involving the interpretation or application of this law?
If confirmed, I will apply all provisions of the Code of Conduct for United States
Judges, including the provisions regarding recusal. It would be inappropriate under
the Judicial Canons to state now whether or not I would recuse myself on any
certain line of cases.
d. If you are confirmed, and a case involving the Affordable Care Act comes before
you that in your view is not squarely controlled by Supreme Court or Eighth Circuit
precedent, why shouldn’t a litigant in your courtroom be concerned that you would
issue a ruling that aligns with your promise to “continue the fight against
Obamacare”?
Please see my response to question (c) above.
4. At your hearing last week, you said: “If I am so fortunate to be confirmed to the bench, my
personal views no longer matter. What matter is enforcing or applying the law, as in
federal statute, and also applying or enforcing the United States Constitution as written.
And my personal beliefs are checked at the door, and that’s what I will do if I am so
fortunate to be confirmed to the United States District Court for the District of Nebraska.”
What is a specific example of a significant moment in your legal career when you have had
to ensure that your “personal beliefs” were “checked at the door” because the law
compelled otherwise?
In 2004, I served as a domestic violence prosecutor on a full-time basis for three months
for the Douglas County, Nebraska County Attorney’s office and for the City of Omaha. At
one point, I was prosecuting a defendant who had been convicted of assaulting women
over five times. The woman the defendant allegedly assaulted – who was the subject of
the prosecution I was handling – was scared and refused to show up to testify against the
defendant on his most recent charge. My personal belief at the time was that the defendant
should be convicted and charged again because based upon the evidence available I
believed he was guilty and his alleged conduct was abhorrent. However, there was
insufficient evidence to prosecute the case. Despite my personal beliefs and desires, the
law required the case to be dropped.
5. As you are no doubt aware, the agriculture sector has become increasingly highly
concentrated, favoring the interests of major corporations and squeezing small family
farmers. Today 65 percent of all pork, 53 percent of all chicken, and 84 percent of all beef
is slaughtered by just four companies. 7 Small family farmers often confront a hard choice:
7

Leah Douglas, Consolidation Is Eating Our Food Economy, NEW AM. (May 5, 2016), https://www newamerica.org
/weekly/122/consolidation-is-eating-our-food-economy.

6

 try to compete with huge corporations, or work for them through starkly one-sided
contracts.
In your legal practice at your law firm, you’ve represented some of the nation’s largest
and most powerful agribusinesses. You’ve also strongly criticized the impact of federal
regulations on agribusinesses.
As a candidate for Attorney General in 2014, you were quoted in the Scottsbluff StarHerald as saying: “I’m the only one who has fought the federal government in its
overreach in farming and ranching and more will be required going forward.” 8
In a campaign radio commercial, you stated: “As an agribusiness attorney, I’ve
personally fought the overreaches of the Obama Administration and defended
Nebraskans from Washington bureaucrats. . . . I’ll defend our agribusinesses, and our
way of life, against intrusions from the federal government.” 9
And in a Falls City Journal article, you were quoted as saying: “We need to push back on
regulations now. . . . I’m the only candidate who’s sued the federal government. I’ve
represented farmers, ranchers, and ag interests in matters that relate directly to what the
attorney general does when it comes to regulation and over regulation. I have been up
against the EPA, I have been up against the National Park Service and the interior
department and the soil conservation service. I understand what Nebraska faces.” 10
a. Based on your work experience, do you think that corporate concentration is
a problem in American agriculture today?
As an agribusiness attorney, I have represented large agribusinesses in legal
disputes. I have also represented, and, in fact, currently represent, smaller
family farming operations in legal matters. I have also represented a variety
of clients in disputes regarding federal or state regulations, with specific
experience representing clients in the area of Federal government regulation.
I have specific experience in agriculture and currently serve as the chair of
the agribusiness litigation group for a large law firm.
I believe, however, that this question asks me to provide an answer to a
political question on an issue of agricultural policy. Although I have
extensive experience in agricultural law, Canon 5 of the Code of Conduct for
United States Judges provides that a judge should not engage in political
activity. I believe it would be inappropriate for me to provide commentary
in response to this question under Canon 5 now that I have been nominated
to be a Judge on the United States District Court for the District of Nebraska.
b. Based on your work experience, do you think that rising corporate concentration
in agriculture has caused serious hardship for small family farmers?
8

SJQ Attachments at 725.
Brian Buescher for Att’y Gen. Radio Commercial (Apr. 2014).
10
SJQ Attachments at 735-36.
9

7

 Please see my answer to question (a) above.
c. What kinds of efforts were you anticipating when you said that “more will be
required going forward” to “f[i]ght the federal government in its overreach in
farming and ranching”?
As a candidate for Nebraska Attorney General in 2014, I took certain political
positions regarding federal regulation during my campaign. As I stated above,
however, there is a difference between taking political positions as a candidate for
elective office and serving as a federal judge. A judge’s role is to apply the law
without regard to his or her own personal beliefs. If confirmed, I will faithfully
apply all United States Supreme Court and Eighth Circuit Court of Appeals
precedent on all issues, including on cases involving Federal regulation.
d. If you are confirmed, and a case involving federal efforts to rein in powerful
agribusinesses and support small family farmers comes before your court, why
should litigants expect you to be a fair and impartial judge?
If confirmed, I will apply all provisions of the Code of Conduct for United States
Judges, including the provisions regarding recusal. It would be inappropriate under
the Judicial Canons to state now whether or not I would recuse myself on any
certain line of cases.
6. According to a Brookings Institution study, African Americans and whites use drugs at
similar rates, yet blacks are 3.6 times more likely to be arrested for selling drugs and 2.5
times more likely to be arrested for possessing drugs than their white peers. 11 Notably,
the same study found that whites are actually more likely than blacks to sell drugs. 12
These shocking statistics are reflected in our nation’s prisons and jails. Blacks are five
times more likely than whites to be incarcerated in state prisons. 13 In my home state of
New Jersey, the disparity between blacks and whites in the state prison systems is greater
than 10 to 1. 14
a. Do you believe there is implicit racial bias in our criminal justice system?
Yes.
b. Do you believe people of color are disproportionately represented in our nation’s
jails and prisons?
I am aware that there exists statistics which illustrate disparate representation of
Jonathan Rothwell, How the War on Drugs Damages Black Social Mobility, BROOKINGS INST. (Sept. 30, 2014),
https://www.brookings.edu/blog/social-mobility-memos/2014/09/30/how-the-war-on-drugs-damages-black-social-mobility.
12
Id.
13
Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons, SENTENCING PROJECT (June 14,
2016), http://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons.
14
Id.
11

8

 certain racial groups in America’s jails and prisons.
c. Prior to your nomination, have you ever studied the issue of implicit racial bias in
our criminal justice system? Please list what books, articles, or reports you have
reviewed on this topic.
I have not studied this issue.
7. According to a Pew Charitable Trusts fact sheet, in the 10 states with the largest declines
in their incarceration rates, crime fell by an average of 14.4 percent. 15 In the 10 states that
saw the largest increase in their incarceration rates, crime decreased by an average of 8.1
percent. 16
a. Do you believe there is a direct link between increases in a state’s incarcerated
population and decreased crime rates in that state? If you believe there is a
direct link, please explain your views.
I have not reached any particular conclusion regarding any statistical relationship
between incarceration and crime rates.
b. Do you believe there is a direct link between decreases in a state’s incarcerated
population and decreased crime rates in that state? If you do not believe there is
a direct link, please explain your views.
I have not reached any particular conclusion regarding any statistical relationship
between incarceration and crime rates.
8. Do you believe it is an important goal for there to be demographic diversity in the
judicial branch? If not, please explain your views.
Yes.
9. Do you believe that Brown v. Board of Education 17 was correctly decided? If you cannot
give a direct answer, please explain why and provide at least one supportive citation.
Brown v. Board of Education is a landmark decision from the United States Supreme
Court that has had extraordinary importance in the jurisprudence of our country. As a
nominee to the United States District Court for the District of Nebraska, I will faithfully
apply this decision and all United States Supreme Court precedent.
10. Do you believe that Plessy v. Ferguson 18 was correctly decided? If you cannot give a direct
15

Fact Sheet, National Imprisonment and Crime Rates Continue To Fall, PEW CHARITABLE TRUSTS (Dec. 29, 2016),
http://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2016/12/national-imprisonment-and-crime-ratescontinue-to-fall.
16
Id.
17

347 U.S. 483 (1954).
163 U.S. 537 (1896).

18

9

 answer, please explain why and provide at least one supportive citation.
The Plessy v. Ferguson decision caused great pain and harm in our society and was
overruled by Brown v. Board of Education and decisions following it. If confirmed, I will
faithfully apply all United States Supreme Court precedent, and give no deference to Plessy
v. Ferguson or any other case that has been overruled by the United States Supreme Court.
11. Has any official from the White House or the Department of Justice, or anyone else involved
in your nomination or confirmation process, instructed or suggested that you not opine on
whether any past Supreme Court decisions were correctly decided?
The responses I provide here are my own. As a nominee to a lower court, I believe that
Canons 1 and 3 of the Code of Conduct for United States Judges suggest it would be
inappropriate to opine as to whether a list of United States Supreme Court cases were
decided correctly. The role of a district court judge is to follow and apply United States
Supreme Court precedent, not debate whether this or that case was correctly decided.
12. President Trump has stated on Twitter: “We cannot allow all of these people to invade our
Country. When somebody comes in, we must immediately, with no Judges or Court
Cases, bring them back from where they came.” 19 Do you believe that immigrants,
regardless of status, are entitled to due process and fair adjudication of their claims?
The Code of Conduct for United States Judges prohibits judges from making political
statements. I believe it would be inappropriate under the Judicial Canons to opine as to a
statement made by the President of the United States. Cases involving federal
immigration policy are likewise pending in courts around the county, and Canon 3
prohibits me from commenting.

19

Donald J. Trump (@realDonaldTrump), TWITTER (June 24, 2018, 8:02 A.M.), https://twitter.com/realDonaldTrump
/status/1010900865602019329.

10

 Questions for the Record from Senator Kamala D. Harris
Submitted December 5, 2018
For the Nomination of
Brian Craig Buescher, to the U.S. District Court for the District of Nebraska

1. In 2014, as a candidate for Attorney General of Nebraska, you conducted an interview

with the Nebraska Family Alliance. In that interview, you said you favored a complete
ban on abortion, but that, “unfortunately, under Roe v. Wade, it is not possible to ban
abortion right now.” In place of a complete abortion ban, you advocated for restricting
abortion access “bit by bit” and enacting laws that go “as far as they can” without being
overturned.
a. Do you stand by these statements today?
As a candidate for Nebraska Attorney General in 2014, I took political positions
and made statements in an effort to gain support and be elected Nebraska Attorney
General. I made statements regarding what political or advocacy positions I would
consider taking if elected. Such political statements were not made to suggest an
intended action as a federal judge, because at that time I was not being considered
as a federal judge. I believe a judge’s role and obligation is to apply the law
without regard to any personal beliefs regarding the law. If confirmed, I will
faithfully apply all United States Supreme Court and Eighth Circuit Court of
Appeals precedent on all issues, including Roe v. Wade, 410 U.S. 959 (1973). As a
lower court judge, I will have no discretion to ignore Supreme Court precedent.

2. In Whole Woman’s Health in 2016, the U.S. Supreme Court considered Texas House Bill
2, which imposed new restrictions on health care facilities that provided abortions. After
the law passed, the number of those facilities in Texas dropped in half, severely limiting
access to health care for the women of Texas. The Supreme Court invalidated two
provisions of the Texas law, holding that Texas House Bill 2 imposed an undue burden
on women seeking an abortion.
a. Do you agree that Texas House Bill 2 was an attempt to restrict abortion
access “bit by bit”?
I was not a part of the passage of Texas House Bill 2, and am therefore unware of the
strategy or motivations in passing such a law. I am thus unaware of the intent of
Texas House Bill 2.
b. Did the Court in Whole Woman’s Health change or clarify the “undue
burden” test used to evaluate laws restricting access to abortion? If so, how?
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), affirmed the undue
burden standard as outlined in Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833 (1992). Whole Woman’s Health and Casey are United States
Page 1 of 7

 Supreme Court precedent that are binding as to decisions by lower court judges. I
have not studied in detail the intricacies of the undue burden test the United States
Supreme Court applied in Whole Woman’s Health. If confirmed, I will faithfully
apply all United States Supreme Court and Eighth Circuit Court of Appeals precedent
on all issues, including the holdings of Whole Woman’s Health and Casey.
c. When determining whether a law places an undue burden on a woman’s
right to choose, do you agree that the analysis should consider whether the
law would disproportionately affect poor women?
Please see my answer to question 2(b) above. If confirmed, I will be bound to follow
Whole Woman’s Health and other binding United States Supreme Court precedent
regarding the undue burden standard and analysis.

3. Since 1993, you have been a member of the Knights of Columbus, an all-male society

comprised primarily of Catholic men. In 2016, Carl Anderson, leader of the Knights of
Columbus, described abortion as “a legal regime that has resulted in more than 40 million
deaths.” Mr. Anderson went on to say that “abortion is the killing of the innocent on a
massive scale.” 1
a. Were you aware that the Knights of Columbus opposed a woman’s right to
choose when you joined the organization?
The Knights of Columbus is a Roman Catholic service organization with
approximately two million members worldwide. The organization has a religious and
charitable purpose. I joined the Knights of Columbus when I was 18 years old and
have been a member ever since. My membership has involved participation in
charitable and community events in local Catholic parishes. I do not recall if I was
aware whether the Knights of Columbus had taken a position on the abortion issue
when I joined at the age of eighteen.
b. Do you agree with Mr. Anderson that abortion is “the killing of the innocent
on a massive scale”?
Please see my answer to question 3(a) above. I did not draft this language. If
confirmed, I would be bound by precedent of the United States Supreme Court and
the Eighth Circuit Court of Appeals and would not be guided by statements made by
others. See Canon 1 of the Code of Conduct for United States Judges (requiring
judges to preserve the independence of the judiciary).
c. Do you agree with Mr. Anderson that legal abortion in the United States has
“resulted in more than 40 million deaths”?

David Gibson, “Knights of Columbus Head Says Catholics Cannot Vote for Abortion Advocates,” Religious News
Services, Aug. 4, 2016, https://religionnews.com/2016/08/02/knights-of-columbus-leader-says-catholics-cannotvote-for-abortion-advocates/.
1

Page 2 of 7

 Please refer to my answers to question 3(a) and (b) above.
d. Have you ever, in any way, assisted with or contributed to advocacy against
women’s reproductive rights? If the answer is “yes,” please explain the
nature and scope of your assistance.
As noted in my Judiciary Committee hearing, I previously ran for political office and
ran as a pro-life candidate. If confirmed, I will faithfully apply all United States
Supreme Court and Eighth Circuit Court of Appeals precedent on all issues, including
Roe v. Wade.

4. In 2008, the Knight of Columbus spent $1,000,000 to support Proposition 8, a California
ballot initiative that defined marriage as between a man and a woman. 2

a. Were you aware that the Knights of Columbus opposed marriage equality
when you joined the organization?
I do not recall if I was aware whether the Knights of Columbus had taken a position
on same-sex marriage at the time I joined at the age of 18.
b. Were you aware that the Knights of Columbus supported Proposition 8 in
California?
Please see my response to question 4(a). I have not been involved with drafting
policies or positions on behalf of the Knights of Columbus, nor have I been involved
in making decisions regarding the activities of the national or international
organization.
c. Do you believe the right to marry carries an implicit guarantee that everyone
should be able to exercise that right equally?
The United States Supreme Court held in Obergefell v. Hodges, 135 S. Ct. 2071
(2015), that same-sex couples have a right to marry under the Fourteenth Amendment
of the United States Constitution. To the extent this question implicates pending or
impending litigation, Canon 3 of the Code of Conduct for United States Judges
prohibits me from commenting.
d. If a state or county makes it harder for same-sex couples to marry than for
straight couples to marry, are those additional hurdles constitutional?
Please see my response to question 4(c) above.
e. If a state or county makes it harder for same-sex couples to adopt children,
are those additional hurdles constitutional?
Veronique de Turenne, “Knights of Columbus Tip the Balance with Big Anti-Gay Marriage Donation,” Los
Angeles Times, Aug. 20, 2008, https://latimesblogs.latimes.com/lanow/2008/08/prop-8-post.html.
2

Page 3 of 7

 Please see my response to question 4(c) above.
f. Have you ever, in any way, assisted with or contributed to advocacy against
LGBTQ rights? If the answer is “yes,” please explain the nature and scope
of your assistance.
As noted at my Judiciary Committee hearing, I previously ran for political office. As
a candidate for political office, I took political positions on a variety of issues of the
day. If confirmed, I will faithfully apply all United States Supreme Court and Eighth
Circuit Court of Appeals precedent on all issues, including Obergefell.

5. In deciding how closely to look at discriminatory laws, the U.S. Supreme Court often

considers two things: (1) is the group being discriminated against defined by immutable
characteristics, and (2) has the group faced discrimination in the past. If a group has
those characteristics, the Court has said it should be more suspicious of laws that harm
them.
a. Is being gay or lesbian an immutable characteristic?
The legal question of what level of scrutiny should apply to classifications based
upon sexual orientation is currently the subject of litigation around the country. I do
not believe it is appropriate for me to comment pursuant to Canon 3(A)(6) of the
Code of Conduct for United States Judges.
b. Have gay and lesbian Americans been subject to discrimination in the past?
Please see my response to question 5(a) above.
c. Is being transgender an immutable characteristic?
Please see my response to question 5(a) above.
d. Have transgender Americans been subject to discrimination in the past?
Please see my response to question 5(a) above.
e. If you agree that LGBTQ Americans have faced discrimination in the past,
do you believe they should be protected by federal anti-discrimination laws?
Please see my response to question 5(a) above.

6. District court judges have great discretion when it comes to sentencing defendants. It is
important that we understand your views on sentencing, with the appreciation that each
case would be evaluated on its specific facts and circumstances.

Page 4 of 7

 a. What is the process you would follow before you sentenced a defendant?
If confirmed, I would approach sentencing defendants with the utmost attention and
care. The job of sentencing is one of the most important and difficult jobs of a United
States District Court Judge. When sentencing a defendant, I would first review and
apply applicable procedure, rules, and precedent regarding sentencing from the
United States Supreme Court and the Eighth Circuit Court of Appeals. I would then
review the charging documents, the presentence report, any victim impact statements,
any statements by the defendant’s family or friends, arguments of counsel for both
sides, the statements of the defendant, and any other relevant or required
documentation the parties would bring to my attention. I would then carefully
consider the individual factors enumerated in 18 U.S.C. § 3553(a), and calculate the
proper sentence range as outlined in the Sentencing Guidelines. I would then
determine whether there was any basis for a departure from the Sentencing
Guidelines range.
b. As a new judge, how do you plan to determine what constitutes a fair and
proportional sentence?
Please refer to my answer to question 6(a) above. In addition, I would review
publications of the United States Sentencing Commission, as well as sentencing
decisions rendered by the United States Supreme Court, the Eighth Circuit Court of
appeals, and other information provided by the United States Judiciary.
c. When is it appropriate to depart from the Sentencing Guidelines?
The United States Supreme Court has held that the Sentencing Guidelines are not
binding on trial judges, but rather are advisory. See United States v. Booker, 543 U.S.
220, 246 (2005). The Sentencing Guidelines provide guidance as to when a judge
may depart from the advisory Sentencing Guidelines range. Case law interpreting 18
U.S.C. § 3553(a) further includes factors and considerations that I would consider
before departing from the Sentencing Guidelines.
d. Judge Danny Reeves of the Eastern District of Kentucky—who also serves on the
U.S. Sentencing Commission—has stated that he believes mandatory minimum
sentences are more likely to deter certain types of crime than discretionary or
indeterminate sentencing. 3
i. Do you agree with Judge Reeves?
I am not familiar with Judge Reeves’ views as to mandatory minimum
sentences and deterrence.
ii. Do you believe that mandatory minimum sentences have provided for
a more equitable criminal justice system?
3

https://www.judiciary.senate.gov/imo/media/doc/Reeves%20Responses%20to%20QFRs1.pdf

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 The question as to the equity of mandatory minimum sentences is properly
addressed by the legislative branch of government. As a nominee for the
United States District Court for the District of Nebraska, it would be
inappropriate for me to comment on the policy decisions of Congress on this
issue. See Canons 2, 3(a), and 5 of the Code of Conduct for United States
Judges. If confirmed, I am obliged to follow the law on mandatory
minimum sentences.
iii. Please identify instances where you thought a mandatory minimum
sentence was unjustly applied to a defendant.
Please see my answers to Question 6(d)(i) and (ii) above.
iv. Former-Judge John Gleeson has criticized mandatory minimums in
various opinions he has authored, and has taken proactive efforts to
remedy unjust sentences that result from mandatory minimums. 4 If
confirmed, and you are required to impose an unjust and
disproportionate sentence, would you commit to taking proactive
efforts to address the injustice, including:
1. Describing the injustice in your opinions?
If confirmed, I would faithfully apply all mandatory minimum
sentences to the extent that the statute requiring such sentence is
constitutional. I would also plan to outline in writing or on the record
reasons for the imposition of a particular sentence and any comments I
have to such sentence in circumstances I deemed warranted, and to the
extent required by applicable law.
2. Reaching out to the U.S. Attorney and other federal
prosecutors to discuss their charging policies?
Pursuant to the United States Constitution and applicable law,
charging decisions are left to the Executive Branch. Federal Judges
are required to impose all mandatory minimum sentences if
constitutional. I would raise charging decisions made by Federal
prosecutors in appropriate situations as permitted by law and
consistent with the Code of Conduct for United States Judges.
3. Reaching out to the U.S. Attorney and other federal
prosecutors to discuss considerations of clemency?

See, e.g., “Citing Fairness, U.S. Judge Acts to Undo a Sentence He Was Forced to Impose,” New York Times, July
28, 2014, https://www.nytimes.com/2014/07/29/nyregion/brooklyn-judge-acts-to-undo-long-sentence-for-francoisholloway-he-had-to-impose.html
4

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 The United States Constitution leaves questions of clemency to the executive branch.
If confirmed, I do not believe it would be appropriate to get involved in the clemency
process.
e. 28 U.S.C. Section 994(j) directs that alternatives to incarceration are “generally
appropriate for first offenders not convicted of a violent or otherwise serious
offense.” If confirmed as a judge, would you commit to taking into account
alternatives to incarceration?
Yes.

7. Judges are one of the cornerstones of our justice system. If confirmed, you will be in a
position to decide whether individuals receive fairness, justice, and due process.

a. Does a judge have a role in ensuring that our justice system is a fair and
equitable one?
Yes.
b. Do you believe there are racial disparities in our criminal justice system? If
so, please provide specific examples. If not, please explain why not.
I am aware that there exist statistics that demonstrate that certain racial minorities
comprise a higher percentage of incarcerated individuals than they do in the
population generally.

8. If confirmed as a federal judge, you will be in a position to hire staff and law clerks.
a. Do you believe it is important to have a diverse staff and law clerks?
Yes.
b. Would you commit to executing a plan to ensure that qualified minorities
and women are given serious consideration for positions of power and/or
supervisory positions?
If confirmed, I would ensure that qualified minorities and women are given serious
consideration for all positions that I am in a position to hire.

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