Nomination of Dani “Danielle” Jo Hunsaker to the U.S. Court of Appeals for the Ninth Circuit
Questions for the Record
Submitted October 2, 2019
QUESTIONS FROM SENATOR FEINSTEIN
1. According to your SJQ and a review of your court filings available on electronic databases,
you have represented numerous financial institutions against claims that the institutions
violated the Fair Credit Reporting Act, state mortgage laws, and other statutes.
Have you ever represented an individual plaintiff in an action against a financial
institution? If so, please provide the name of the case, detail the nature of your
representation, and provide information on the disposition of the case.
To the best of my recollection, I have not represented individuals in litigation against
financial institutions. I have represented individuals against public and private organizations
and against other individuals in numerous cases involving civil rights, real property, and
business governance and torts.
2. 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 never appropriate for a lower court to depart from Supreme Court precedent.
b. Do you believe it is proper for a circuit court judge to question Supreme Court
precedent in a concurring opinion? What about a dissent?
All lower court judges are obligated to apply binding precedent, but they are not
prohibited from criticizing it. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.
2001). That said, I believe that a judge should criticize precedent only for a
compelling reason so as not to undermine the integrity and legitimacy of the
judiciary.
c. When, in your view, is it appropriate for a circuit court to overturn its own
precedent?
The Ninth Circuit can overturn one of its prior decisions when sitting en banc, In re
Complaint of Ross Is. Sand & Gravel, 226 F.3d 1015, 1018 (9th Cir. 2000), or
through a three-judge panel if an “intervening Supreme Court decision undermines”
the prior decision, Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003). Absent these
limited circumstances, the precedential decisions of the Ninth Circuit are binding on
the court.

 d. When, in your view, is it appropriate for the Supreme Court to overturn its own
precedent?
The Supreme Court has the authority to overrule its own decisions. Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). As a lower
court nominee it is not my place to comment on how the Supreme Court should
decide its cases or apply the principle of stare decisis. I am aware that the Supreme
Court generally is reluctant to overrule its prior decisions absent “special
justification.” See Gamble v. U.S., 139 S. Ct. 1960, 1969 (2019); see also Rodriguez
de Quijas, 490 U.S. at 484.
3. When Chief Justice Roberts was before the Committee for his nomination, Senator Specter
referred to the history and precedent of the Roe case law as “super-stare decisis.” One text
book on the law of judicial precedent, co-authored by Justice 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”? “superprecedent”?
Roe v. Wade is binding Supreme Court precedent that all lower courts are bound to
faithfully apply. Lower courts are bound to apply all Supreme Court precedent
regardless of whether it is referred to as “super-stare decisis” or “superprecedent.”
b. Is it settled law?
Roe v. Wade has been affirmed by the Supreme Court numerous times. It is binding
precedent that I will faithfully apply if confirmed.
4. In Obergefell v. Hodges, the Supreme Court held that the Constitution guarantees same-sex
couples the right to marry. Is the holding in Obergefell settled law?
Obergerfell is binding Supreme Court precedent that I will faithfully apply if confirmed.
5. From 2013 to 2015, you were a member of the Oregon State Bar’s Judicial Administration
Committee. As part of your Senate Judiciary Questionnaire (SJQ), you provided minutes
from several of the Committee’s meetings that you attended. According to minutes from the
September 17, 2015 meeting, you discussed “recent items in the news related to OJD [the
Oregon Judicial Department]: Judge Day in Salem and refusal to perform civil marriages on
religious objections and another judge in Washington County who may be taking a similar
position—question re: impact on issues of impartiality—matters are taken up in the
Commission on Judicial Fitness—complaints and process is not open to the public unless a

 decision is made to hold a public hearing. Public may get interested in this in the future.”
(Minutes of Oregon State Bar Judicial Administration Committee Meeting (Sept. 17, 2015))
a. In this meeting, did you express an opinion as to the propriety of a state court
judge refusing “to perform civil marriages on religious objections”? If so, what
was that opinion?
No.
b. Regardless of whether you expressed an opinion at the time of the meeting, is it
appropriate for state officials—whether judges, clerks, or others—to refuse to
perform civil marriages on the basis of religious objections?
Judges are obligated to perform their duties consistent with the law and the Code of
Judicial Conduct. The Oregon Supreme Court issued a decision in the case discussed
in the Oregon State Bar Judicial Administration Committee meeting referenced above
holding that a judge violates Rule 3.3 of the Oregon Code of Judicial Conduct if the
judge agrees to perform marriages but declines to perform same-sex marriages.
Inquiry Concerning a Judge re: The Honorable Vance D. Day, 362 Or 547 (2018). If
confirmed, I will apply binding Supreme Court and Ninth Circuit precedent
addressing these issues. As a sitting judge and judicial nominee, it is inappropriate for
me to comment further on this issue, which is likely to be the subject of pending or
impending litigation.
6. According to the June 11, 2015 meeting minutes, which you also provided as part of your
SJQ, you were at that time “working on a presentation for conference for court judges (state
and federal)” that would “includ[e] a presentation on the neuroscience and implicit bias in
decision-making.” (Minutes of Oregon State Bar Judicial Administration Committee
Meeting (June 11, 2015))
a. In this meeting, did you express an opinion as to whether implicit bias—racial or
otherwise—impacts judicial decision-making? If so, what was that opinion?
I did not express an opinion on the impact of implicit bias at this meeting. I informed
the committee that an upcoming federal court event that I was helping to plan would
include an implicit bias training session to which all Oregon federal and state court
judges were invited to attend.
b. Regardless of whether you expressed an opinion at the time of the meeting, do
you believe now that implicit bias affects judicial decision-making?
Scientific research has shown that implicit bias can impact a person’s
decisionmaking, including decisionmaking by judges.
7. 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?
Heller is binding Supreme Court precedent that I will faithfully apply if confirmed. It
is inappropriate for me to express an opinion about the Court’s decision or any
dissenting opinion in this case.
b. Did Heller leave room for common-sense gun regulation?
The Supreme Court’s decision in Heller explained that “nothing in this opinion
should be taken to cast doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms.” 554 U.S. 570, 626-27
(2008).
c. Did Heller, in finding an individual right to bear arms, depart from decades of
Supreme Court precedent?
It is inappropriate for me to express an opinion about the Heller decision or the
Supreme Court’s reasoning in that case.
8. 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 Supreme Court held that “First Amendment protection extends to corporations.”
Citizens United v. Fed. Elections Comm’n, 558 U.S. 310, 342 (2010). It is
inappropriate for me to express an opinion about this case. Citizens United is binding
precedent that I will apply, if confirmed.
b. Do individuals have a First Amendment interest in not having their individual
speech drowned out by wealthy corporations?
See response to Question 8(a).

 c. Do you believe corporations also have a right to freedom of religion under the
First Amendment?
The Supreme Court has held that the Religious Freedom Restoration Act applies to
closely-held corporations. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 707-08
(2014). Hobby Lobby is binding precedent that I will apply, if confirmed. It is
inappropriate for me to comment further on this issue because it could come before
the court in pending or impending litigation. Canon 3(A)(6), Code of Conduct for
United States Judges; Rule 3.3(C), Oregon Code of Judicial Conduct.
9. You indicated on your Senate Questionnaire that you have been a member of the Federalist
Society since 2017 and were previously a member from 2002 to 2006. You also indicated
that you served as the Student Chapter Secretary from 2002 to 2004. 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 Society has created a conservative and libertarian intellectual
network that extends to all levels of the legal community.”
a. Why did you join the Federalist Society in 2002?
I joined the Federalist Society as a law student because I was interested in the discussions
and debates about constitutional law and Supreme Court cases that the Society sponsored.
b. Why did you rejoin the Federalist Society in 2017?
I rejoined the Federalist Society in 2017 because a friend of mine revitalized the Portland,
Oregon chapter after it had been essentially dormant for a significant period.
c. Have you had any contact with anyone at the Federalist Society about your
possible nomination to any federal court?
I have not had contact with anyone at the national Federalist Society organization. I have
spoken to friends within my local chapter in Oregon about my possible nomination to the
federal bench.
d. Did anyone in the Trump Administration indicate to you that membership in the
Federalist Society would impact the chances of being nominated to a federal
judgeship?
No.

 e. 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 am not familiar with this statement, and I do not know what the Federalist Society
meant by it.
f. How exactly does the Federalist Society seek to “reorder priorities within the
legal system”?
I am not familiar with this statement, and I do not know what the Federalist Society
meant by it.
g. What “traditional values” does the Federalist society seek to place a premium
on?
I am not familiar with this statement, and I do not know what the Federalist Society
meant by it.
10. On February 22, 2018, when speaking to the Conservative Political Action Conference
(CPAC), former 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
difference 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?
Not to my recollection. I believe the subject of administrative law may have come up
in my first interview at the White House after I applied for a district court position in
Oregon, but I do not recall what was said.
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?
Not to my recollection.
c. What are your “views on administrative law”?

 I am familiar with the Administrative Procedures Act and Supreme Court precedent
concerning administrative authority, including Auer v. Robbins, 519 U.S. 452 (1997);
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984); and Skidmore v. Swift & Co., 323 U.S. 134 (1944), among others. I will apply
all Supreme Court precedent, if confirmed.
11. Do you believe that human activity is contributing to or causing climate change?
As a sitting judge and a judicial nominee, it is inappropriate for me to comment on this
political issue that is likely to come before the court in pending or impending litigation.
12. When is it appropriate for judges to consider legislative history in construing a statute?
The Supreme Court has held that legislative history should be considered only if the statutory
text itself is ambiguous. Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356,
2364 (2019) (“Even those of us who sometimes consult legislative history will never allow it
to be used to ‘muddy’ the meaning of ‘clear statutory language.’”); Mohamad v. Palestinian
Authority, 566 U.S. 449, 458-59 (2012) (“[R]eliance on legislative history is unnecessary in
light of the statute’s ambiguous language.”) (internal quotation marks and citation omitted).
The Supreme Court has also held that only pre-enactment legislative material may be
considered when determining the meaning of a statute. Bruesewitz v. Wyeth LLC, 562 U.S.
223, 242 (2011).
13. 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 at outside groups — about loyalty to President Trump? If so, please
elaborate.
No.
14. Please describe with particularity the process by which you answered these questions.
After receiving the questions on October 2, 2019, I reviewed the questions, performed
research, and drafted responses. After completing my draft answers, I shared my draft with
the Office of Legal Policy at the Department of Justice, and, after receiving feedback, made
edits that I deemed appropriate. After finalizing my responses, I approved submission of my
responses.

 Written Questions for Danielle Hunsaker
Submitted by Senator Patrick Leahy
October 2, 2019
1. You currently serve as a judge on the Washington County Circuit Court, a general
jurisdiction trial court. After graduating law school, you clerked for Judge Paul J. Kelly,
Jr. on the Tenth Circuit.
(a) Aside from your clerkship, what other experience do you have with
appellate litigation?
In 2008, I served as a law clerk to Judge Diarmuid O’Scannlain on the
Ninth Circuit Court of Appeals. As a practicing lawyer, I handled
numerous appeals in federal and state court. I briefed appeals that were
filed in Ninth Circuit Court of Appeals and the courts of appeal in Oregon,
Washington, and Florida. I argued appeals in the Ninth Circuit Court of
Appeals and Oregon Court of Appeals.
(b) What experience do you have in federal court?
In addition to my service as a law clerk at two federal circuit courts and a
federal district court, I handled cases in federal courts during my entire
time as a practicing lawyer. I estimate that during my time in practice,
forty percent of the cases that I handled were filed in federal district or
circuit court. My practice in federal court has included every stage of
litigation from filing the initial complaint, to first-chairing a jury trial, to
briefing and arguing an appeal.
2. Since 2012, you’ve been a member of the J. Reuben Clark Law Society, and you’ve been
on your chapter’s Board since 2015. All Americans, including sitting judges, have the
right to pursue their own religious convictions. But our secular democracy is also rooted
in the notion that church and state must remain separate – and that judges should not
allow religious beliefs to impact their views of the law. The J. Reuben Clark Law
Society’s mission is, in part, to “affirm the strength brought to the law by a lawyer's
personal religious conviction.”
(a) Do you intend to remain a member of this law society? If so, are you
concerned that this membership could create an appearance you’re
your religious views will impact your thinking and decisions as a
judge?
Yes. My experience with the J. Reuben Clark Law Society is that it seeks
to strengthen the legal profession by building professional relationships
within the Society and with other legal organizations and by promoting
professional ethics and excellence and public service. These values benefit
the legal profession regardless of a person’s religious beliefs. As a judge, I

 took an oath to upload the law regardless of my personal views and
beliefs. I believe in the importance of that oath and constantly strive to
uphold it, and if confirmed to the federal bench I would continue to do so.
3. In 2018, the Supreme Court in Carpenter v. United States found that because cell-site
location information (CSLI) “provides an intimate window into a person’s life, revealing
not only his particular movements, but through them his ‘familial, political, professional,
religious, and sexual associations,’” the collection of these records constitutes a search
under the Fourth Amendment and thus is subject to constitutional scrutiny.
(a) Do you agree with this holding that the government needs a warrant
to access a person’s CSLI?
Carpenter is binding Supreme Court precedent that I will apply, if
confirmed. As a sitting judge and judicial nominee it is inappropriate for
me to express my agreement or disagreement with precedent.
(b) Do you believe that the privacy rights recognized by the Court in
Carpenter should also apply to surveillance programs conducted by
the U.S. intelligence community?
It is inappropriate for me to comment on this issue because it is likely to
the be the subject of pending or impending litigation in the federal courts.
(c) Do you believe that Americans have a reasonable expectation of
privacy in their Google searches and web browsing history?
It is inappropriate for me to comment on this issue because it has and is
likely to come before the courts in pending and impending litigation.
(d) Do you believe that there comes a point at which collection of data
about a person becomes so pervasive that a warrant would be
required? Even if collection of one bit of the same data would not?
It is inappropriate for me to comment on this issue because it has and is
likely to come before the courts in pending and impending litigation.
4. In 2016, the Supreme Court in Whole Woman’s Health v. Hellerstedt found that a Texas
law violated the Constitution. Specifically, it held that regulations requiring physicians
who perform abortions to have admitting privileges at a nearby hospital and requiring
abortion clinics in the state to have facilities comparable to an ambulatory surgical center
place a substantial obstacle in the path of women seeking an abortion, and, therefore,
constitute an undue burden on abortion access.
(a) Do you agree with this holding?

 Whole Woman’s Health is binding Supreme Court precedent that I would
faithfully apply if confirmed. As a sitting judge and a judicial nominee, it
is inappropriate for me to opine on the merits of the Supreme Court’s
decision in this case.
(b) Would you have applied this holding to a recent Louisiana law that
also required doctors performing abortions to have admitting
privileges at local hospitals?
Whole Woman’s Health is binding Supreme Court precedent that I will
faithfully apply if confirmed. The Oregon and federal Code of Judicial
Conduct prevent me from giving a general opinion on whether or how this
precedent would apply to any given scenario or case. Moreover, I would
be uncomfortable rendering any such opinion without the benefit of the
adversary process.
(c) Do you think stare decisis dictated the Court’s ruling in June Medical
Services v. Gee to stay the Louisiana law?
I am not familiar with the stay proceedings in this case. Moreover, it
would be inappropriate for me to comment as this case currently is
pending review in the Supreme Court and the matters at issue are likely to
come before the courts in other pending or impending litigation.
5. Chief Justice Roberts wrote in King v. Burwell that “oftentimes the ‘meaning—or
ambiguity—of certain words or phrases may only become evident when placed in context.’
So when deciding whether the language is plain, we must read the words ‘in their context and
with a view to their place in the overall statutory scheme.’ Our duty, after all, is ‘to construe
statutes, not isolated provisions?’”
a) Do you agree with the Chief Justice? Will you adhere to that rule of statutory
interpretation – that is, to examine the entire statute rather than immediately
reaching for a dictionary?
Analyzing the statutory context often is an important factor in interpreting a specific
statutory provision, and it is considered a “fundamental canon of statutory
construction.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000). I will apply this cannon and other accepted cannons of statutory construction,
if confirmed.
6. President Trump has issued several attacks on the independent judiciary. Justice Gorsuch
previously called them “disheartening” and “demoralizing.”

(a) Does that kind of rhetoric from a President – that a judge who rules
against him is a “so-called judge” – erode respect for the rule of law?

 The Constitution establishes the judiciary as an independent third branch of
government with protections, including life tenure, to ensure that federal
judges are not swayed in the performance of their duties by public criticism.
The Constitution also expressly protects the freedom to speak about public
issues.

(b) While anyone can criticize the merits of a court’s decision, do you believe
that it is ever appropriate to criticize the legitimacy of a judge or court?
See answer to Question 6(a).
7. President Trump praised one of his advisers after that adviser stated during a television
interview that “the powers of the president to protect our country are very substantial and will
not be questioned.” (Emphasis added.)

(a) Is there any constitutional provision or Supreme Court precedent
precluding judicial review of national security decisions?
I have not studied this issue previously. I am aware that there is Supreme
Court precedent indicating deference is given to the executive branch in
matters implicating national security, which may narrow the scope of judicial
review depending on the issue presented. See, e.g., Trump v. Hawaii, 138 S.
Ct. 2392 (2018); Winter v. Natural Resources Defense Council, Inc., 555 U.S.
7 (2008); Dep’t of Navy v. Egan, 484 U.S. 518 (1988); Mathews v. Diaz, 426
U.S. 67 (1976).
8. Many are concerned that the White House’s denouncement of “judicial supremacy” was an
attempt to signal that the President can ignore judicial orders. And after the President’s first
attempted Muslim ban, there were reports of Federal officials refusing to comply with court
orders.

(a) If this President or any other executive branch official refuses to comply
with a court order, how should the courts respond?
As a general matter, courts have discretion in determining how to respond
to a litigant’s failure to comply with its orders. It is inappropriate for me to
comment on this issue further because it could come before the courts in
pending or impending litigation.
9. In Hamdan v. Rumsfeld, the Supreme Court recognized that the President “may not disregard
limitations the Congress has, in the proper exercise of its own war powers, placed on his
powers.”
(a) Do you agree that the Constitution provides Congress with its own war
powers and Congress may exercise these powers to restrict the President
– even in a time of war?
The Constitution expressly divides war-related powers between Congress and
the President. See U.S. Const. Art. I, §8(1), (11)-(14), Art. II, § 2. In Hamdi

 v. Rumsfeld, the Supreme Court stated: “We have long since made clear that a
state of war is not a blank check for the President when it comes to the rights
of the Nation’s citizens.” 542 U.S. 507, 536 (2004); see also Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“Even though
‘theater of war’ be an expanding concept, we cannot with faithfulness to our
constitutional system hold that the Commander in Chief of the Armed Forces
has the ultimate power as such to take possession of private property in order
to keep labor disputes from stopping production. This is a job for the Nation's
lawmakers, not for its military authorities.”).

(b) In a time of war, do you believe that the President has a “Commanderin-Chief” override to authorize violations of laws passed by Congress or
to immunize violators from prosecution? Is there any circumstance in
which the President could ignore a statute passed by Congress and
authorize torture or warrantless surveillance?
See response to Question 9(a).
10. How should courts balance the President’s expertise in national security matters
with the judicial branch’s constitutional duty to prevent abuse of power?
In this and every other area of constitutional law, lower courts should faithfully apply the
text and principles established in the Constitution, as interpreted by the Supreme Court. If
confirmed, I will apply the Supreme Court’s separation of powers precedent, including
the precedent referenced in response to Question 7(a). Otherwise, it is inappropriate for
me to comment on this issue as it could come before the courts in pending and impending
litigation.
11. In a 2011 interview, Justice Scalia argued that the Equal Protection Clause does not extend to
women.

(a) Do you agree with that view? Does the Constitution permit
discrimination against women?
The Supreme Court has held that the Equal Protection clause in the
Fourteenth Amendment applies to women. United States v. Virginia, 518 U.S.
515, 532 (1996), This is binding precedent on all lower courts that I will
apply if confirmed.

12. Do you agree with Justice Scalia’s characterization of the Voting Rights Act as a
“perpetuation of racial entitlement?”
I am not familiar with this statement nor is it binding precedent. If confirmed, I will faithfully
apply the Voting Rights Act and any binding Supreme Court precedent interpreting this Act.

13. What does the Constitution say about what a President must do if he or she wishes to
receive a foreign emolument?

 The Emoluments Clause in the Constitution states that “no Person holding any Office of
Profit or Trust under [the United States], shall, without the Consent of the Congress, accept
any present, Emolument, Office, or Title, of an kind whatever, from any King, Prince, or
foreign State.” U.S. Const. Art. I, § 9, cl. 8. The application of this clause is the subject of
pending litigation and it is inappropriate for me to comment on this issue.
14. In Shelby County v. Holder, a narrow majority of the Supreme Court struck down a key
provision of the Voting Rights Act. Soon after, several states rushed to exploit that decision
by enacting laws making it harder for minorities to vote. The need for this law was revealed
through 20 hearings, over 90 witnesses, and more than 15,000 pages of testimony in the
House and Senate Judiciary Committees. We found that barriers to voting persist in our
country. And yet, a divided Supreme Court disregarded Congress’s findings in reaching its
decision. As Justice Ginsburg’s dissent in Shelby County noted, the record supporting the
2006 reauthorization was “extraordinary” and the Court erred “egregiously by overriding
Congress’ decision.”

(a) When is it appropriate for the Supreme Court to substitute its own
factual findings for those made by Congress or the lower courts?
Appellate courts are not factfinders but instead decide cases based on the
factual record developed below.
15. How would you describe Congress’s authority to enact laws to counteract racial
discrimination under the Thirteenth, Fourteenth, and Fifteenth Amendments, which
some scholars have described as our Nation’s “Second Founding”?
The Reconstruction Amendments give Congress the power to counteract racial discrimination
“by appropriate legislation.” U.S. Const., Amend. XIII, § 2; Amend. XIV, § 5; Amend. XV,
§ 2.
16. Justice Kennedy spoke for the Supreme Court in Lawrence v. Texas when he wrote: “liberty
presumes an autonomy of self that includes freedom of thought, belief, expression, and
certain intimate conduct,” and that “in our tradition, the State is not omnipresent in the
home.”

(a) Do you believe the Constitution protects that personal autonomy as a
fundamental right?
Lawrence v. Texas and other Supreme Court cases addressing the right of
personal autonomy are binding precedent that I will apply if confirmed.
17. In the confirmation hearing for Justice Gorsuch, there was extensive discussion of the extent
to which judges and Justices are bound to follow previous court decisions by the doctrine of
stare decisis.

(a) In your opinion, how strongly should judges bind themselves to the
doctrine of stare decisis? Does the commitment to stare decisis vary

 depending on the court? Does the commitment vary depending on
whether the question is one of statutory or constitutional interpretation?
The doctrine of stare decisis is essential to the rule of law and ensuring
stability and predictability within the law. The Supreme Court has held that
there must be a “special justification,” beyond mere disagreement, to justify
overturning a prior authoritative decision. Kimble v. Marvel Entertainment,
LLC, 135 S. Ct. 2401, 2404 (2015).
If confirmed to the Ninth Circuit, I would apply Supreme Court precedent
without reservation and without regard to any independent view I may have
regarding its correctness. If faced with a prior Ninth Circuit decision that I
believed was incorrectly decided, I would apply the precedent in reaching my
decision and then consider whether to write a separate opinion calling for en
banc review for the court to reconsider the issue. See In re Complaint of
Ross Is. Sand & Gravel, 226 F.3d 1015, 1018 (9th Cir. 2000).

18. Generally, federal judges have great discretion when possible conflicts of interest are raised
to make their own decisions whether or not to sit on a case, so it is important that judicial
nominees have a well-thought out view of when recusal is appropriate. Former Chief Justice
Rehnquist made clear on many occasions that he understood that the standard for recusal was
not subjective, but rather objective. It was whether there might be any appearance of
impropriety.
(a) How do you interpret the recusal standard for federal judges, and in
what types of cases do you plan to recuse yourself? I’m interested in
specific examples, not just a statement that you’ll follow applicable law.
A judge must recuse herself where she knows her impartiality is
compromised and where her impartiality “might reasonably be questioned.”
28 U.S.C. § 455(a); Canon 3(C)(1), Code of Judicial Conduct for United
States Judges. In my view, this is a subjective and objective standard and both
aspects must be met for every case.
I will follow the statutory and ethical rules that apply to recusal if confirmed.
I will recuse myself from any case involving a matter that I was involved with
as a practicing lawyer or that involves a litigant or attorney which I have or
had a business or personal relationship that undermines my ability to be
impartial or the perception of my impartiality. For example, I will recuse
myself from any case handled by an attorney that I worked with at my former
firm where I was a partner. I will also recuse myself from any case in which
an organization of which I am a member is a litigant. This is not an
exhaustive list.
19. It is important for me to try to determine for any judicial nominee whether he or she has a
sufficient understanding the role of the courts and their responsibility to protect the
constitutional rights of individuals, especially the less powerful and especially where the
political system has not. The Supreme Court defined the special role for the courts in

 stepping in where the political process fails to police itself in the famous footnote 4 in United
States v. Carolene Products. In that footnote, the Supreme Court held that “legislation which
restricts those political processes which can ordinarily be expected to bring about repeal of
undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general
prohibitions of the Fourteenth Amendment than are most other types of legislation.”
(a) Can you discuss the importance of the courts’ responsibility under the
Carolene Products footnote to intervene to ensure that all citizens have
fair and effective representation and the consequences that would result
if it failed to do so?
In the referenced footnote, the Supreme Court indicated that courts have a
role in ensuring that democratic processes are open and work as intended and
legislation does not undermine participation by citizens entitled to
representation. The Supreme Court also introduced the idea of varied levels
of scrutiny in assessing constitutionality depending on the constitutional issue
presented. If confirmed, I will faithfully follow Supreme Court precedent on
this and any other issue.
20. Both Congress and the courts must act as a check on abuses of power. Congressional
oversight serves as a check on the Executive, in cases like Iran-Contra or warrantless spying
on American citizens and politically motivated hiring and firing at the Justice Department
during the Bush administration. It can also serve as a self-check on abuses of Congressional
power. When Congress looks into ethical violations or corruption, including inquiring into
the Trump administration’s conflicts of interest and the events discussed in the Mueller report
we make sure that we exercise our own power properly.
(a) Do you agree that Congressional oversight is an important means for
creating accountability in all branches of government?

Yes.
21. Do you believe there are any discernible limits on a president’s pardon power? For
example, President Trump claims he has an “absolute right” to pardon himself. Do
you agree?
I have not studied the scope of the presidential pardon power provided in Article II.
22. What is your understanding of the scope of congressional power under Article I of the
Constitution, in particular the Commerce Clause, and under Section 5 of the
Fourteenth Amendment?
The Supreme Court has held that the Commerce Clause gives Congress the power to regulate
activity that “substantially affects” interstate commerce. United States v. Lopez, 514 U.S.
549, 559 (1995). The Supreme Court has further held that Congress has the power to enforce
the Fourteenth Amendment where there is a “congruence between the means used and the
ends to be achieved.” City of Boerne v. Flores, 521 U.S. 507, 519, 530 (1997).

 23. In Trump v. Hawaii, the Supreme Court allowed President Trump’s Muslim ban to go
forward on the grounds that Proclamation No. 9645 was facially neutral and asserted that
the ban was in the national interest. The Court chose to accept the findings of the
Proclamation without question, despite significant evidence that the President’s reason
for the ban was animus towards Muslims. Chief Justice Roberts’ opinion stated that “the
Executive’s evaluation of the underlying facts is entitled to appropriate weight” on issues
of foreign affairs and national security.
(a) What do you believe is the “appropriate weight” that executive factual
findings are entitled to on immigration issues? Does that weight shift
when additional constitutional issues are presented, as in the
Establishment Clause claims of Trump v. Hawaii? Is there any point at
which evidence of unlawful pretext overrides a facially neutral
justification of immigration policy?
Trump v. Hawaii is binding Supreme Court precedent that I will apply if
confirmed. It is inappropriate for me to comment on the merits of that
decision or how it should be applied in circumstances that may come
before the courts in future cases.
24. How would you describe the meaning and extent of the “undue burden” standard
established by Planned Parenthood v. Casey for women seeking to have an abortion?
I am interested in specific examples of what you believe would and would not be an
undue burden on the ability to choose.
The Supreme Court held that an “undue burden” exists where “a state regulation has the
purpose or effect of placing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus.” Planned Parenthood v. Casey, 505 U.S. 833, 877 (1992).
In Whole Woman’s Health v. Hellerstadt, the Court further held that “unnecessary health
regulations that have the purpose or effect of presenting a substantial obstacle to a woman
seeking an abortion impose an undue burden on that right.” 136 S. Ct. 2292, 2309 (2016)
I will apply Casey and all other Supreme Court precedent addressing abortion if
confirmed.
25. Federal courts have used the doctrine of qualified immunity in increasingly broad ways,
shielding police officers in particular whenever possible. In order to even get into court, a
victim of police violence or other official abuse must show that an officer knowingly
violated a clearly established constitutional right as specifically applied to the facts and
that no reasonable officer would have acted that way. Qualified immunity has been used
to protect a social worker who strip searched a four-year-old, a police officer who went to
the wrong house, without even a search warrant for the correct house, and killed the
homeowner, and many similar cases.

 (a) Do you think that the qualified immunity doctrine should be reined
in? Has the “qualified” aspect of this doctrine ceased to have any
practical meaning? Should there be rights without remedies?
The doctrine of qualified immunity has repeatedly been applied by the
Supreme Court. See San Francisco v. Sheehan, 135 S. Ct. 1765, 1774
(2015). I will apply this and all other Supreme Court and Ninth Circuit
precedent if confirmed. It is inappropriate for me to sate a personal
opinion on the merits of this doctrine as this issue routinely comes before
the courts.
26. Earlier this year, President Trump declared a national emergency in order to redirect
funding toward the proposed border wall after Congress appropriated less money than
requested for that purpose. This raised serious separation-of-powers concerns because the
Executive Branch bypassed the congressional approval generally needed for
appropriations. As a member of the Appropriations Committee, I take seriously
Congress’s constitutional duty to decide how the government spends money.
(a) With the understanding that you cannot comment on pending cases,
are there situations when you believe a president can legitimately
allocate funds for a purpose previously rejected by Congress?
I have not studied this issue previously. In any case concerning a conflict
between legislative and executive power, I would apply Supreme Court
precedent regarding the specific powers at issue and the separation of
powers.
27. During Justice Kavanaugh’s confirmation hearing, he used partisan language to align
himself with Senate Republicans. For instance, he accused Senate Democrats of exacting
“revenge on behalf of the Clintons” and warned that “what goes around comes around.”
The judiciary often considers questions that have a profound impact on different political
groups. The Framers sought to address the potential danger of politically-minded judges
making these decisions by including constitutional protections such as judicial
appointments and life terms for Article III judges.
(a) Do you agree that the Constitution contemplates an independent
judiciary? Can you discuss the importance of judges being free from
political influence?
Yes, the Constitution creates an independent judiciary with protections to
insulate judges from political influence. These protections and the
obligation that judges act independently and impartially, without favor to
any interest beyond fair application of the law, are essential to the rule of

 law. If confirmed, I will perform my role with fidelity to the judicial oath
of office and the fundamental values of independence and impartiality.

 Nomination of Danielle J. Hunsaker
to the United States Court of Appeals for the Ninth Circuit
Questions for the Record
Submitted October 2, 2019
QUESTIONS FROM SENATOR WHITEHOUSE
1. Your questionnaire indicates that were a member of the Federalist Society from 2002 to 2005,
and rejoined the organization in 2017.
a. What was your primary motivation for joining the organization in 2002?
I joined the Federalist Society as a law student because I was interested in the discussions and
debates about constitutional law and Supreme Court cases that the Society sponsored.
b. What prompted you to leave the organization in 2006?
I let my membership lapse because I was busy raising two children and I stopped receiving
announcements about the Portland, Oregon chapter events. The chapter also went largely
dormant for several years.
c. What was your primary motivation for rejoining the organization in 2017?
I rejoined the Federalist Society in 2017 because a friend of mine revitalized the Portland,
Oregon chapter after it had been essentially dormant for a significant period.
d. If confirmed, do you plan to remain an active participant in the Federalist Society?
Yes, I plan to continue to participate in my local chapter.
e. If confirmed, do you plan to donate money to the Federalist Society?
I have never paid any money to the Federalist Society other than basic membership dues. I do
not plan to change that if confirmed.
f.

Have you had contacts with representatives of the Federalist Society in preparation for
your confirmation hearing? Please specify.

I have spoken to friends in my local chapter about my confirmation hearing and process. I
have not had any contact with anyone else associated with the Federalist Society.
2. A Washington Post report from May 21, 2019 (“A conservative activist’s behind-the-scenes
campaign to remake the nation’s courts”) documented that Federalist Society Executive Vice
President Leonard Leo raised $250 million, much of it contributed anonymously, to influence the
selection and confirmation of judges to the U.S. Supreme Court, lower federal courts, and state
courts. If you haven’t already read that story and listened to recording of Mr. Leo published by
the Washington Post, I request that you do so in order to fully respond to the following
questions.
a. Have you read the Washington Post story and listened to the associated recordings of Mr.
Leo?

 Yes.
b. Do you believe that anonymous or opaque spending related to judicial nominations of the
sort described in that story risk corrupting the integrity of the federal judiciary?
Judicial independence and impartiality are fundamental and essential principles
underlying the American judicial system. Otherwise, it is inappropriate for me to
comment because this is an issue that could come before the courts in pending or
impending litigation.
c. Mr. Leo was recorded as saying: “We’re going to have to understand that judicial
confirmations these days are more like political campaigns.” Is that a view you
share? Do you believe that the judicial selection process would benefit from the same
kinds of spending disclosures that are required for spending on federal elections? If not,
why not?
See response to Question 2(b), immediately above.
d. Do you have any knowledge of Leonard Leo, the Federalist Society, or any of the entities
identified in that story taking a position on, or otherwise advocating for or against, your
judicial nomination? If you do, please describe the circumstances of that advocacy.
I have seen a report published by the Judicial Crisis Network that is supportive of my
nomination. I did not solicit or have any input in that report.
e. As part of this story, the Washington Post published an audio recording of Leonard Leo
stating that he believes we “stand at the threshold of an exciting moment” marked by a
“newfound embrace of limited constitutional government in our country [that hasn’t
happened] since before the New Deal.” Do you share the beliefs espoused by Mr. Leo in
that recording?
I believe that the federal judiciary has a defined role as one of the three branches of
government established by the Constitution. Otherwise, this question poses a political
issue on which it is inappropriate for me to comment.
3. During his confirmation hearing, Chief Justice Roberts likened the judicial role to that of a
baseball umpire, saying “'[m]y job is to call balls and strikes and not to pitch or bat.”
a. Do you agree with Justice Roberts’ metaphor? Why or why not?
To the extent Chief Justice Roberts was using this analogy to indicate that the judge’s
role is to resolve disputes presented by the parties based on the applicable law and not on
the judges’ personal views or preferences, I do agree with this analogy.
b. What role, if any, should the practical consequences of a particular ruling play in a
judge’s rendering of a decision?

Judges should understand the facts and circumstances of the cases brought before
them so that they also understand the impact or consequences of their decisions.

 However, judicial decisions should be dictated by the fair and reasonable
application of governing law, not on a particular outcome.
4. Federal Rule of Civil Procedure 56 provides that a court “shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact” in a case. Do you agree
that determining whether there is a “genuine dispute as to any material fact” in a case requires a
trial judge to make a subjective determination?
No. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“[T]he judge must ask
himself not whether he thinks the evidence unmistakably favors one side or the other but whether
a fair-minded jury could return a verdict for the plaintiff on the evidence presented.”).
5. During Justice Sotomayor’s confirmation proceedings, President Obama expressed his view that a
judge benefits from having a sense of empathy, for instance “to recognize what it’s like to be a
young teenage mom, the empathy to understand what it's like to be poor or African-American or
gay or disabled or old.”
a. What role, if any, should empathy play in a judge’s decision-making process?
Taking the time to understand the litigants’ perspectives is an important part of the
judicial process. However, judges are obligated to treat all litigants with fairness and
respect regardless of their circumstances. Judges cannot allow their personal feelings,
preferences, or biases to interfere with a fair and impartial application of the law.
b. What role, if any, should a judge’s personal life experience play in his or her decisionmaking process?
A judge’s life experience should not play a determinative role in the decision-making
process because cases must be decided based only on the governing law. However, a
judges’ life experiences can play a role in helping to understand the facts presented in a
case. For example, a judge who has used a cell phone likely will understand the facts of a
case involving a cell phone quicker or more easily than a judge that has not used a cell
phone.
6. In her recent book, The Chief, Supreme Court reporter Joan Biskupic documents the Court’s
decision-making process in NFIB v. Sebelius, the landmark case concerning the constitutionality
of the Affordable Care Act’s individual mandate and Medicaid expansion plan. Biksupic
reported that the final votes, 5-4 to uphold the individual mandate as a valid exercise of the taxing
clause, and 7-2 to curtail the Medicaid plan, “came after weeks of negotiations and trade-offs
among the justices.”
a. In your view, what is the role of negotiating with other judges when deliberating on a
case?
Appellate judges must discuss, and even debate, the legal issues presented in a case as
part of the decision-making process as they reach agreement on the decision and the
reasoning of the decision. These discussions must focus on governing law, including
precedent, and not on outside considerations. Through this process, the panel members
identify which judge will author the opinion for the court and whether any panel member
will write a concurring or dissenting opinion.

 b. As a judge, under what circumstances would you consider conditioning your vote in one
case or on one issue in a case on your vote, or the vote of a colleague’s, in another?
Every case must be decided on its own merits. I would not condition or trade my vote in
one case based on the outcome of any other case.
c. Are there aspects or principles of your judicial philosophy that you consider nonnegotiable? For example, if you consider yourself an originalist are there circumstances
in which you might stray from the result dictated by that philosophy?
My judicial philosophy includes respect for stare decisis, and, if confirmed, I would view
my obligation to apply binding precedent from the Supreme Court and the Ninth Circuit
as non-negotiable.
7. In your view, is it ever appropriate for a judge to ignore, disregard, refuse to implement, or issue
an order that is contrary to an order from a superior court?
No.
8. The Seventh Amendment ensures the right to a jury “in suits at common law.”
a. What role does the jury play in our constitutional system?
The right to jury trial is a bedrock principle in the American judicial system. The
Declaration of Independence listed denial of the right to jury trial as one of the grievances
against England that justified separation, and the Constitution enshrines the right to jury
trial in both criminal and civil cases. U.S. Const. Amend. V, VI, VII. The role of the jury
is to decide the facts of the case and, in so doing, serve as a check on the power of
government.
b. Should the Seventh Amendment be a concern to judges when adjudicating issues related
to the enforceability of mandatory pre-dispute arbitration clauses?
Preservation of the right to jury as provided under the Constitution should always be a
concern for the courts. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 501 (1959)
(“Maintenance of the jury as a fact-finding body is of such importance and occupies so
firm a place in our history and jurisprudence that any seeming curtailment of the right to
a jury should be scrutinized with the utmost care.”). I will apply Supreme Court and
Ninth Circuit precedent regarding the scope of the Seventh Amendment right to a jury if
confirmed.
c. Should an individual’s Seventh Amendment rights be a concern to judges when
adjudicating issues surrounding the scope and application of the Federal Arbitration Act?
See response to Question 8(b).
9. What do you believe is the proper role of an appellate court with respect to fact-finding?
Generally, federal appellate courts are not fact-finding bodies and are bound by the factual record
developed in trial courts or administrative proceedings. Icicle Seafoods, Inc. v. Worthington, 475
U.S. 709, 714 (1986).

 10. Do you believe fact-finding, if done by appellate courts, has the potential to undermine the
adversarial process?
Yes.
11. What deference do congressional fact-findings merit when they support legislation expanding or
limiting individual rights?
The Supreme Court has addressed this issue in Whole Woman’s Health v. Hellerstedt and other
cases. In Whole Woman’s Health, the Court held that courts “must review legislative ‘factfinding
under a deferential standard’” but not give them “‘dispositive weight.’” 136 S. Ct. 2292, 2310
(2016). I will apply this and all other Supreme Court and Ninth Circuit precedent addressing this
issue if confirmed.
12. The Federal Judiciary’s Committee on the Codes of Conduct recently issued “Advisory Opinion
116: Participation in Educational Seminars Sponsored by Research Institutes, Think Tanks,
Associations, Public Interest Groups, or Other Organizations Engaged in Public Policy Debates.”
I request that before you complete these questions you review that Advisory Opinion.
a. Have you read Advisory Opinion #116?
Yes.
b. Prior to participating in any educational seminars covered by that opinion will you
commit to doing the following?
i. Determining whether the seminar or conference specifically targets judges or
judicial employees.
ii. Determining whether the seminar is supported by private or otherwise
anonymous sources.
iii. Determining whether any of the funding sources for the seminar are engaged in
litigation or political advocacy.
iv. Determining whether the seminar targets a narrow audience of incoming or
current judicial employees or judges.
v. Determining whether the seminar is viewpoint-specific training program that will
only benefit a specific constituency, as opposed to the legal system as a whole.
If confirmed, I commit to comply with the Code of Judicial Conduct, including the
obligation to avoid impropriety or the appearance of impropriety. I will evaluate my
participation in any activity to ensure compliance with my ethical and legal obligations. If
I have any question about whether an activity complies with the Code of Judicial Conduct
I will consult with the ethics attorneys at the Administrative Office of the U.S. Courts.
c. Do you commit to not participate in any educational program that might cause a neutral
observer to question whether the sponsoring organization is trying to gain influence with
participating judges?
See response to Question 12(b).

 Questions for Judge Danielle Hunsaker, Nominee to the Ninth Circuit Court of Appeals
During your hearing, you said that you consider yourself to be a textualist and believe it is
important to “stick with what our understanding was of the formation of our government when
we started.” In McCulloch v. Maryland, Justice Marshall argued that the Founders could not
have anticipated every possibility, or “exigency,” when they drafted the Constitution, and that
the Founders must have intended our Constitution “to endure for ages to come, and
consequently, to be adapted to the various crises of human affairs.”
• What is your perspective on the point that Justice Marshall made in McCulloch?
In McCulloch v. Maryland, Justice Marshall discussed at length the uniqueness of the
Constitution—a charter document—that by its nature establishes “great outlines” of government
structure and power but does not “contain an accurate detail of all the subdivisions of which its
great powers will admit, and all of the means by which they may be carried into execution.” 17
U.S. 316, 407 (1819). The issue in McCulloch was whether the federal government could
establish a national bank. Recognizing the Constitution does not include an express banking
power, the Court noted that numerous other express powers, including “to lay and collect taxes;
to borrow money; to regulate commerce; to declare and conduct a war’ and to raise and support
armies and navies,” were served by having a national bank. Id. at 407-08. Ultimately, the Court
held that the Necessary and Proper Clause gives Congress the power to select the means for
performing its express powers regardless of whether those means are expressed in the
Constitution. The Court further explained: “This provision is made in a constitution, intended to
endure for ages to come, and consequently, to be adapted to the various crises of human affairs.
To have prescribed the means by which government should, in all future time, execute its
powers, would have been to change, entirely, the character of the [Constitution], and give it the
properties of a legal code.” Id. at 415.
In this passage, Justice Marshall is explaining the unique character and function of the
Constitution and interpreting it as having built in flexibility through the Necessary and Proper
Clause for Congress to respond to changing circumstance in how it chooses to perform its
constitutional duties. The McCulloch decision also demonstrates, however, that the “great
outlines” or foundational principles established in the Constitution do not themselves change as a
result of changing circumstances.

 Nomination of Danielle J. Hunsaker, to be United States Circuit Judge
for the Ninth Circuit
Questions for the Record
Submitted October 2, 2019
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?
I would apply the principles developed by the Supreme Court for evaluating whether a
right is fundamental. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925); Griswold
v. Connecticut, 381 U.S. 479 (1965); Washington v. Glucksberg, 521 U.S. 702 (1997);
Obergefell v. Hodges, 135 S. Ct. 2071 (2015).
a. Would you consider whether the right is expressly enumerated in the Constitution?
Yes, a right expressly stated in the Constitution is protected from federal interference
by the clause enumerating the right and may be protected from state interference
under the Supreme Court’s Fourteenth Amendment incorporation doctrine.
McDonald v. City of Chicago, 561 U.S. 742 (2010). I would apply all precedent
relevant to the right at issue.
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. In Glucksberg, the Supreme Court held that fundamental rights are those rights
that are “deeply rooted in this Nation’s history and tradition.” I would apply this
precedent and consider the sources relied on by the Supreme Court.
c. Would you consider whether the right has previously been recognized by Supreme
Court or circuit precedent? What about the precedent of another court of appeals?
I would apply binding precedent from the Supreme Court and Ninth Circuit regarding
the right at issue. I would also evaluate decisions from other circuits, and even district
courts, for their persuasive value. See Hart v. Massanari, 266 F.3d 1155, 1170
(2001).
d. Would you consider whether a similar right has previously 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

1

 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).
Yes, I would be bound by the Supreme Court’s decisions in Casey and Lawrence.
f. What other factors would you consider?
I would consider all factors recognized by the Supreme Court and Ninth Circuit
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 Supreme Court has held that the Fourteenth Amendment’s Equal Protection Clause
applies to gender as well as race. United States v. Virginia, 518 U.S. 515, 532 (1996).
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?
If confirmed, I will apply Supreme Court precedent. Arguments that are contrary to
binding precedent will not dictate my decisions.
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?
Because the judiciary’s role is to interpret and apply existing law, judicial decisions
are considered “an expression of pre-existing law.” Kaiser Aluminum & Chem. Corp.
v. Bonjorno, 494 U.S. 827, 847 (1990). I do not know why this issue was not resolved
until United States v. Virginia.
c. Does the Fourteenth Amendment require that states treat gay and lesbian couples the
same as heterosexual couples? Why or why not?
In Obergerfell v. Hodges, the Supreme Court held that same-sex couples have a right
to marry “on the same terms” as opposite sex couples. 135 S.Ct. 2584, 2607 (2015). I
will faithfully apply Obergerfell and all other relevant binding precedent.
d. Does the Fourteenth Amendment require that states treat transgender people the same
as those who are not transgender? Why or why not?
Equal treatment under the law is a fundamental principle of our judicial system. As a

2

 sitting judge and a judicial nominee, I cannot comment further on this issue because it
is the subject of pending or impending litigation. Canon 3(A)(6), Code of Conduct for
United States Judges; Rule 3.3(C), Oregon Code of Judicial Conduct.
3. Do you agree that there is a constitutional right to privacy that protects a woman’s right
to use contraceptives?
The Supreme Court has recognized this right in Griswold v. Connecticut, 381 U.S. 479
(1965), and Eisenstadt v. Baird, 405 U.S. 438 (1972). If confirmed, I will faithfully apply
this precedent.
a. Do you agree that there is a constitutional right to privacy that protects a woman’s
right to obtain an abortion?
The Supreme Court has recognized this right in Roe v. Wade, 410 U.S. 113 (1973)
and its progeny. If confirmed, I will faithfully apply this precedent.
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?
The Supreme Court has recognized this right in Lawrence v. Texas, 539 U.S. 558
(2003). If confirmed, I will faithfully apply this precedent.
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.
See responses to Questions 3, 3(a), and 3(b), 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 for judges to consider evidence that sheds light on our
changing understanding of society?
The Supreme Court has held that societal changes can be relevant to a court’s analysis
in numerous contexts. If confirmed, I will follow the Supreme Court’s holdings on
this issue, including Virginia and Obergefell.

3

 b. What is the role of sociology, scientific evidence, and data in judicial analysis?
The types of information described may be considered when consistent with the
Federal Rules of Evidence; Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993);
and other controlling precedent. I would apply governing Supreme Court and Ninth
Circuit precedent in determining what role these types of information should have in
specific cases.
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?
I agree that the Supreme Court has held that same-sex couples have a right of privacy,
Lawrence v. Texas, 539 U.S. 558 (2003), and a right to marry, Obergefell v. Hodges,
135 S. Ct. 2584 (2015), and that the Supreme Court has instructed that “[o]ur society
has come to the recognition that gay persons and gay couples cannot be treated as
social outcasts or as inferior in dignity and worth,” Masterpiece Cakeshop, Ltd. v.
Colo. Civil Rights Commission, 138 S. Ct. 1719, 1727 (2018). If confirmed, I will
faithfully apply these and other relevant Supreme Court and Ninth Circuit precedent.
b. When is it appropriate to apply Justice Kennedy’s formulation of substantive due
process?
As discussed in response to Question 1 and its subparts, the Supreme Court has
developed several factors or considerations under its substantive due process doctrine.
If confirmed, I will faithfully apply all binding Supreme Court and Ninth Circuit
precedent related to this doctrine.
6. You are a member of the Federalist Society, a group whose members often advocate an
“originalist” interpretation of the Constitution. 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.
a. Do you consider Brown to be consistent with originalism even though the Court in

4

 Brown explicitly rejected the notion that the original meaning of the Fourteenth
Amendment was dispositive or even conclusively supportive?
As I testified at my hearing, I believe that Brown v. Board of Education was correctly
decided and holds a unique place in American jurisprudence. As a lower court
nominee, I would be bound by the Supreme Court’s decision regardless of whether it
is consistent with originalist philosophy. That said, originalism, or the search for
original meaning, is focused on the public understanding of law at the time of
enactment, not the subjective intent of the lawmakers. The Brown court recognized
that “[i]n its first cases . . . construing the Fourteenth Amendment, decided shortly
after its adoption, the Court interpreted it as proscribing all state-imposed
discriminations” against African Americans. 347 U.S. 483, 490 (1954).
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/whitepapers/democratic-constitutionalism (last visited Oct. 2, 2019).
Determining the original public meaning of constitutional language can be a difficult
inquiry, but that does not undermine the validity of the effort or of the originalist
philosophy. However, if confirmed, my duty as a lower court judge will be to
faithfully apply Supreme Court and Ninth Circuit precedent interpreting these
foundational principles regardless of the judicial philosophy utilized in those
precedents.
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?
The Supreme Court’s prevailing view of the Constitution is always dispositive. I will
apply Supreme Court and Ninth Circuit precedent regardless of the judicial
philosophy utilized in those precedents.
d. Does the public’s original understanding of the scope of a constitutional provision
constrain its application decades later?
Yes, if dictated by Supreme Court precedent. See, e.g., District of Columbia v. Heller,
554 U.S. 570 (2008).
e. What sources would you employ to discern the contours of a constitutional provision?
I would follow Supreme Court and Ninth Circuit precedent regarding what sources
are properly considered in applying constitutional provisions in cases brought before
the court.

5

 Questions for the Record for Danielle Jo Hunsaker
From Senator Mazie K. Hirono
1. As part of my responsibility as a member of the Senate Judiciary Committee and to ensure
the fitness of nominees, I am asking nominees to answer the following two questions:
a. Since you became a legal adult, have you ever made unwanted requests for sexual
favors, or committed any verbal or physical harassment or assault of a sexual
nature?
No.
b. Have you ever faced discipline, or entered into a settlement related to this kind of
conduct?
No.
2. Prior nominees before the Committee have spoken about the importance of training to help
judges identify their implicit biases.
a. Do you agree that training on implicit bias is important for judges to have?
Judges are ethically and morally bound to decide cases without regard to bias, prejudice,
or preference. I agree that training to help judges understand and fulfill this obligation is
important.
b. Have you ever taken such training?
I helped plan and facilitate an implicit bias training that was presented to Oregon state
and federal judges and lawyers in my role as a Ninth Circuit Attorney Representative. I
attended in part of this training but was unable to participate fully because of my
responsibilities planning and facilitating the event.
c. If confirmed, do you commit to taking training on implicit bias?
If confirmed, I will participate in any training opportunities offered to assist me in
learning my role and performing it to the best of my ability.
3. When a Senator asks about a nominee’s personal views on a topic, about their involvement in
certain organizations or their decisions to advocate for certain points of view, they tell us that
those parts of their records do not matter, that as judges they will simply “follow the law.”
Cases, however, are so infrequently decided by the direct application of legal precedent that
at some point, as one nominee told us, “judging kicks in.”
a. Do you acknowledge that there will be times on the bench, that a judge does bring
personal experiences and views to bear on their decisions?

 It cannot be denied that judges bring their experience and judicial philosophy to bear on
their work, but they are obligated to decide cases based on the law enacted by the
political branches, regardless of their personal preferences or views about the law. If
confirmed, I will faithfully apply the law to the best of my ability without regard to any
personal policy preferences as I do now as a state court trial judge.
b. What do you view as the work of “judging”? If cases were as easy and clear-cut as
simply “following the law,” why would we need judges at all?
The work of judging is to analyze and interpret the law enacted by the political branches
and faithfully apply binding precedent to specific cases and controversies presented by
the litigants. This work requires the exercise of reason and judgment because enacted law
and precedent can be ambiguous and often does not expressly address the specific
circumstances or problem presented to the court. It is the judge’s role to analyze the
governing law, come to a reasonable interpretation of that law, and then fairly apply it to
the case presented.
4. Why do you want to be a federal judge? What in your personal or professional
background has most motivated you to want to serve?
Serving as a judge is incredibility humbling and rewarding because, in simple terms, a
judge’s job is to help litigants solve difficult problems. I believe that the rule of law depends
on our justice system and its foundational principles of fairness, equal treatment under the
law, and due process. I have seen the essential role our system and these values have in our
society serving the federal judiciary as a law clerk, representing clients as a practicing
attorney, and sitting as a state court judge. If confirmed, it would be an incredible privilege to
uphold the Constitution and the laws of this nation by serving on the federal bench.
5. What do you believe is the fundamental role of a federal judge?
The fundamental role of any judges is to protect the rule of law by ensuring a fair and just
application of the law to the specific cases brought before the court.

 Nomination of Danielle Hunsaker
United States Court of Appeals for the Ninth Circuit
Questions for the Record
Submitted October 2, 2019
QUESTIONS FROM SENATOR BOOKER
1. The Eighth Amendment protects the American people against the imposition of “cruel
and unusual punishments.”1 Many scholars and judges have argued that “the death
penalty is in all circumstances [a] cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments.”2 Your published work on capital punishment suggests that
you have studied the issue of capital punishment in some detail.3
a. In your article, did you express any position on whether your support or oppose
the death penalty? If so, what was your position?
No, I did not express an opinion on the death penalty. The purpose of my article was
to analyze the Supreme Court’s decisions leading up to and including Ring v. Arizona
and Idaho’s statutory response to Ring.

b. While conducting research, did you formulate a position on whether the
imposition of capital punishment is a violation of the Eight Amendment? If so,
what was that position?
No, that was not the focus of my article or the research that I did.
2. From 2013 to 2015, you served on the Judicial Administration Committee of the Oregon
State Bar. According to your Senate Judiciary Questionnaire (SJQ), you submitted the
minutes from the Committee’s September 17, 2015, meeting indicating that the
Committee discussed a judge’s refusal to perform civil marriages due to religious
objections.4
a. What was said at that meeting regarding the judge’s refusal to perform civil
marriages?
I do not remember this specific meeting. Based on a review of the meeting
minutes and my general recollection of this topic, I believe the issue was
raised after there were news stories about an Oregon judge declining to
perform same-sex weddings following recognition of same-sex marriage
under Oregon law. Complaints were made against the judge, and the
committee had questions about the nature of the complaints and the
process for addressing those complaints. An Oregon State Bar staff person
routinely attended the committee meetings and served as a liaison between
the committee and the Bar. She answered the committee’s questions about
this issue.
b. Did you take any position on the judge’s refusal to perform civil marriages? If so,
what was your position?
1

 No.
3. You were a member of the Federalist Society from 2002 to 2006 and rejoined the
organization in 2017.5
a. Why did you join the Federalist Society in 2002?
I joined the Federalist Society as a law student because I was interested in the
discussions and debates about constitutional law and Supreme Court cases that the
Society sponsored.
i. What did you know about the organization when you first joined?
I knew that the Federalist Society sponsored events and debates
concerning constitutional law issues and Supreme Court cases and helped
local chapters present national experts to speak about these issues. I also
knew that Federalist Society members often hold conservative or
libertarian views.
b. Why did you leave the organization in 2006?
I let my membership lapse because I was busy raising two children and I stopped
receiving announcements about the Portland, Oregon chapter events. The chapter
was also largely dormant for several years.
U.S. Const. amend. XIII.
Coker v. Georgia, 433 U.S. 584, 600 (1977) (Brennan, J., concurring).
3
See Danielle Hunsaker, The Right to A Jury "Has Never Been Efficient; but It Has Always Been Free": Idaho
Capital Juries After Ring v. Arizona., 39 Idaho L. Rev. 649 (2003) (SJQ Attachment 12(a) at pp. 90-103).
4
Minutes of Oregon State Bar Judicial Administration Committee Meeting (Sept. 17, 2015) (SJQ Attachment 12(c)
at pp. 219-220).
5
SJQ at p. 6.
1
2

2

 c. Why did you rejoin the Federalist Society in 2017?
I rejoined the Federalist Society in 2017 because a friend of mine revitalized the
Portland, Oregon chapter after it had been essentially dormant for a significant
period.
i. Did you decision to rejoin the Federalist Society have anything to do with
your interest in serving as a federal judge? Please explain.
No.
4. Do you consider yourself an originalist? If so, what do you understand originalism to
mean?
Originalism is an interpretive theory that focuses on the words of a legal text and
seeks to apply the public meaning or understanding of those words at the time they
were enacted. I believe originalism is consistent with separation of powers
established in the Constitution and the judiciary’s role to say what the law is.
5. Do you consider yourself a textualist? If so, what do you understand textualism to mean?
Textualism is an interpretative theory similar to originalism that is generally
associated with statutory, as opposed to constitutional, interpretation. Textualism
focuses on the public meaning or understanding of the statutory text when the statute
was enacted. I believe textualism is consistent with separation of powers established
in the Constitution and the judiciary’s role to say what the law is.
6. Legislative history refers to the record Congress produces during the process of passing a
bill into law, such as detailed reports by congressional committees about a pending bill or
statements by key congressional leaders while a law was being drafted. The basic idea is
that by consulting these documents, a judge can get a clearer view about Congress’s
intent. Most federal judges are willing to consider legislative history in analyzing a
statute, and the Supreme Court continues to cite legislative history.
a. If you are confirmed to serve on the federal bench, would you be willing to
consult and cite legislative history?
The Supreme Court has held that legislative history should be considered only if the
statutory text itself is ambiguous. Food Marketing Institute v. Argus Leader Media,
139 S. Ct. 2356, 2364 (2019) (“Even those of us who sometimes consult legislative
history will never allow it to be used to ‘muddy’ the meaning of ‘clear statutory
language.’”); Mohamad v. Palestinian Authority, 566 U.S. 449, 458-59 (2012)
(“[R]eliance on legislative history is unnecessary in light of the statute’s ambiguous
language.”) (internal quotation marks and citation omitted). The Supreme Court has
also held that only pre-enactment legislative material may be considered when
determining the meaning of a statute. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242
(2011).
3

 If confirmed, I will apply Supreme Court and Ninth Circuit precedent regarding the
use of legislative history. There can be circumstances where pre-enactment
legislative history provides context for determining the meaning and import of
statutory text that may have persuasive value. However, the statutory text itself must
be the primary focus, and, as I testified at my hearing, the legislative history often
itself is ambiguous and contradictory. Compare Bruesewitz, 562 U.S. at 244-50
(Breyer, J., concurring), with id. at 250-76 (Sotomayor, J., dissenting).
b. If you are confirmed to serve on the federal bench, your opinions would be
subject to review by the Supreme Court. Most Supreme Court Justices are willing
to consider legislative history. Isn’t it reasonable for you, as a lower-court judge,
to evaluate any relevant arguments about legislative history in a case that comes
before you?
See response to Question 6(a).
7. Do you believe that judicial restraint is an important value for a district judge to consider
in deciding a case? If so, what do you understand judicial restraint to mean?
Yes. The principle of judicial restraint is related to the separation of powers and the
recognition that it is Congress, not the courts, that enacts laws. Based on this principle,
the Supreme Court has held, for example, that courts should “avoid reaching
constitutional questions in advance of the necessity of deciding them,” Camreta v.
Greene, 563 U.S. 692, 705 (2011), and should consider non-constitutional arguments
challenging a statute before reaching constitutional arguments, Jean v. Nelson, 472 U.S.
846, 854 (1985).
a. The Supreme Court’s decision in District of Columbia v. Heller dramatically
changed the Court’s longstanding interpretation of the Second Amendment.6 Was
that decision guided by the principle of judicial restraint?
Heller is binding Supreme Court precedent that I will apply, if confirmed. As a
sitting judge and a judicial nominee, it is inappropriate for me to state my
agreement or disagreement with Supreme Court precedent.
b. The Supreme Court’s decision in Citizens United v. FEC opened the floodgates to
big money in politics.7 Was that decision guided by the principle of judicial
restraint?
The majority opinion and some of the separate opinions in Citizens United
addressed the issue of judicial restraint. Citizens United is binding Supreme
Court precedent that I will apply, if confirmed. As a sitting judge and judicial
nominee, it is inappropriate for me to state my agreement or disagreement with
Supreme Court precedent.
c. The Supreme Court’s decision in Shelby County v. Holder gutted Section 5 of the
Voting Rights Act.8 Was that decision guided by the principle of judicial
restraint?
4

 Shelby County is binding Supreme Court precedent that I will apply, if
confirmed. As a sitting judge and judicial nominee, it is inappropriate for me to
state my agreement or disagreement with Supreme Court precedent.

554 U.S. 570 (2008).
558 U.S. 310 (2010).
8
570 U.S. 529 (2013).
6
7

5

 8. Since the Supreme Court’s Shelby County decision in 2013, states across the country
have adopted restrictive voting laws that make it harder for people to vote. From stringent
voter ID laws to voter roll purges to the elimination of early voting, these laws
disproportionately disenfranchise people in poor and minority communities. These laws
are often passed under the guise of addressing purported widespread voter fraud. Study
after study has demonstrated, however, that widespread voter fraud is a myth.9 In fact, inperson voter fraud is so exceptionally rare that an American is more likely to be struck by
lightning than to impersonate someone at the polls.10
a. Do you believe that in-person voter fraud is a widespread problem in American
elections?
I have not studied or formed any informed beliefs on this issue.
b. In your assessment, do restrictive voter ID laws suppress the vote in poor and
minority communities?
I have not assessed this issue, and it would be inappropriate for me to state
an opinion on this political topic that could come before the courts.
c. Do you agree with the statement that voter ID laws are the twenty-first-century
equivalent of poll taxes?
This is a political topic and it would be inappropriate for me to state an
opinion on the issue. See Canons 2, 3 & 5, Code of Conduct for United
States Judges; Rules 2.1, 3.3 & 5.1, Oregon Code of Judicial Conduct.
9. 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?
Racial bias does exist in our society, contrary to the fundamental principle of
equality under the law embodied in the Constitution. As a judge, I strive to ensure
that every person who enters into my courtroom is treated with respect and
receives fair treatment under the law.
b. Do you believe people of color are disproportionately represented in our nation’s
jails and prisons?
Yes.
6

 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 formally studied this topic, but I have attended presentations and
discussions related to these issues over the course of my career. I do not remember
the specific presentations other than I have heard Bryan Stevenson speak on these
topics on three separate occasions. I have also listened to numerous TED talks
addressing issues of race and the criminal justice system.

Debunking the Voter Fraud Myth, BRENNAN CTR. FOR JUSTICE (Jan. 31, 2017), https://www.brennancenter.org
/analysis/debunking-voter-fraud-myth.
10
Id.
11
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.
9

7

 d. According to a report by the United States Sentencing Commission, black men
who commit the same crimes as white men receive federal prison sentences that
are an average of 19.1 percent longer.15 Why do you think that is the case?
I am not familiar with this report, and I have not studied this issue sufficiently
to form a judgment.
e. According to an academic study, black men are 75 percent more likely than
similarly situated white men to be charged with federal offenses that carry harsh
mandatory minimum sentences.16 Why do you think that is the case?
I am not familiar with this study, and I have not studied this issue sufficiently
to form a judgment.
f. What role do you think federal district judges, who review difficult, complex
criminal cases, can play in addressing implicit racial bias in our criminal justice
system?
Federal district judges have an essential role to play in ensuring the fair
administration of law to the cases brought before them. District judges must apply
the law without regard to a person’s race and take steps to eliminate any potential
for implicit racial bias.
10. 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.17 In the 10 states that
saw the largest increase in their incarceration rates, crime decreased by an average of 8.1
percent.18
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 studied this question sufficiently to have an informed view.
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 studied this question sufficiently to have an informed view.
11. 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.

12. Would you honor the request of a plaintiff, defendant, or witness in a case before you
who is transgender to be referred to in accordance with that person’s gender identity?
8

 Yes.
13. Do you believe that Brown v. Board of Education19 was correctly decided? If you cannot
give a direct answer, please explain why and provide at least one supportive citation.
As I testified at my hearing, I do believe that Brown v. Board of Education was
correctly decided and holds a significant and unique place in American jurisprudence.

U.S. SENTENCING COMM’N, DEMOGRAPHIC DIFFERENCES IN SENTENCING: AN UPDATE TO THE 2012 BOOKER
REPORT 2 (Nov. 2017), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/researchpublications/2017/20171114_Demographics.pdf.
16
Sonja B. Starr & M. Marit Rehavi, Racial Disparity in Federal Criminal Sentences, 122 J. POL. ECON. 1320, 1323
(2014).
17
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-rates
-continue-to-fall.
18
Id.
19
347 U.S. 483 (1954).
15

9

 14. Do you believe that Plessy v. Ferguson20 was correctly decided? If you cannot give a
direct answer, please explain why and provide at least one supportive citation.
No.
15. 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 answers that I gave at my hearing and my answers to these written questions for the
record are my own. Prior to my hearing I watched numerous prior judicial confirmation
hearings, including hearings of nominees to the Supreme Court, and was familiar with
the well-established practice of nominees declining to opine on Supreme Court cases and
political issues. I also reviewed both the Oregon and federal judicial codes of conduct. I
did receive general advice from attorneys at the Department of Justice regarding typical
lines of questioning and the limitations imposed by the federal Code of Judicial
Conduct.
16. As a candidate in 2016, President Trump said that U.S. District Judge Gonzalo Curiel,
who was born in Indiana to parents who had immigrated from Mexico, had “an absolute
conflict” in presiding over civil fraud lawsuits against Trump University because he was
“of Mexican heritage.”21 Do you agree with President Trump’s view that a judge’s race
or ethnicity can be a basis for recusal or disqualification?
A federal judge’s recusal obligation is governed by 28 U.S.C. § 455. I do not believe a
judge’s race or ethnicity is a basis for recusal.
17. 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.”22 Do you believe that immigrants,
regardless of status, are entitled to due process and fair adjudication of their claims?
The Supreme Court has held that due process protections apply to all “persons” in the
United States, including aliens regardless of their entry status. Zadvydas v. Davis, 533
U.S. 678, 693 (2001). I will apply this Supreme Court precedent, if confirmed.

1

 163 U.S. 537 (1896).
Brent Kendall, Trump Says Judge’s Mexican Heritage Presents ‘Absolute Conflict,’ WALL ST. J. (June 3, 2016),
https://www.wsj.com/articles/donald-trump-keeps-up-attacks-on-judge-gonzalo-curiel-1464911442.
22
Donald J. Trump (@realDonaldTrump), TWITTER (June 24, 2018, 8:02 A.M.), https://twitter.com/realDonaldTrump
/status/1010900865602019329.
20
21

1

 Questions for the Record from Senator Kamala D. Harris
Submitted October 2, 2019
For the Nomination of
Danielle J. Hunsaker, to be United States Circuit Judge for the Ninth Circuit
1. At your nominations hearing, Senator Cruz asked you to describe your judicial
philosophy. You responded that you consider yourself a textualist. In response to
Senator Kennedy, you also said that judges may be informed by legislative history, but
should exercise caution because it is easy to cherry-pick legislative history.
a. In your view, when is it appropriate for a judge to consider legislative
history?
The Supreme Court has held that legislative history should be considered only if
the statutory text itself is ambiguous. Food Marketing Institute v. Argus Leader
Media, __ U.S. __; 139 S. Ct. 2356, 2364 (2019) (“Even those of us who
sometimes consult legislative history will never allow it to be used to ‘muddy’ the
meaning of ‘clear statutory language.’”); Mohamad v. Palestinian Authority, 566
U.S. 449, 458-59 (2012) (“[R]eliance on legislative history is unnecessary in light
of the statute’s ambiguous language.”) (internal quotation marks and citation
omitted). The Supreme Court has also held that only pre-enactment legislative
material may be considered when determining the meaning of a statute.
Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011).
b. If confirmed, would you remain open to considering legislative history when
interpreting the meaning of a statute? If yes, under what circumstances?
If confirmed, I will apply Supreme Court precedent regarding the use of
legislative history, including the precedents discussed in response to Question
1(a). There can be circumstances where pre-enactment legislative history provides
context for determining the meaning and import of statutory text that may have
persuasive value. However, the statutory text itself must be the primary focus,
and, as I testified at my hearing, the legislative history often itself is ambiguous
and contradictory. Compare Bruesewitz, 562 U.S. at 244-50 (Breyer, J.,
concurring), with id. at 250-76 (Sotomayor, J., dissenting).
c. Do you believe it is ever appropriate for a judge to consider the impact of a
potential ruling when deciding a case? Why or why not?
Judges should understand the facts and circumstances of the cases brought before
them so that they also understand the impact or consequences of their decisions.
However, judicial decisions should be dictated by the fair and reasonable
application of governing law, not on a particular outcome.

 2. In 2013, Texas passed House Bill 2, which imposed restrictions on health care facilities
that provided access to abortions. After the law passed, the number of those health care
facilities dropped in half, from about 40 to about 20, severely limiting access to health
care for the women of Texas. In Whole Woman’s Health, the Supreme Court struck
down two provisions of the Texas law based on its overall impact on abortion access in
the state.
a. Was Whole Woman’s Health correctly decided?
As a sitting judge and a judicial nominee it is inappropriate for me to comment on
my personal views of Supreme Court precedent. I will faithfully apply Whole
Woman’s Health and all other relevant, binding precedent if confirmed.
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?
In Whole Woman’s Health, the Supreme Court reaffirmed and applied the undue
burden standard established in Casey v. Planned Parenthood.
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?
The Supreme Court’s decisions regarding the undue burden test, including Casey
and Whole Woman’s Health, are binding precedent that I will faithfully apply, if
confirmed. It is inappropriate for me to opine on how that test should be applied
beyond what the Supreme Court has established because these issues could come
before the court in pending or impending litigation. Canon 3(A)(6), Code of
Conduct for United States Judges; Rule 3.3(C), Oregon Code of Judicial Conduct.
d. 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 has an overall impact of reducing abortion access statewide?
See response to Question 2(c).
3. 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?
Judges have a direct responsibility to ensure that litigants are afforded due process
and fair and equal treatment under the law. See 28 U.S.C. § 455; Code of Judicial
Conduct for United States Judges.

 b. If confirmed, what steps will you take to help ensure that our justice system
is a fair and equitable one?
If confirmed, I will perform my role consistent with the requirements imposed by
law and the Code of Judicial Conduct. I also believe in the principles of
procedural fairness, which seek to ensure fairness within the judicial system and
promote public perception that the system is fair. These principles include
demonstrating that the parties’ positions have been heard and fairly considered,
that the decisionmakers are neutral and transparent in their decisionmaking, and
that all parties are treated with respect and courtesy.
c. Do you believe there are racial disparities in our criminal justice system? If
so, please provide specific examples. If not, please explain why not.
Racial bias does exist in our society, contrary to the fundamental principle of
equality under the law embodied in the Constitution. As a judge, I strive to ensure
that every person who enters into my courtroom is treated with respect and
receives fair treatment under the law.

 Senator Ben Sasse
Senate Judiciary Committee Hearing: “Nominations”
September 25, 2019
Questions for the Record
For the Hon. Danielle Hunsaker:
1. Does a legal text—such as the Constitution, a statute, or a rule—have a fixed, static
meaning?
As a general matter, words used in legal texts have a specific meaning that remains
constant unless the text is amended or changed. If the Supreme Court interprets a text, its
interpretation is binding on all lower courts. If the Supreme Court has not addressed the
text at issue, lower courts interpret the text. As I testified at my hearing, my approach to
interpretation is to start with the ordinary meaning of the words used at the time they
were enacted.
2. How should a judge determine if a legal text is ambiguous?
The words of the text are the starting point for any interpretative analysis, and if the plain
meaning of those words leads only to one reasonable result that is the end of the analysis.
Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004). If the plain meaning of the words
reasonably can be understood in more than one way, then courts should employ the
canons of construction to resolve the ambiguity and identify the most reasonable
interpretation. See, e.g., Mohamad v. Palestinian Authority, 566 U.S. 449, 457 (2012)
(“‘Words that can have more than one meaning are given content . . . by their
surroundings.’”) (quoting Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457, 466
(2001)).
3. When is it appropriate for a judge to consider legislative history?
The Supreme Court has held that legislative history should be considered only if the
statutory text itself is ambiguous. Food Marketing Institute v. Argus Leader Media, 139
S. Ct. 2356, 2364 (2019) (“Even those of us who sometimes consult legislative history
will never allow it to be used to ‘muddy’ the meaning of ‘clear statutory
language.’”);Mohamad v. Palestinian Authority, 566 U.S. 449, 458-59 (2012)
(“[R]eliance on legislative history is unnecessary in light of the statute’s unambiguous
language.”) (internal quotation marks and citation omitted). The Supreme Court has also
held that if legislative history is considered, only pre-enactment materials are relevant to
determining the meaning of a statute. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242
(2011).
As I testified at my hearing, even if legislative history properly can be considered under
Supreme Court or Ninth Circuit precedent, I have reservations about giving this
information significant weight because often it contains materials that are inconsistent or
even directly contradictory.

 4. Under what circumstances is it appropriate for a judge to consider legislative intent, and
if such circumstances exist, how does a judge go about determining it?
The Supreme Court has instructed that the words of a statute are the best indication of
legislative intent. Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004). If the plain meaning
of the words used lead to a result different than what was intended, Congress “should
amend the statute to conform to its intent.” Id. at 542. It is not for the courts to legislate
through interpretation. Id. If confirmed, I will follow this and all other Supreme Court
precedent regarding the identification and application of legislative intent in interpreting
texts.
5. When well-established historical practice with respect to a particular legal text and a
judge’s best understanding of the original public meaning of that text conflict, does the
original public meaning of the text control, or are there circumstances under which wellestablished historical practice should override the original public meaning of that text?
Assuming for purposes of this hypothetical that the issue is a matter of first impression
where there is no binding authority establishing the meaning of the text based on original
public meaning, well-established historical practice, or anything else, the ordinary rules
of statutory interpretation, including focusing on the plain meaning of the enacted words,
apply even where there is a prior well-established practice. See, e.g., U.S. v. Ron Pair
Enters., Inc., 489 U.S. 235 (1989).
6. If a federal court of appeals concludes that one of its own precedents conflicts with the
best understanding of the original public meaning of a provision of the Constitution, are
there factors that might legitimately persuade that court to consider preserving its existing
precedent? If so, what might a list of those factors include? For the purposes of this
question, please assume that there is no Supreme Court precedent on point.
In the Ninth Circuit, only the en banc court can overturn one of its prior precedential
decisions unless the decision has already been undermined by intervening Supreme Court
precedent. Kohler v. Presidio Intern., Inc., 782 F.3d 1064, 1070 (9th Cir. 2015). When
sitting en banc, it is the court’s “province and obligation . . . to review the current validity
of challenged prior decisions.” United States v. Aguon, 851 F.2d 1158, 1167, n.5 (9th
Cir. 1988), overruled on other grounds by Evans v. United States, 504 U.S. 255 (1992).
The Supreme Court has identified factors that are relevant in considering whether to
overrule a past decision. Relevant factors include the “antiquity of the precedent, the
reliance interests at stake, and of course whether the decision was well reasoned.”
Montejo v. Louisiana, 556 U.S. 778 (2009).
7. If a federal court of appeals concludes that a Supreme Court precedent conflicts with the
best understanding of the original public meaning of a provision of the Constitution, is
that court of appeals bound to apply that Supreme Court precedent to the full extent of its
logic beyond the Supreme Court’s original holding, or should that court of appeals
attempt to limit the reach of that Supreme Court precedent?

 Lower courts are obligated to apply Supreme Court precedent regardless of their view of
that precedent. As a general matter, the duty to apply precedent extends to the specific
holding of the case, as well as the reasoning or legal rule that governed the holding.
Whether precedent controls a future case with new circumstances is a common analysis
that judges must conduct, and certainly it is not unique for courts to distinguish precedent
based on different circumstances or issues presented in later cases. Sometimes the
Supreme Court itself signals the intended scope of its decision.
8. Do federal courts derive legitimacy by reflecting contemporary values and social mores
in their decisions?
As established in Marbury v. Madison, it is “emphatically the province and duty of the
judicial department to say what the law is.” 1 Cranch 137, 177 (1803). Federal courts
derive legitimacy by performing their defined role and interpreting and applying
governing law, including precedent, to the specific cases and controversies presented to
them.
9. How should judges determine what constitute contemporary values and social mores?
To the extent the law or precedent requires consideration of contemporary values and
social mores, appellate judges must decide cases based on the factual record developed in
the trial court.
10. In federal jurisprudence, which are preferable: rules or standards?
Predictability and stability are important in the law because litigants and the general
citizenry need to know what the law requires so they can make decisions and conform
their conduct accordingly. Predictability and stability promote both obedience to and
respect for the law. The label assigned to a legal test is not determinative of these goals, it
is the test’s clarity in explanation and application. That said, in my experience, legal tests
framed as rules typically provide more clarity and certainty than legal tests framed as
standards.