Democrats on the Senate Judiciary Committee on Feb. 26 grilled several individuals poised to take top positions in the U.S. Department of Justice (DOJ) on whether officials should always obey court rulings.
“That’s an incredible statement by someone who wants to be part of the Department of Justice,” Sen. Dick Durbin (D-Ill.) said.
Durbin, the top Democrat on the panel, had pointed to Reitz’s 2020 social media post in which he expressed disagreement with a court decision and appeared to suggest that Texas officials should defy it.
“Bottom line, should an elected official be allowed to defy a federal court order?” Durbin had asked.
That’s when Reitz said it was too case-specific to say.
“There is no hard and fast rule about whether in some, in every instance a public official is bound by a court decision,” Reitz added later, explaining that he thinks there are good faith disagreements over whether court rulings can apply nationwide and to people who are not litigants in a case.
Sen. Cory Booker (D-Conn.) said that if officials do not obey court orders, it would “really create a constitutional crisis.” He said the view offered by Reitz troubled him.
Durbin also pressed John Sauer, President Donald Trump’s nominee to be the next solicitor general, on the issue.
“I don’t want to speak to hypotheticals, especially not hypotheticals that might come before me in an official capacity if I were confirmed by the Senate. Generally, if there’s a direct court order that binds a federal or state official, they should follow it,” Sauer said.
He referenced historical decisions such as the 1857 U.S. Supreme Court ruling that found that a black former slave who lived in a free state was not free.
“I just wonder whether some historians might think we’d be better off if it hadn’t been followed,” Sauer said.
Sen. Josh Hawley (R-Mo.) said that another Supreme Court ruling that upheld holding Japanese nationals in internment camps during World War II was “one of the worst and most abhorrent decisions” and indicated that officials might not just blindly follow rulings they find “morally abhorrent.”
Durbin said there was “a great fear among many people” that Trump might defy a court order.
Sauer said that he does not think that is a plausible scenario.
Both Sauer and Harmeet Dhillon, Trump’s nominee for assistant attorney general for civil rights, have represented Trump in the past.
Sen. Chris Coons (D-Conn.) later asked Dhillon what she would do if Trump were to ask her to do something she believed was illegal or unconstitutional.
Dhillon said that in her years of representing Trump, he has never asked her to do any such thing.
“So I really can’t fathom the circumstance that you’re describing,” she said. “It would really be hypothetical.”
Sauer was also the solicitor general of Missouri from 2017 to 2023, and Dhillon was previously vice chair of the California Republican Party and a member of the Republican National Committee in addition to her legal work.
Reitz, a former deputy attorney general at the office of the Texas attorney general, has been working as chief of staff for Sen. Ted Cruz (R-Texas), who is a member of the Senate Judiciary Committee.
Sen. John Kennedy (R-La.) told the nominees near the end of the hearing that he was going to give them advice.
“Don’t ever ever take the position that you’re not going to follow the order of a federal court. Ever,” he said. “Now you can disagree with it. Within the bounds of legal ethics, you can criticize it. You can appeal it. Or you can resign.”
