President Donald Trump's nominee for solicitor general, D. John Sauer, told senators at his confirmation hearing on Wednesday that in "extreme cases," it is conceivable that an elected official could defy a court order if it's morally called for.
The point was raised during an exchange between Sauer and Senate Judiciary Committee Ranking Member Dick Durbin, D-Ill.
Durbin asked Sauer: "Should an elected official be allowed to defy a federal court order?"
Sauer replied, "Generally, if there's a direct court order that binds a federal or state official, they should follow it."
"Why do you say 'generally?' Give me an an exception that would be acceptable to you," Durbin demanded.
Sauer then pointed to two legal cases: the 1944 case that upheld the legality of Japanese internment camps during World War II and the 1857 case Dred Scott case that determined slavery was legal.
"I suppose if we, again, as I sit here, I can't think of a hypothetical one way or the other," Sauer replied. "I suppose one could imagine hypotheticals in, you know, extreme cases like, you know, the Korematsu decision, you know, the Dred Scott decision."
"Let's go back to Korematsu. Describe for me that circumstance that you think relieved an official from obeying a court order," Durbin said.
"Well, I believe there was a court order there that upheld — which has now been, I think, correctly repudiated by virtually everyone — a court order that upheld the internment of Japanese civilians," Sauer said.
"As bad as it was," Durbin interjected, "that court order was followed for years, was it not?"
"And I just wonder," Sauer replied, "whether some historians might think we'd be better off if it hadn't been followed. But once again, I don't want to get into a discussion of hypotheticals."
Durbin responded, "I want to get into it, because I think it goes to the heart of a question of a future constitutional challenge we face as a nation.
"There's a great fear among many people — academics and people in the legal profession — as to whether or not this president would defy a court order, which basically would put him above the law, at least in his own eyes, and I want to know what circumstances Mr. [Aaron] Reitz [nominee for assistant attorney general] and Mr. Sauer believe justify that conclusion," he said.
After Durbin's time was up, Sen. Josh Hawley, R-Mo., said he was perplexed by the senator's comments.
"I think maybe I ... misunderstood this last line of questioning," Hawley said. "I thought it sounded to me like my friend Sen. Durban was defending the Korematsu decision, which I think is one of the worst and most abhorrent decisions in the history of the United States."
Nick Koutsobinas ✉
Nick Koutsobinas, a Newsmax writer, has years of news reporting experience. A graduate from Missouri State University’s philosophy program, he focuses on exposing corruption and censorship.
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