WASHINGTON (CN) - President Donald Trump's nominee to serve on the 11th Circuit promised on Wednesday she would faithfully follow precedent, rebuffing concerns Democrats raised about her opinions on substantive due process.
"I think if you look at my record, you can see from the analysis of my cases, that I am a textualist and originalist and absolutely, at the end of the day, I am bound by U.S. Supreme Court precedent," Judge Elizabeth Branch told the Senate Judiciary Committee at her nomination hearing Wednesday.
Branch has served on the Georgia Court of Appeals since 2012, and Sen. Chuck Grassley, the Iowa Republican who chairs the Judiciary Committee, said she participated in roughly 1,500 cases during her time on the bench.
But most of the questioning Branch faced from senators on Wednesday was not about her judicial record, but instead focused on a speech she gave earlier this year on the 14th Amendment.
The speech was part of Law Day for the Gainesville-Northeastern Bar Association in Georgia and in it Branch said she continues to "struggle with the application and predictability" of court rulings on the substantive due process principle gleaned in part from the 14th Amendment.
Unlike procedural due process, substantive due process is not explicitly named in the Constitution, but comes from the due process clauses in the 14th and 5th Amendments. Courts have used substantive due process to protect fundamental rights that do not involve legal procedures and the principle has been applied in such landmark cases as Roe v. Wade and Griswold v. Connecticut.
Branch said the subject of the speech was chosen by the American Bar Association for Law Day activities and that part of her point was that it can be hard to predict how courts will rule each time a substantive due process case comes up. She insisted that she would follow the applicable precedent if confirmed to a seat on the federal appeals court.
"That's the only issue I was raising, is that it's hard to predict, as new cases come along, what the Supreme Court may do," Branch said Wednesday. "But that doesn't really matter, whether or not I can predict what a future case will be, I am bound by the Supreme Court precedent in this area."
Democrats pressed Branch on the limits of her apparent questions about the substantive due process principle, but the judge followed the lead of other nominees in declining to comment on hypothetical cases that might come before her if confirmed.
Sen. Dick Durbin, D-Ill., was unhappy with her unwillingness to answer his question about how her comments would apply to Griswold.
"Judge, you just expressed you personal opinion when it came to originalism, now I'm asking you to apply the decision to a case which has been the law of the land for 60 years and you're telling me you can't apply it to the case?" Durbin asked.
Unlike most nomination hearings during the Trump administration, the circuit court nominee received fewer questions than the federal district court nominees who testified later at the hearing.
Some of the most pointed questioning was directed at Matthew Kacsmaryk, who currently works as deputy general counsel at the First Liberty Institute, a legal group dedicated to religious freedom cases.