Democratic senators press Trump nominees on whether officials can ever ignore judges' orders

Several of President Donald Trump’s nominees for senior Justice Department positions faced questions from Senate Democrats on Wednesday about whether it would ever be lawful for a president to defy a court order, with the nominees largely suggesting they couldn't fully answer without more specifics.

“It would be too case-specific for me to say, to make a blanket statement about that,” Aaron Reitz, whom Trump has nominated to be an assistant attorney general, told Sen. Dick Durbin, of Illinois, the ranking Democrat on the Judiciary Committee.

Durbin followed up by asking in what circumstances Reitz, who is chief of staff for Sen. Ted Cruz, R-Texas, would justify ignoring a court order.

“What I’m saying is that there are some instances in which a public official is lawfully bound by the holding of a particular court, in which case that official would in fact, lawfully be required to be bound by it,” Reitz said. “I can’t speak though, Ranking Member Durbin, for all instances in which that dynamic may or may not be at play given a certain lawsuit.”

The issue has come to the fore early in the Trump administration as Vice President JD Vance, among others, has criticized the number and breadth of judicial rulings against Trump administration policies, posting on social media that "judges aren't allowed to control the executive's legitimate power."

D. John Sauer, Trump’s nominee for solicitor general, also pleaded the difficulty of weighing a hypothetical when questioned by Durbin.

“I don’t want to speak to hypotheticals, especially hypotheticals that might come before me in an official capacity, if I were confirmed by the Senate,” said Sauer, who served as Missouri’s solicitor general and represented Trump in front of the U.S. Supreme Court last year.

Sauer added that “generally, if there is a direct court order that binds a federal or state official, they should follow it.”

Upon further questioning from Durbin about his use of the word “generally” and whether there are acceptable exceptions to following court orders, Sauer demurred again, telling Durbin, “I can’t think of a hypothetical one way or another.”

Sauer then cited the 1944 Korematsu v. United States case, which upheld the internment of Japanese Americans during World War II, and the 1857 Dred Scott v. Sandford case, in which the Supreme Court stated that enslaved people were not citizens of the U.S. and were exempt from protection from the federal government or the courts.

The 13th and 14th Amendments superseded the Dred Scott decision by abolishing slavery and establishing birthright citizenship, effectively overturning it. And while the Korematsu decision was never formally overturned, Chief Justice John Roberts called it “gravely wrong” in an unrelated 2018 case and wrote that it “has been overruled in the court of history, and — to be clear — has no place in law under the Constitution.”

“I just wonder whether some historians might think we’d be better off if it [Korematsu] hadn’t been followed,” Sauer told Durbin.

Later in Wednesday’s hearing, Sen. Cory Booker, D-N.J., more directly asked Reitz “if you morally disagree with a court order, do you believe you can defy that court order, that the Trump administration, that the government … can defy that court order?”

Booker specifically invoked a tweet of Reitz’s, in which Booker said he “compared the Dred Scott decision to the court’s decision in same-sex marriages.”

Reitz told Booker that the premise of his question “is too hypothetical for me to be able to answer with precision.”

Later in the hearing, the Senate Democrats got a measure of support from Sen. John Kennedy, R-La., who issued a warning to the nominees against subverting the decisions of federal courts.

“Don’t ever, ever take the position that you’re not going to follow the order of a federal court. Ever. Now, you can disagree with it. Within the bounds of legal ethics you can criticize it. You can appeal it, or you can resign,” Kennedy said, before implicitly criticizing the Biden administration. “For four years, I have watched people in this town — not all, not, not everybody — but many try to undermine the legitimacy of the federal judiciary and it triggered each and every time my gag reflex."

“Now all our judiciary has … is its legitimacy. It doesn’t have an army,” Kennedy added.

This article was originally published on NBCNews.com