Senate Minority Leader Mitch McConnell (R-Ky.) on Tuesday criticized one of President Joe Biden’s judicial nominees for missing basic questions about the U.S. Constitution in his confirmation hearing last week.
Charnelle Bjelkengren, a Washington county superior court judge and former assistant state attorney general nominated for a lifetime seat on the US District Court for the Eastern District of Washington, could not answer when asked by Sen. John Kennedy (R-La.) on Article II and Article V of the Constitution, and on the judicial philosophy known as “purposivism.”
Article II sets up the presidency and the executive branch, while Article V outlines the process for amending the Constitution. Bjelkengren said he couldn’t remember was one of them when he sat before the Senate Judiciary Committee last Wednesday.
“Alas,” McConnell said Tuesday on the Senate floor. “Are these lawyers of the caliber that President Biden is filling the federal bench? For lifetime appointments? Is the bar for achievement and excellence really that low?”
Kennedy is known for his pop quizzes for judicial nominations that come to committee. He has finished for the nomination of the president in both parties, including one of the former candidates for President Donald Trump, Matthew Peterson, who cancel the nomination after a particularly humiliating exchange with a Republican senator.
Kennedy told HuffPost on Tuesday that he plans to fight Bjelkengren’s nomination because he failed to answer his questions.
“If you want to be a car mechanic,” he said, “you need to know what spark plugs are.”
Bjelkengren’s flub is clearly not good for Democrats, but they are chalking the moment up to the nerves that first-time judicial nominees often experience when testifying before Congress.
“The honest answer is that not many members of the Senate Judiciary Committee can answer all of these questions,” said Sen. Dick Durbin (D-Ill.), chairman of the committee, about Kennedy’s tendency to ask vague or curveball questions. .
Asked if he thought prospective justices should know about Article II of the Constitution specifically, Durbin said, “Sure, but what I’m saying is, you’re in the middle of a hearing, a little nervous to start…. It happens.”
Sen. Patty Murray (D-Wash.), who forwarded Bjelkengren’s nomination to Biden, also stood by her choice.
“Judge Charnelle Bjelkengren was recommended to me by a nonpartisan judicial merit selection committee comprised of Democrats and Republicans, she has strong support from the community she will serve, and she is qualified by the ABA,” Murray said in a statement to HuffPost. “When we make decisions like this, it’s important to judge the candidates holistically – we have to look at the whole picture. I’m working to continue to build support for Judge Bjelkengren, and I hope my fellow Republicans support him as well.”
The reality is that Democrats don’t need Republicans to support Bjelkengren in order to be confirmed. They currently have a 51-49 majority in the Senate, which makes a world of difference for the judge to confirm compared to the 50-50 split they had to contend with in the last Congress. It might just be the difference of one additional seat, but one seat means Republicans can’t hold up Biden’s judicial nomination in committee or delay it on the Senate floor.
That said, how bad is it if a candidate for a US district court seat can’t answer questions about Article II and Article V of the Constitution?
Carl Tobias, a University of Richmond law professor and expert on judicial nominations, said there was noise but no one should interfere with the confirmation because of his background.
“District judges never face Article V issues and judges in the Eastern District of Washington rarely have constitutional questions,” Tobias said. “He has ten years of experience as a judge and assistant state attorney general, so I think he’ll do well.”
Republicans eager to attack the wrong Bjelkengren also hope you’ll forget how they unanimously confirmed Trump’s pile of judges who earned the rare and embarrassing “not qualified” rating by the American Bar Association.
In his four years in office, Trump has nominated 10 people for life as federal judges who he deems “unqualified” for the job, and Republicans have moved on. put eight people in court anyway. For some context, none of President Barack Obama’s judicial picks have gained ratings in eight years. Six of President George W. Bush’s nominees achieved ratings over two terms.
Bjelkengren earned a “qualified” rating by the American Bar Association.
If confirmed, Bjelkengren will be the first woman of color to serve on the U.S. District Court for the Eastern District of Washington. She will also be the first black woman to serve on a federal district court in Washington state.