A President Joe Biden judicial nominee who bungled questions about the Constitution at her confirmation hearing is getting Republican pushback as Democrats maintain support.
Charnelle Bjelkengren, a nominee to the US District Court for the Eastern District of Washington, failed to answer questions at the Jan. 25 hearing from Senate Judiciary Committee member John Kennedy (R-La.) about the scope of Articles V and II and a legal theory about statutory interpretation. Article V deals with amendments and Article II is about the executive branch.
“Is this the caliber of legal expert with which President Biden is filling the federal bench? For lifetime appointments? Is the bar of merit and excellence really set this low?” Senate Minority Leader Mitch McConnell (R-Ky.) said in floor remarks Tuesday.
Kennedy said he wouldn’t support her nomination. “Look, if you want to be an auto mechanic, you got to know what a spark plug is,” he said in an interview.
The opposition marks the first dust up over a judicial nominee of the new Congress, though Democrats no longer need Republican support for those nominations to advance out of the Judiciary Committee with additional membership.
“I think you have to take the life experience circumstances of each of the nominees in consideration. And she’s clearly qualified to take this job,” Judiciary Chair Dick Durbin (D-Ill.) said in an interview on Wednesday.
Durbin highlighted her “Qualified” rating from the American Bar Association. He said he hadn’t yet whipped committee votes on her nomination.
Bjelkengren, a Washington State Superior Court judge, would be the first Black woman to serve on a federal trial court in Washington state, if confirmed, according to a White House release when Biden announced plans to nominate her.
Matthew Petersen, a Donald Trump nominee who similarly failed a quiz on his experience and legal definitions from Kennedy during his confirmation vetting, later withdrew his nomination from consideration.
Kennedy questioned Petersen, a former Federal Election Commission chair, on his lack of experience in courtrooms and taking depositions, and quizzed him on the legal process. Petersen, who was nominated to the federal district court in Washington, D.C., wasn’t able to answer the questions and later withdrew his nomination.
Durbin distinguished Bjelkengren from Petersen.
“Let me tell you, all nominees can’t answer all of Kennedy’s questions. That just never happens. Some of them are embarrassed to the point that they want to get out of the spotlight and go back to whatever they were doing. Each one makes a decision,” Durbin said.
He said he doesn’t think that’s the case with Bjelkengren.
“I think she’s a good nominee, and I think we’re gonna work hard to make sure she gets on the bench,” Durbin said.
Sen. Sheldon Whitehouse (D-R.I.), who was critical of Petersen’s misstep at the time, called Petersen’s responses a “pretty bleak stumble” and said Bjelkengren is a “very talented lawyer.”
While not being able to recall Article II is “not the image you want to project during one of these hearings,” the question has little to do with a nominee’s ability to manage a trial docket, said John P. Collins, a professor at Geroge Washington University Law who studies judicial nominations.
Petersen’s situation was different in that his questions were directly related to the work of a trial judge whereas Bjelkengren’s weren’t, Collins said. The damage to Petersen’s nomination was also inflicted by the party of the president who nominated him, which is “a little bit more of an embarrassing situation,” he said.
Collins said he doesn’t expect Bjelkengren’s misstep will have an impact on her nomination moving forward.
McConnell criticized Bjelkengren’s lack of experience in federal law and her resume in his floor remarks.
“At no stage in her professional career has the judge focused on federal law. At no point has she ever even appeared in federal court,” McConnell said.
He pointed to a case in which she lost to an unrepresented party that she listed in her Senate Judiciary Questionnaire as one of the most significant she had litigated.
“She’s probably going to be in trouble,” Sen. Lindsey Graham (R-S.C.), who has been fairly supportive of Biden’s lower court nominations. He added: “It seems like she was poorly prepared.”
At the start of the hearing, Sen. Patty Murray (D-Wash.), who recommended Bjelkengren for the position, praised her career in public service.
“Judge Bjelkengren has over two decades of experience serving the people of Washington state, working thoughtfully through tough legal questions that affect their daily lives and ensuring that we have a justice system that treats people fairly and works for everyone–not just the powerful and well-connected,” Murray said.
Before serving on the superior court, Bjelkengren was an administrative law judge for Washington’s Office of Administrative Hearings and served as a state assistant attorney general.
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