Ex-Congressman, Judicial Pick Stumbles on Free Speech Question

A former congressman became the latest Biden judicial nominee to struggle with a constitutional law question at a Senate confirmation hearing.

Anthony Brindisi, nominated for the Syracuse-based Northern District of New York, was unable to satisfy Sen. John Kennedy (R-La.) when asked on Wednesday whether “government has the right to free speech.”

Brindisi started to frame an answer around individual free speech rights before later saying he hadn’t had a case on government speech in “my 20 years of litigating civil litigation matters” and more than two years as a state judge.

Kennedy is known to pose questions at Judiciary Committee hearings about legal doctrines and courtroom procedure that have tripped up nominees from both parties.

Other Biden nominees who didn’t pass a Kennedy quiz included Kato Crews, then a magistrate judge, couldn’t define a Brady motion and how to analyze it. He was confirmed to the District of Colorado in January. Charnelle Bjelkengren failed to answer inquiries about articles dealing with Constitutional amendments and the executive branch. She later withdrew her nomination for a trial court seat in Washington state.

Kennedy’s questions frequently relate to petitions or cases pending before or recently decided by the US Supreme Court.

The high court touched on government speech last term, saying that public officials who post about their work on their private social media accounts may be considered a government speaker.

In quizzing Brindisi, Kennedy referenced the court’s 2015 decision in Walker v. Texas Div., Sons of Confederate Veterans. The justices said that Texas didn’t violate the Constitution when it banned Confederate-themed specialty license plates because such plates were “government speech.”

“Have you ever thought about it? I mean, there’s a whole body of case law out there, my gosh,” Kennedy asked during his exchange with Brindisi.

Senate Judiciary Chair Dick Durbin (D-Ill.) defended Brindisi after the hearing and told Bloomberg Law that “Lawyers look up the law all the time, and these pot shots of taking one question of the law and trying to judge whether a person is qualified—I don’t think it’s fair.”

Brindisi has served on New York state’s court of claims since 2022 after his appointment by Gov. Kathy Hochul (D).

He lost reelection to the US House in 2021 after a state Supreme Court judge ruled that his opponent, Claudia Tenney (R), had won the close race. A Democrat, Brindisi served one term.