Senator Kennedy’s Judicial Pop Quizzes Trip Up Nervous Nominees

Fifteen lawyers sit on the Senate Judiciary Committee, but John Kennedy manages to get inside the heads of judicial nominees with his questions like nobody else.

The Louisiana Republican with a southern drawl and a former law professor’s Socratic method likes to pose questions about legal doctrines and courtroom procedure that have tripped up nominees from both parties.

Last month, Charnelle Bjelkengren asked the Biden administration to withdraw her name from consideration for a federal trial court seat in Washington state after she flubbed a quiz about Articles II and V of the US Constitution.

The risk of becoming Kennedy’s next victim and the butt of jokes on social media has united nominees across the Trump and Biden administrations.

“Every nominee who I’d talk to who was getting ready, this is the thing they’d think about—trying to get ready for the Kennedy quiz,” said Nick Xenakis, former chief counsel for Sen. Dianne Feinstein (D-Calif.) and general counsel for the Senate Judiciary Committee, who’s now of counsel at Covington & Burling.

Observers of judicial nominations, however, question whether a nominee’s inability to pass one of Kennedy’s quizzes reflects their incompetence for the federal bench.

Professor’s Classroom

Kennedy, a University of Virginia and Oxford University graduate, has drawn on his experience as an adjunct Louisiana State University law professor in posing questions to nominees since joining the Senate in 2017.

“I taught for 15 years, and these are the kinds of questions that I would expect my students to know the answer to,” Kennedy told Bloomberg Law in an interview.

He also has a former trial attorney’s knack for memorable quips and drama.

Sitting back in his chair, arms folded, or sifting through a stack of papers with his tortoise shell frames perched low on the bridge of his nose, Kennedy makes the shift from US senator to law professor.

Cold calling is the name of the game, and the families, friends, and colleagues of the judicial hopefuls are the captive audience.

One can’t predict what Kennedy will ask, but he likes to frame questions around petitions or cases pending before or recently decided by the US Supreme Court.

He asked US magistrate judge Matthew Maddox, a Biden nominee to Maryland’s district court, about Moore v. Harper and the independent state legislature theory, not long after the justices decided in the case that the US Constitution doesn’t grant state legislatures near-exclusive authority to shape federal election rules.

Maddox passed the quiz, with Kennedy following up his response with a Socratic exchange on the implications of Moore. “I want you to tell me if you think I’m wrong,” Kennedy said to Maddox during the July hearing.

Maddox was confirmed with Kennedy’s support.

Engaging in Kennedy’s hypotheticals around the law and legal precedent, while steering clear of commitments on legal issues, was encouraged during the Trump administration, according to Mark Champoux, who prepared nominees for confirmation as principal deputy assistant attorney general in the Justice Department’s Office of Legal Policy.

“He wants to understand what people are thinking,” Champoux, who’s now a partner at Davis Graham & Stubbs LLP, said, adding that nominees were guided to engage with Kennedy “sort of in the way you would with a law professor in a class—discussing legal issues and exploring the nuances of the legal doctrine that he might ask you about.”

There are two ways to frustrate Kennedy, Champoux said: providing inadequate answers in the eyes of the senator or not having an “answer to what he views as a basic question of Black-letter law.”

Mock Hearings

Trump Justice Department officials who prepped nominees said they’d direct them to past hearings and questions that Kennedy had asked, create practice questions that he may pose, and hold mock hearings in which staffers would portray different senators on the Judiciary committee, including Kennedy.

The goal was to not only give nominees a sense of the issues Kennedy was interested in, but to “get them in the frame of mind of answering unexpected questions,” said Jonathan Berry, who was a counsel in the Office of Legal Policy between 2017 and 2018 and is now the managing partner at Boyden Gray PLLC.

Ultimately, Berry said, a nominee’s command of the law comes from the professional experiences that got them to the point of becoming a judicial nominee in the first place.

In the case of Matthew Petersen, Donald Trump’s nominee to the federal district court in Washington, DC, the former Federal Election Commission chair had very little experience to draw from.

For five awkward minutes during his 2017 confirmation hearing, he admitted to his lack of litigation experience and wasn’t able to answer any Kennedy questions about trial procedure and the law. Petersen had exclusively practiced administrative law and never tried a case.

“Have you ever tried a jury trial?” Kennedy asked.

“I have not,” Petersen responded.

“Civil?”

“No.”

“Criminal?”

“No.”

Petersen also couldn’t define the Daubert standard, a method for admitting expert testimony, or explain a motion in limine, a formal request to exclude certain kinds of evidence.

He later withdrew his nomination.

Judicial Fitness

Kennedy said he doesn’t “think of this as winning or losing.”

“People have been nominated for a lifetime position. And so we’ve got to put the best women and the best men that we can on the bench,” Kennedy said. “That starts with knowing the law book from an L.L. Bean catalog,” invoking a turn of phrase he used in an Instagram reel from December touting his questioning of Joe Biden’s nominees.

Supporters of the senator’s style of questioning say there’s no excuse for judicial nominees to not have “a basic understanding of the Constitution and of everyday courtroom practice and procedure to do their jobs,” said Mike Davis, a former top Judiciary Committee nominations counsel during the Trump administration who now runs the Article III Project, a conservative legal group.

Detractors say Kennedy’s quizzes don’t reflect the realities of what it means to preside over a case as a judge or even practice the law generally.

Most nominees who spent the majority of their career as specialists may not have immediate knowledge of laws and procedures outside of their area of focus, said John P. Collins, a George Washington University law professor who studies judicial nominations. Collins did say that Petersen’s lack of experience was an exception.

Being a judge, much like being a lawyer, isn’t about having memorized some quantum of the law and recalling it on the spot, Collins added. Real world legal practice is about analyzing legal issues, researching the law, and thinking through how it applies to a given situation.

Kennedy “doesn’t seem to recognize that judges have access to libraries,” said Jake Faleschini, justice program director at the progressive advocacy group Alliance for Justice. “It is far more important that judicial nominees have the humility and research skills to look up the issues in each case than to have memorized them before a hearing.”

Champoux said it can be difficult to judge nominees by short spurts of questioning on issues that might be outside of their day-to-day practice “or might be something that they’d forgotten in the moment.”

For now the Kennedy bar exam, as Judiciary Chair Dick Durbin (D-Ill.) has called it, lives on.

“I’ve got plenty of new questions. I haven’t thought about some of them yet, but I will,” Kennedy said.