Senate Minority Leader Mitch McConnell (R-Ky.) on Tuesday criticized one of President Joe Biden’s judicial nominees for blanking on basic questions about the U.S. Constitution in her confirmation hearing last week.
Charnelle Bjelkengren, a county superior court judge in Washington and former assistant state attorney general nominated to a lifetime seat on the U.S. District Court for the Eastern District of Washington, couldn’t answer when quizzed by Sen. John Kennedy (R-La.) about Article II and Article V of the Constitution, and about a 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 she couldn’t recall what either of them did as she sat before the Senate Judiciary Committee last Wednesday.
“Goodness gracious,” McConnell said Tuesday on the Senate floor. “Is this the caliber of legal expert with which President Biden is filling the federal bench? For lifetime appointments? Is the bar for merit and excellence really set this low?”
Kennedy is known for his pop quizzes to judicial nominees that come before the committee. He’s done it to nominees from presidents in both parties, including one of former President Donald Trump’s nominees, Matthew Peterson, who withdrew his nomination after a particularly humiliating exchange with the Republican senator.
Kennedy told HuffPost on Tuesday that he plans to oppose Bjelkengren’s nomination because she failed to answer his questions.
“If you want to be an auto mechanic,” he said, “you gotta know what a spark plug is.”
Bjelkengren’s flub clearly wasn’t great for Democrats, but they are chalking the moment up to nerves that first-time judicial nominees often experience when testifying before Congress.
“The honest answer is there aren’t many members of the Senate Judiciary Committee who can answer all those questions,” Sen. Dick Durbin (D-Ill.), chairman of the committee, said of Kennedy’s propensity for asking obscure or curveball questions.
Asked if he thinks judicial nominees should be familiar with Article II of the Constitution specifically, Durbin said, “Of course, but what I’m saying is, you’re in the middle of a hearing, a little nervous to start with…. It happens.”
Sen. Patty Murray (D-Wash.), who put forward Bjelkengren’s nomination to Biden, is also standing by her pick.
“Judge Charnelle Bjelkengren was recommended to me by a nonpartisan judicial merit selection committee that includes Democrats and Republicans, she has strong support from the community she would serve, and she was rated qualified by the ABA,” Murray said in a statement to HuffPost. “When we make these kinds of decisions it’s important to judge these candidates holistically — we need to look at the whole picture. I’m working to continue to build support for Judge Bjelkengren, and I hope my Republican colleagues will also support her.”
The reality is that Democrats don’t need any Republicans to support Bjelkengren to get her confirmed. They now hold a 51-49 majority in the Senate, which makes a world of difference for confirming judges compared to the 50-50 split they had to contend with in the last Congress. It may only be the difference of one additional seat, but that one seat means Republicans can no longer hold up Biden’s court picks in committee or delay them on the Senate floor.
That said, how bad is it that a nominee to a U.S. district court seat couldn’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 it was a hiccup but nothing that should derail her confirmation given her background.
“District judges never face Article V issues and Eastern District of Washington judges rarely have constitutional questions,” said Tobias. “She does have a decade of experience as a judge and state assistant attorney general, so I think she will do fine.”
Republicans eager to pounce on Bjelkengren’s misstep are also hoping you’ll forget about how they unanimously confirmed piles of Trump’s judges who earned a rare and embarrassing “not qualified” rating by the American Bar Association.
In his four years in office, Trump nominated 10 people to be lifetime federal judges who were rated “not qualified” for the job, and Republicans went ahead and put eight of them on the courts anyway. For some context, none of President Barack Obama’s court picks got the rating in eight years. Six of President George W. Bush’s nominees earned the rating in his two terms.
Bjelkengren earned a “qualified” rating by the American Bar Association.
If confirmed, Bjelkengren would be the first woman of color to serve on the U.S. District Court for the Eastern District of Washington. She would also be the first Black woman to serve on any federal district court in the state of Washington.