Yesterday, I wrote about a simple question posed to a Supreme Court nominee who was so “woke” that she couldn’t define what a woman was – even though she is one.
That was the unusual face-off between Sen. Marsha Blackburn and Ketanji Brown Jackson, who was approved for a lifetime appointment to the high court bench.
Last week, it was Sen. John Kennedy’s turn to grill one of Joe Biden’s lesser judicial nominees on the basics of the Unted States Constitution.
She failed miserably. And the answers were found in the basic text the Constitution – laid out in the pamphlet-sized original, rather than the basic dictionary Judge Jackson was not familiar with.
Think of it! She didn’t have a clue. Nothing. She was not familiar with the document – at all! How embarrassing for her.
Judge Charnelle Bjelkengren, of Spokane County Superior Court in Washington State, was nominated by Biden to serve on the U.S. District Court for the Eastern District of Washington. During her confirmation hearing before the Senate Judiciary Committee, Bjelkengren could not answer Kennedy’s questions about the intent of different parts of the U.S. Constitution and how courts might interpret laws.
“Tell me what Article V of the Constitution does,” Kennedy instructed Bjelkengren at the beginning of his question time.
“Article V is not coming to mind at the moment,” the judge said.
The founders, brilliantly, were men of few words. Article V reads, in its entirety:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
“How about Article II?” Kennedy followed-up.
She had not heard of Article II either. It deals with the way we choose a president of the United States.
Next, Kennedy asked if Bjelkengren knew what “purposivism” is, but she was again unable to give an answer. Purposivism, or the purposive approach, is a philosophy of interpreting the law that emphasizes the law’s purpose – advocating for judges to enforce the spirit of the law when it contradicts with the text of the law, according to Harvard Law professor John F. Manning, writing in the Columbia Law Review. In contrast, textualists argue that judges must strictly adhere to the law’s enacted text, when it is clear.
A little tougher – but not for judges, you would think.
However, the question was lost on Bjelkengren.
“In my 12 years as an assistant attorney general, in my nine years as a judge, I was not faced with that precise question,” Bjelkengren said. “We are the highest trial court in Washington state, so I’m frequently faced with issues that I’m not familiar with, and I thoroughly review the law, I research, and apply the law to the facts presented to me.”
Kennedy did not seem impressed. “Well, you’re going to be faced with it if you’re confirmed, I can assure you of that,” he said. He was right as rain.
Bjelkengren is a graduate of Mankato State University and received her law degree from Gonzaga University School of Law in 2000. She previously served as an assistant attorney general for the Washington Attorney General’s Office.
In 2013, Bjelkengren became an administrative judge for the Office of Administrative Hearings in Washington state.
In 2019, Democratic Gov. Jay Inslee appointed her to the Spokane County Superior Court, and she became the first female African American judge in Eastern Washington.
But her chief qualifications are obvious: She’s a Democrat.
As for Kennedy, he defended himself after the hearing.
“Some of these nominees that have been forced in the last two years have no business being anywhere near a federal bench – they don’t have any business being anywhere near a park bench,” he said. “I don’t ask the nominees, ‘Do you support this precedent or you support that precedent?’ I asked them to tell me about the law, tell me what the Constitution says, tell me about the relationship between the federal judiciary and our administrative agencies. These are all very basic questions.”
Looks like Biden ought to buy a few of those pocket Constitutions for his upcoming federal judicial nominees. They could learn a thing or two.
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