Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.
Today’s question: Who appoints federal judges?
WASHINGTON – Last November’s midterm elections saw mixed results for President Joe Biden and his allies in Congress, but they were an unequivocal success in one respect: By expanding their narrow majority in the Senate, Democrats ensured they could keep filling judicial vacancies with Biden’s nominees.
Article II of the U.S. Constitution gives a president, with the “advice and consent” of the Senate, the power to appoint judges to federal district courts, appellate courts and the Supreme Court. In practice, that means a president proposes judicial nominees to the Senate Judiciary Committee, whose members vet the candidates before all senators vote on each nominee.
Last month, in an episode that speaks to how that process has grown increasingly partisan, that same constitutional provision served as an unexpected obstacle on a Spokane County judge’s path to the federal bench.
In her confirmation hearing on Jan. 25, Charnelle Bjelkengren, a Spokane County Superior Court judge nominated by Biden to fill a vacancy on the U.S. District Court for the Eastern District of Washington, failed to answer when a GOP senator asked her to explain Article II, which defines the powers of the presidency, beyond simply appointing judges.
Bjelkengren also punted when that senator, John Kennedy of Louisiana, asked her to explain Article V of the Constitution, which lays out the process for amending the nation’s foundational document, and the concept of “purposivism,” a judicial philosophy that aims to interpret a law’s original purpose rather than its literal meaning.
“In my 12 years as an assistant attorney general, in my nine years serving as a judge, I was not faced with that precise question,” Bjelkengren told Kennedy. “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.”
In the days that followed, Bjelkengren’s responses drew the attention of congressional Republicans and their media allies, who argued the Spokane County judge is unqualified to serve in a federal court. In a speech on the Senate floor Jan. 31, Senate Minority Leader Mitch McConnell of Kentucky said she had “flunked” questions on subjects that “high schoolers across America learn each year.”
“Is this the caliber of legal expert with which President Biden is filling the federal bench, for lifetime appointments?” McConnell said. “Is the bar for merit and excellence really set this low?”
Defenders of Bjelkengren have pushed back against the criticism from Republicans, arguing that her responses to Kennedy’s questions in the confirmation hearing don’t reflect her qualifications. Unlike 10 of Trump’s nominees for the federal bench, Bjelkengren was rated “qualified” by the American Bar Association.
Sen. Patty Murray, a Washington Democrat who along with Cantwell recommended that Biden nominate Bjelkengren, introduced the Spokane County judge in her confirmation hearing and urged her fellow senators to confirm her.
“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 here in Eastern Washington, and she was rated qualified by the ABA,” Murray said in a statement. “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.”
Some right-wing media figures have gone further than McConnell, alleging that Bjelkengren, who would be the first Black woman to serve on a federal trial court in Washington, was nominated only because of her race.
Fox News host Tucker Carlson cited her nomination in a segment in which he complained that Biden has nominated only five white men to the federal bench. A journalist who was fired by the conservative National Review in 2012 for writing an article urging white parents to warn their children that Black people are dangerous echoed that sentiment on the white nationalist website VDARE.
As a candidate, Biden promised to use his judicial nominations to reverse the impact former President Donald Trump had in reshaping the federal judiciary. Of the 226 federal judges appointed by Trump, 84% were non-Hispanic white, according to the Pew Research Center, while that demographic makes up about 59% of the U.S. population, according to the Census Bureau.
On Feb. 14, after the Senate confirmed its 100th Biden nominee as a federal judge, Sen. Maria Cantwell, D-Wash., noted that 76 of those first 100 judges are women and 68 are people of color.
“It is good to see this Administration’s commitment to rectifying historical underrepresentation on the bench,” Cantwell said in a statement. “Led by Ketanji Brown Jackson, the first Black woman and the first former federal public defender to serve on the Supreme Court, the judges come from diverse backgrounds, believe in upholding well-established legal precedents, and sit well within the mainstream of American legal thought.”
In Biden’s first two years in office, the Senate’s Democratic majority has confirmed the president’s judicial nominees at a rapid clip, outpacing former President Donald Trump over that same period, according to a tracker maintained by the Heritage Foundation, a conservative think tank. As of Thursday, senators had confirmed 105 of Biden’s nominees, more than the 85 nominees confirmed in the same number of days under Trump but fewer than the 128 appointed by Bill Clinton in that time.
“He pledged to counter what Trump had done, and I think he’s made substantial progress,” said Carl Tobias, a law professor at the University of Richmond.
But Tobias pointed out that Trump appointed an unusually large number of federal appeals court judges, most of whom replaced Democratic appointees.
Russell Wheeler, an expert in the federal judiciary at the Brookings Institution, a nonpartisan think tank, said that Biden has largely filled vacancies in states like Washington that have only Democratic senators.
Notably, Biden’s nominees have faced more resistance than those of other recent presidents, according to the Heritage tracker. An average of 39.3 senators have voted against Biden’s nominees, while an average of only 18.2 voted against Trump’s and 3.9 against candidates picked by Barack Obama. Judicial nominees put forward by George W. Bush, Clinton, George H.W. Bush and Ronald Reagan received an average of just one “no” vote or less.
After Democrats eliminated a 60-vote requirement for confirming most nominees in 2013 and Republicans did the same for Supreme Court justices in 2017, confirming federal judges requires only a simple majority of the 100 senators.
According to Murray’s office, that selection committee is chaired by Benton County Prosecutor Andy Miller and includes Pam DeRusha, a retired Assistant U.S. Attorney for the Eastern District of Washington; Inga Laurent, a Gonzaga Law professor; Andrea George, a trial attorney and former tribal court judge; and Yakima trial attorney Joe Sexton.
Wheeler said he found Kennedy’s questions to Bjelkengren “a little unfair,” but pointed out that the Louisiana senator asked similarly pointed questions to a Trump nominee, Matthew Peterson, who withdrew his nomination in 2017 after failing to answer questions from Kennedy.
“Becoming a federal judge is inevitably a learning experience,” Wheeler said. “The fact of the matter is that federal judges are generalists. Once appointed, they’re expected to decide cases on a lot of stuff that they may not have encountered since law school.”
Tobias said Bjelkengren’s stumble suggested that she wasn’t adequately prepared her for the confirmation hearing, where hostile senators often ask “trick questions” aimed at throwing a nominee off.
“To some extent, I think the White House team didn’t prepare her well for Kennedy’s questions, but they’re sometimes so off-the-wall that it’s hard to prepare for all of that,” he said. “I just don’t think that they’ve given her a really fair shake, and I think that she did all right, except for those questions from Kennedy, in that hearing. And I think they should look at her experience instead of that one episode.”
Jacob Rooksby, dean of Gonzaga Law School, said in a statement that what Bjelkengren – a Gonzaga Law graduate – faced in her confirmation hearing is “emblematic of how polarized and fraught judicial appointments and the confirmation process have become.”
“She was asked ‘gotcha’ questions for the purpose of creating a headline,” Rooksby said. “Most attorneys and judges cannot describe the more obscure Articles of the Constitution, which include the two she was asked about. Article III pertains to the judicial branch and is the Article that attracts the most attention in law school and in the profession, but tellingly she was not asked about it.”
Law students are not told to memorize the Constitution, Rooksby said, and judges are not expected to repeat it from memory. Instead, they must study and interpret statutes and common law and “provide sound and understandable legal advice in an ever-changing world.”
“To suggest that Judge Bjelkengren is unqualified because of her responses in the hearing is to elevate political theater above all else,” Rooksby said, praising her “sterling” record as an assistant attorney general, administrative law judge and superior court judge.
“Senators and members of the public should be hesitant to follow the dog whistle that Judge Bjelkengren is somehow unfit, unqualified, or not intelligent enough to serve as a federal district court judge because of her answers to loaded questions,” Rooksby said. “Judge Bjelkengren was treated unfairly in the confirmation hearing, and we all deserve better.”
It’s unclear when Bjelkengren’s nomination will come up for a vote in the Judiciary Committee and subsequently in the full Senate. Ultimately, however, Democrats could confirm her without any Republican votes.