Sen. Kennedy stumps Biden judicial nominee with basic questions about Constitution

[Jose Garcia]

Source: NBC News

A judicial nominee of President Joe Biden was apparently stumped by Sen. John Kennedy's basic questions about the Constitution during her Senate confirmation hearing Wednesday.

Spokane County Superior Court Judge Charnelle Bjelkengren, who was nominated to be the U.S. district judge for the Eastern District of Washington, couldn't answer when Kennedy, R-La., pressed her about articles of the nation's founding document.

“Tell me what Article V of the Constitution does,” Kennedy asked as he began his round of questioning.

“Article V is not coming to mind at the moment,” Bjelkengren replied.

Read more: https://www.nbcnews.com/news/amp/rcna67703

[Freethinker65]

1. Refresh my memory, in your own words, Senator Kennedy

Would have been a better response.

[Ocelot II]

2. She should have known. There's no excuse for a federal judicial nominee

not knowing the answer to that basic question about the Constitution (V is about constitutional amendments, II is about the executive branch).

[hlthe2b]

13. Yup. Absolutely. Who the hell vetted her?

[Effete Snob]

18. Yah

I'd have said "States" or "Amendments"

Since most of the action is in the first three or in the amendments, IV and V are ones that you don't spend a whole lot of time thinking about, but still.

[Freethinker65]

26. She is not nominated for a Supreme Court seat.

If Kennedy asked her about her interpretation of how the US Constitution itself could be amended/re-ratified and she had no clue, that would be more troubling.

All nominees have been prepping by combing through their own records of writings and decisions for potential gotcha questions. Could she possibly have just forgotten which Article was which in the Constitution. At least she didn't answer something about the 7th Amendment! The horrors!

[hlthe2b]

27. And you somehow think a FEDERAL judge should not know the constitution? Really?

That is ridiculous. She may have "frozen," but as I said previously whoever vetted her should have made SURE she was well versed in the constitution as well as more routine court procedures and her own case histories.

[Ocelot II]

31. All federal judges should be familiar with these issues, not just Supreme Court nominees.

How do you think cases interpreting the Constitution get to the Supreme Court? Because a couple of levels of federal judges had to decide them first. I wouldn't call blanking on these questions disqualifying, but I'm a bit surprised she didn't study up on the basics of federal litigation before the hearing.

[Freethinker65]

42. Agree. In order to make rulings on a case, Judges review the law and constitution as it pertains.

She may or may not be qualified for the position, but her honest answer to this one question is not as upsetting to me as it is apparently for most on DU. I also will admit I know nothing more about her or her confirmation hearing than what I have read on DU. Is she qualified? I do not pretend to know.

I do live two doors down from a Federal Judge appointed by Clinton. At a block party he wouldn't say much about his position, but did say going through the process after being nominated was pure hell. He said he often questions himself if he would do it again if he had known.

[Phoenix61]

49. They decided them by careful review of applicable case law etc. nt

[Ocelot II]

52. A sitting federal judge shouldn't have to look up what is covered

in the articles of the Constitution. That's basic knowledge, like a doctor should know where a person's heart is located and doesn't have to look that up before examining a patient.

[Trueblue Texan]

58. I agree. She should not have been nominated. nt

[JohnSJ]

3. I would love one of the news media to ask Kennedy about a specific article of the Constitution, and

see if that POS could answer it

[Ocelot II]

5. Don't let Kennedy's Foghorn Leghorn demeanor fool you.

He knew the answers, and he damn well should have. So should she.

[Phoenix61]

48. He knew the answers because he had the opportunity

to look them up. Judges are never required to make snap decisions nor would we want them to.

[Ocelot II]

50. The general topics of the articles of the Constitution isn't snap knowledge

that a federal judge should have to look up. It's basic information that you learned in your first year of law school.

[Phoenix61]

51. So you have instant recall of everything you learned

in your first year of college? The stuff you haven’t used since then?

[Ocelot II]

53. No, but I didn't have to look up the topics covered by articles II and V

of the Constitution. I learned it in my constitutional law course in the late '70s and because it's so basic I didn't forget it.

[hlthe2b]

15. Kennedy is a fake "good ole boy." He is an Oxford-educated attorney

[hibbing]

21. Who of course calls any half way liberal, Elite, Latte Drinking blah blah blah n/t

[walkingman]

4. She should have said -

"Article 5 is the article in the constitution that some right-wing nutjob are trying to use to call a constitutional convention to sidestep Congress and draft their own constitutional amendments. It has been pushed by groups like ALEC and of course the Koch brothers BUT it's not gonna happen if I have anything to do with it" - NEXT QUESTION?

[bullimiami]

11. or. im a judge not a constitutional scholar. let me refresh my memory and we can have a discussion.

and. youre a lawyer. how about I ask you a gotcha question of my own.

[Ocelot II]

20. That was Constitutional Law 101. She should have known the answers

right off the top of her head. Hell, I knew the answers and I'm not even a judge.

[bullimiami]

78. Disagree.

[Polybius]

46. Yeah, but then she loses Manchin and Sinema's vote

[enough]

6. Yikes

[Elessar Zappa]

7. Fuck Kennedy but she should have known the answer.

[Ocelot II]

14. And if a Republican judicial nominee had responded that way

to the same question asked by a Democratic senator, we'd all be up in arms ranting about unqualified judges. Sauce for the goose and all that - this judge should have known the answers to those Con Law 101 questions.

[Captain Zero]

41. If we ask it, it's weaponizing the hearing.

Right?

[underpants]

8. Amy Coney Barrett couldn't name the 5 rights in the First Amendment

[Ocelot II]

19. That doesn't mean Democrats should also appoint judges who don't know the Constitution.

[underpants]

38. Got that.

I meant that’s it’s not the first time and on a different level of position.

[malthaussen]

33. "tu quoque" is a logical fallacy no matter who employs it. n/t

[underpants]

37. I got that.

I meant that’s it’s not the first time and on a different level of position.

[Farmer-Rick]

59. Frat boy Brett Kavangh was stumped easily enough.

"Kamala Harris seemed to stump Brett Kavanaugh with a question asking if there are any laws that let the government regulate the male body"
https://www.google.com/amp/s/www.insider.com/kamala-harris-seemed-to-stump-brett-kavanaugh-abortion-question-2018-9%3famp

"Kamala Harris Stumps Brett Kavanaugh with Marriage Equality Question"
https://www.advocate.com/politics/2018/9/06/kamala-harris-stumps-brett-kavanaugh-marriage-equality-question

It seems pretty easy to stump most any judge. You have to find their weak points.

[snowybirdie]

9. old Foghorn Leg horn

is such a clever guy. Did he attempt to stump any Trump judges? So many of them were deemed unqualified by the Bar Association

[Grins]

10. Amy Coney Barrett couldn't name the five freedoms protected by the 1st Amendment

Then Senator Ben Sasse asked Barrett to name the five freedoms.

Barrett listed speech, press, religion, and assembly then looked puzzled and asked: “What else am I missing?”

The right “to petition the government for a redress of grievances,” honey.

And since the man who nominated her had publicly spoke against protests and vowed use police and military to quash them, that might be effing relevant, no?

Guess how Senator Jubulation T. Cornpone...(Oops Sorry.) John Kennedy voted on that confirmation...?

[Ocelot II]

23. That doesn't excuse an appointee nominated by a Democrat from knowing

basic information about the Constitution. We don't want to be like the GOPers, do we?

[MerryHolidays]

63. What is so basic about memorizing the number of a section of the Constitituion?

I took "Constitution 101," and it was an open-book exam. You had to know the concepts, not the citation, as you can always look them up.

If she had flubbed a question like "discuss separation of powers," I would be far more worried. It was a gotcha' question meant to embarrass her.

[snowybirdie]

12. old Foghorn Leg horn

is such a clever guy. Did he attempt to stump any Trump judges? So many of them were deemed unqualified by the Bar Association

[Ocelot II]

16. Fuck Kennedy but she should have known the answers.

[NYC Liberal]

32. Yep, he has.

https://apnews.com/article/district-of-columbia-north-america-donald-trump-confirmation-hearings-john-kennedy-564747d1cb10449e842094c7c282b48f

[RandySF]

17. Didn't Republicans push candidates who never practiced law?

[republianmushroom]

22. well by republican standards this makes this person eligible for the Supreme Court.

[jmowreader]

24. Right-wing gotcha question

A judge is going to know the parts of the Constitution that she uses in her work. (Charnelle Bjelkengren was the first Black woman judge in Eastern Washington.) Kennedy asked her about Article V (amendment of the Constitution) and Article II (powers of the executive branch) - neither of which are Constitutional Articles that should EVER come up in a court case in the Eastern District of Washington!

As far as I know Kennedy didn't ask her about the Third Amendment, which is another gotcha question right wingers love to use. (This is the one that says the Army can't turn your house into a barracks without your permission.)

On the other hand, if he would have asked a question about a Constitutional provision that might factor into a court case in the Eastern District, like the Interstate Commerce Clause or the First, Second, Fourth through Eighth, or Thirteenth through Fifteenth Amendments, she'd be all over those.

[Ocelot II]

29. A judge who is a candidate for the federal bench should know basic constitutional law.

This is first-year law school stuff. Even if the judge doesn't encounter issues relating to Articles II or V in her regular work as a state court judge - a state court judge wouldn't run into many cases involving any sections of the federal constitution, not even the Commerce Clause - those issues are likely to come up in her work as a federal judge. I have no doubt that this judge is a smart, competent person, and I certainly would not call her inability to answer the questions disqualifying, but they are not "gotcha" questions. If a GOP candidate had been stumped when asked the same questions we'd all be howling like banshees.

[malthaussen]

35. I agree with you.

Article 5 is no obscure article, it's pretty important.

-- Mal

[onenote]

45. You can't be serious in contending District Court judges have no occasion to address Article II

If you attended law school, you must have been out sick a lot.

[Torchlight]

25. If her mind blanked, I can easily overlook it.

A brain freeze has happened to just everyone I know at one time or another, and mine have been doozies on a couple of times (blanking on my late father's name to the point it was just quicker to look it up)

If it's simply ignorance of the fundamentals, well, I think that earns a deep reflection of her academics, relevant court transcripts, etc. before any further movement on her.

[Phoenix61]

28. Oh please. Being able to recall the name of something doesn't

mean you don’t know what it does. IMHO, she prepped for being asked serious questions by serious people instead of stupid questions by stupid people. As far as the “that’s constitutional law 101” crowd how much of your first year of college do you have immediate recall of.

[Lucky Luciano]

40. Google software engineers are expected to know...

…all of their algorithms and data structures from college days no matter how senior.

Big time judges requiring senate approval should also know their basic shit front to back before even getting to the deeper questions.

When I interview someone who fails the basics, I become disinterested in asking the more advanced questions.

[Phoenix61]

47. As someone with a BS in computer science I believe you are wrong.

That field changes rapidly. Much more important to stay current. As far as the judge,
“The district courts are the general trial courts of the federal court system. Each district court has at least one United States District Judge, appointed by the President and confirmed by the Senate for a life term. District courts handle trials within the federal court system – both civil and criminal. The districts are the same as those for the U.S. Attorneys, and the U.S. Attorney is the primary prosecutor for the federal government in his or her respective area.

District court judges are responsible for managing the court and supervising the court’s employees. They are able to continue to serve so long as they maintain “good behavior,” and they can be impeached and removed by Congress. There are over 670 district court judges nationwide.”

Exactly how does having rapid recall of a random article apply to any of the job responsibilities of a district court judge?
I stand by it was a stupid question asked by a stupid person.

[Lucky Luciano]

55. Not a random article or obscure line in the constitution at all

Google, amzn, facebook, etc ask tons of Leetcode style questions in their interviews.

[Phoenix61]

56. And one she may not have used in her career even once.

No idea what Leet ode has to do with anything.

[Lucky Luciano]

57. Ok - if she hasn't used it once, then probably not qualified.

There are obviously better candidates out there that know their shit and can apply it well.

Leetcode comment was disagreeing with your comment about software engineers. Of course one needs to stay current, but as a baseline, one is expected to be able to implement the basic data structures off the top of their head - eg make a red black tree - here is a whiteboard. Go.

Asking about article 5 in the constitution was more akin to asking about the big O complexity of said tree’s insertion and access algorithms - like you’d almost be embarrassed to ask a senior person that because of course they know, but it is surprising who gets past the initial gatekeepers sometimes.

Continuing the analogy to your field, a bullshit question would be asking about some minutiae in the C++20 standard that differs from the C++17 standard. Asking about article 5 is the equivalent to asking what a linked list is. Of course you know.

[onenote]

67. Article II- The executive power.

Every law student in America has studied cases that turn on the scope of Article II.

I've practiced law for 40 years and have never had a case that turned on Article II, but I sure as hell know what it is.

[MerryHolidays]

76. Yup, but as noted below, I doubt you know the citation to the US Reports for Youngstown Sheet & Tube

The relevant issue is the SUBSTANTIVE knowledge of the US Constitution, not regurgitating a particular article or amendment number.

Do you have any information indicating the candidate failed on the substance? If so, please share. That might make a difference to our views, rather than an ability to memorize citations.

[myohmy2]

30. apply...

...the puke judicial nominee.test...

"Is she a good Democrat?"

...yes, then no problem...

[malthaussen]

34. If she were a GOP judical nominee, this board would be all over her...

... like white on rice. And Article Five is no small potatoes: it sets forth the procedures to amend the Constitution. Methinks she should know this.

-- Mal

[dsc]

36. I would be disappointed in a civics student who couldn't answer that question

let alone someone in line to be a federal judge.

[Lucky Luciano]

39. I hate Kennedy, but it seems like he did show this person is utterly unqualified.

They should withdraw until a competent person is found.

The question was reasonable. Actually, it is kind of embarrassing to ask because of course the interviewee knows, right?!

[Ocelot II]

54. I'm not sure she's completely unqualified; she seems to have a solid background

as a state court judge. But it's kind of embarrassing that she didn't know the answers to those questions. Of course she can look them up, and of course she would have learned them at one time. I guess my concern is more that she should have realized that she would be asked questions about the Constitution but didn't prepare for that.

[appmanga]

43. I have to admit...

...I've read the Constitution many times, and of the top of my head I can't remember what Article V does, or Article IV for that matter.

Back to reading...

ETA: I didn't want guess, but I was 90 percent sure Article IV was the states. I was only five percent sure Article V was re amendments, but should have been able extrapolate that.

[copperearth]

44. Senator John Kennedy has done this before to nominees

He likes to show his "Constitutional Law prowess" as if he wrote the document himself. Unfortunately he fails when applying the Constitution to reality. He reminds me of the child who floors elders with quotes or memorized material but he is almost a jackass. He can memorize like a parrot but like a parrot he does not have reasoning capabilities. There is one Judaical nominee after another that he has tried to stump with 'trick' questions. These judges are not expecting questions like these, and t might take them by surprise. She probably knows more about real law than Kennedy will ever know. He is merely showing. He was a Rhodes Scholar but that doesn't seem to have penetrated his brain too deeply.

[Mark.b]

60. Were I in here shoes, I would. Have been embarrassed...

I hate gotcha questions. But, these weren’t gotchas. Had she known these, it would be a non-story.

98% of us would have guessed she would get these right had we an advanced copy of the questions.

Not the end of the world. Move on.

[Martin68]

61. You would think a nominee would bone up a little on the Constitution before being questioned.

Every judge should have at least a vague idea of the gist of every article in the Constitution in addition to the basic tenets of the law.

[MerryHolidays]

62. So, Amy Coney Barrett doesn't know what the First Amendment covered, but that's ok?

https://www.forbes.com/sites/nicholasreimann/2020/10/14/amy-coney-barrett-forgets-right-to-protest-is-a-first-amendment-freedom/?sh=7f5c7f8412ed

Are we seriously jettisoning this candidate for a memorization issue? Senator John "Mr. Haney from Green Acres" Kennedy was asking ridiculous questions.

[onenote]

64. Nope. Neither is "okay."

[MerryHolidays]

65. Missing a memorization question doesn't make a candidate unfit of the judiciary

If she didn't know what "separation of powers" was, I might think otherwise.

This is hardly that.

[onenote]

66. Not knowing what Article II of the Constitution is -- not a "memorization"" question.

It's a fundamental knowledge question.

[MerryHolidays]

68. Knowing what is IN it is relevant, not what the specific citation.

The former is substance, the latter is trivial.

[onenote]

69. That's absurd.

Not how lawyers operate. Sorry.

[MerryHolidays]

70. Well, since I have been a lawyer for several decades, it's not "absurd"

Sorry. Stop going after D candidates.

[onenote]

72. I've been one for forty years and I wouldn't want to work with a lawyer that didn't know Article II

vests the Executive power in the President.

And I wouldn't want to work with one that accuses lifelong Democrats of "going after D candidates" (and I'm not the only one you're leveling that builshit attack against since there are others on this thread who share my opinion) for acknowledging the obvious -- namely, this was a faux pas -- certainly as much of one as the ones that tripped up repub nominee Matthew Petersen when he couldn't answer basic legal questions posed by Kennedy.

[MerryHolidays]

75. Chill. There are equally many others that disagree with you.

I had sent the previous response, but if you want to be the one who has the monopoly on what is right and what is not, let's go.

You clearly are an expert on judicial nominations. Are you actually saying this candidate did as badly as, or worse, than Matthew Petersen?

[MerryHolidays]

71. Are you a lawyer? Just asking. n/t

[onenote]

73. Yes. Became a member of the bar in 1978. Law Review. Honors graduate

I've worked in government and have been a partner in a major law firm.

Every law student studies cases such as the landmark case, Youngstown Sheet and Tube Co. v. Sawyer, which turned on whether Truman's seizure of the steel industry was consistent with his Article II power.

[MerryHolidays]

74. Ok. Fair enough!

I've done similar. A bit less experienced than you, but we clearly have common ground.

Onenote: my point is that "Senator" John Kennedy (lord, how I hate that our wonderful President shares a name with this very well educated buffoon from Louisiana), asked the question the wrong way. Had he asked how the US Constitution can be amended, and the candidate didn't know, that's decidedly different to me.

Asking the judge whether she agrees with Youngstown Sheet & Tube is decidedly different than knowing the citation for the case is 343 U.S. 579 (1952).

I know that's an extreme, but there are plenty of us, decades after law school, who might not know what Article X of the US Constitution is, but, as I agree, we damned well better know what the principles are.

Good to meet you. Wish you a good night.

[onenote]

77. I agree that asking for the citation to a particular case would be over the line.

But being asked what Article II of the Constitution does and answering that "it doesn't come to mind" is not a good look -- indeed, imagine if the question had been "what does the First Amendment do" and the answer had been "it doesn't come to mind". Really no difference in those two situations, at least for a well trained, experienced attorney that follows legal developments.

Am I saying she shouldn't be confirmed? No, I don't think it is disqualifying.
But I am saying it was an embarrassing faux pas, just as it was an embarrassing faux pas when Barrett could only name four of the five freedoms enumerated in the First Amendment.

[MerryHolidays]

79. Good points, and on that, I think we agree

Yes, the candidate should have known this, but it's not a disqualifying event.

[BeyondGeography]

80. Hate when one of our own looks like an empty suit

That’s the other party’s territory.

The Constitution is relatively brief (4400 words). There are seven articles. No excuse to utterly whiff on two of them. The nominee gave the impression she couldn’t have explained any of them. Inexcusable.