Joe Biden has made it a hallmark of his presidency to nominate more women and “people of color” to the the federal judiciary than any other president. Sometimes that means not nominating the most informed people for the bench, or those who struggle to answer the most basic questions of constitutional scholarship–or even humanity–as long as the nominee checks certain boxes on the Biden qualification list even if their ignorance leaves senators scratching their heads.
Such as Biden Supreme Court nominee Justice Ketanji Brown Jackson who famously said in her confirmation hearing last year that she could not define what a woman is.
When Biden nominated Washington State Judge Charnelle Bjelkengren to the federal bench last September, the White House touted her diversity and boasted that she and the other nominees were “extraordinarily qualified, experienced, and devoted to the rule of law and our Constitution.” (Note, the nomination was resubmitted on Monday for the current Senate term.)
The President is announcing the nominations of eight new federal judicial nominees and his intent to nominate nine federal judicial nominees —all of whom are extraordinarily qualified, experienced, and devoted to the rule of law and our Constitution.
These choices also continue to fulfill the President’s promise to ensure that the nation’s courts reflect the diversity that is one of our greatest assets as a country—both in terms of personal and professional backgrounds.
For example, if confirmed, this slate would include:
The first women of color to serve on the United States District Court for the Eastern District of Washington and the first Black women to serve on a United States District Court in the state of Washington
The first South Asian judge to serve on the United States District Court for the Southern District of New York
The second Hispanic man to serve on the United States District Court for the Eastern District of New York
The only LGBT Article III judge actively serving on the United States District Court for the Northern District of California
Biden’s latest embarrassing nominee to the federal court could not answer simple questions that go to the heart of being a federal judge that were posed to her by Sen. John Kennedy (R-LA) at a Senate Judiciary Committee hearing on Wednesday. State Judge Charnelle Bjelkengren, nominated to be a U.S. District Judge For The Eastern District Of Washington state, was utterly stumped on questions about her knowledge of the Constitution and judicial philosophy. The other nominees struggled to answer Kennedy’s question on originalism but were not the facepalm embarrassment of Bjelkengren.
Kennedy, “Judge, on the far end, tell me what Article V of the Constitution does?”
Bjelkengren, “Article V is not coming to mind at the moment.”
Kennedy, “Okay. How about Article II?”
Bjelkengren, “Neither is Article II.”
Kennedy, “Do you know what purposivism is?”
Bjelkengren, “In my twelve years as an assistant attorney general, in my nine years as a judge, I was not faced with that precise question. 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, “Well, you’re going to be faced with it if you’re confirmed, I can assure you of that.”
Kennedy (a few minutes later): “Judge on the far end, can you tell me what the independent state legislature theory is? I’m just asking you not what your opinion of it, what is it–it’s before the Supreme Court now.”
Bjelkengren, “In my twelve years as an assistant attorney general, and…”
Kennedy, “Right (heavy sigh).”
Bjelkengren, “That doctrine was never presented to me.”
Short version:
Long version:
Fox News reported on Bjelkengren’s background (excerpt):
Judge Charnelle Bjelkengren, of Spokane County Superior Court in Washington State, was nominated by President Biden to serve on the U.S. District Court for the Eastern District of Washington.
…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 Bjelkengren to the Spokane County Superior Court, and she became the first female African American judge in Eastern Washington.
Helpful links and explainers for state Judge Bjelkengren:
Article V: Amending the Constitution
Article II: The Executive Branch
“Purposive theory is a version of interperting the law that suggests that common law courts interpret the legislation more on the purpose of the legislation over the exact letter of the law.” (Ballotpedia)
Columbia Law Q&A with elections expert Richard Briffault on the independent legislature theory (excerpt):
What is the independent state legislature theory that Moore v. Harper is seeking to affirm?
The independent state legislature theory grows out of the very specific language in the Constitution, in Article I, Section 4: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
The state legislature writes the rules for the election of members of Congress.
There’s further language that says that Congress can change those rules: “But the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
But ordinarily, the state legislatures write the rules.
The theory suggests that when the Constitution says “the legislature,” it means the legislature somehow independent of the rest of state government. The theory is a device designed to limit the ability of state courts, when they interpret state statutes or the state constitution, from imposing constraints or setting aside provisions of state legislation regarding federal elections.
In other words, if a state court says that something that the state legislature did regarding election law is unconstitutional under the state constitution, only the Supreme Court can reverse that and strike it down.
The response is that legislatures don’t exist outside of the full structure of state government, including the state constitutions that set them up and authorize them, which also includes state Supreme Courts.
However, the current Supreme Court gives a lot of weight to the literal constitutional text. They might make the point that in other places in the Constitution, it talks about “the states,” And here it talks about “the legislature.” That might mean only that the Founders wanted to make sure it was the legislature, not the governor, that acted for the state with respect to federal elections. But the text does say the legislature.
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