Judicial Update: Sen. Feinstein Returns, Controversial Nominees Advance Through Committee

May 12, 2023
Judicial Update | First Liberty

by Jorge Gomez • 6 min read

With narrow control of the Senate, President Biden and his party planned to make federal judges a priority for 2023. More than 100 nominees were confirmed during the first two years of the administration, outpacing Biden’s predecessors. But that pace is slowing down.

Much of it was due to the absence of California Sen. Diane Feinstein, who’s been battling health issues. Her absence caused gridlock and delays Senate Democrats and their narrow majority, particularly on the Senate Judiciary Committee, which is the first stop for nominees.

The 21-member Senate Judiciary Committee is comprised of 11 Democrats and 10 Republicans. A tie vote means a nominee fails. NBC News explains that “without Feinstein, Democrats can’t send judicial nominees to the full Senate for a vote unless they have some GOP help, and some of Biden’s picks have no bipartisan support.” Committee Chairman Dick Durbin of Illinois postponed several hearings because of her absence.

Sen. Feinstein returned to the U.S. Capitol earlier this week and cast her first vote in more than two months. With Sen. Feinstein back, Democrats advanced six judicial nominees through the Judiciary Committee, putting them on track for confirmation votes on the Senate floor. Among them is Charnelle Bjelkengren, selected for a district court judgeship in Washington. During her committee hearing, she failed to answer basic constitutional questions, including what Article II and Article V say.

Bjelkengren isn’t the only controversial nominee. Kato Crews, selected for a district court in Denver, also advanced. He was stumped by Sen. John Kennedy of Louisiana during a confirmation hearing. Crews failed to answer Sen. Kennedy’s question about a criminal law procedure known as a Brady motion. He was asked point-blank to “define what a Brady motion is,” but was unable to do so. He also did not answer when asked how to “analyze” one of these proceedings.

Liberal activists collectively groaned about Sen. Feinstein’s absence and called on her to resign. Democrats also tried to temporarily replace her on the Judiciary Committee, but Republicans blocked their efforts. Senate Majority Leader Mitch McConnell said that “the Administration does not face any obstacle to moving nominees who are remotely qualified for the job. People who are mainstream and qualified have a path forward.” He did, however, shed light on why the party in power tried to replace Sen. Feinstein:

“The stated reason, the supposed emergency, is that Senate Democrats are unable to push through the small fraction of their nominees who are so extreme and unqualified that they cannot win a single Republican vote in Committee.”

In an interview with Fox News, Sen. Kennedy described President Biden’s picks as radical and unqualified to serve for life on the bench:

“If you just go look at the hearings of these nominees, you will see they either got their law license at Costco or they didn’t pay attention in class. They don’t understand the Constitution. They don’t even know what’s in it. And if they do, they have demonstrated records as activists. They want to rewrite the Constitution every other Thursday to advance a social and economic agenda that the voters have not accepted.”

The staggering number of judges confirmed during President Biden’s first two years left many Americans worried. It appeared he was on a path to overhaul the judiciary by selecting judges based on identity politics (race, sexual orientation, etc.), instead of choosing nominees based on their judicial qualifications or commitment to the Constitution.

While President Biden has made some changes on the federal bench, he’s not likely to have the same impact as his predecessor. The number of vacancies does not favor Biden. He has about 70 fewer vacancies—approximately 50% less—compared to Trump.

As the Brookings Institution explains, “to achieve record numbers of confirmations in four years he will need some luck in the form of a vacancy influx and more, or at least more successful negotiations with home-state Republican senators over district nominees.”

This is sigh of relief for many Americans who respect the Constitution in the face of so many radical judicial picks. Our legal experts have documented multiple nominees whose records reveal that they hold positions far outside the mainstream. Many inspire little confidence they would protect religious freedom.

Americans who cherish religious freedom must be vigilant and stay informed. Several radical judicial picks are in the pipeline for confirmation, and given the President’s record of nominations, there could be more of them on the way. First Liberty will continue to provide you with the facts if any of them have a radical or unacceptable record.


Sen. Dianne Feinstein Returns to Capitol Hill, Casts Her First Votes Since February

NBC News reports: Sen. Dianne Feinstein, D-Calif., cast her first two votes on the Senate floor on Wednesday afternoon following a nearly three-month absence due to health issues. Upon her arrival on Capitol Hill, she was assisted into a wheelchair and greeted by Senate Majority Leader Chuck Schumer, D-N.Y. Feinstein told reporters that she feels “much better,” but she did not answer questions about why she decided to return or respond to calls from critics to resign.

Biden Judicial Nominee Stumped by Basic Constitution Questions Approved in Senate Committee

Fox News reports: A President Biden judicial nominee who struggled to answer fundamental questions about the Constitution has advanced through a Senate committee. The Senate Judiciary Committee on Thursday voted 11 to 10 to advance Judge Charnelle Bjelkengren, a Biden judicial nominee for the U.S. District Court for the Eastern District of Washington.

Feinstein’s Return Fails to Unstick Controversial Judicial Nominee

Politico reports: Dianne Feinstein showed up late to a Senate Judiciary Committee meeting Thursday, missing the panel’s first votes on judges since her heavily scrutinized return and causing a bit of a jumble as senators shuffled the agenda to accommodate her. And despite Democrats’ growing irritation during the 89-year-old senator’s absence over the need to delay certain judicial nominees, her presence wasn’t enough to unstick at least one of them.

Scoop: Biden’s New Strategy on Judges

Axios reports: The White House is deploying a new strategy to guide its judicial nominees through a tricky Senate process. Biden officials have begun a coordinated effort to work more closely with senators, including Republicans, about judicial vacancies in their home states. Biden’s new approach is born of necessity. In states with two Republicans, blue slip rules make it much easier to move faster when both senators are favorably disposed toward the nominee.

New York Times Editorial Board Calls on Sen. Feinstein to Resign: ‘Her Absence Is a Failure’

Fox News reports: The New York Times editorial board called on Sen. Dianne Feinstein, D-Calif., to resign from her position. The editors wrote:

“If she cannot fulfill her obligations to the Senate and to her constituents, she should resign and turn over her responsibilities to an appointed successor. If she is unable to reach that decision on her own, Mr. Schumer, the majority leader, and other Democratic senators should make it clear to her and the public how important it is that she do so.”

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