Joe Biden has been stocking the federal bench with an increasingly radical and unqualified raft of judicial nominees. Thus far, his choices have been waved through blindly by a compliant Senate. Biden’s nominees have been confirmed at a faster pace than those of Donald Trump or prior modern presidents.
Traditionally, senators have taken the view that the president is entitled to some deference in his choice of judges. This norm has been breaking down for some time, but vestiges of it still remain. Senator Lindsey Graham, the ranking Republican on the Senate Judiciary Committee, has voted with Democrats for over a dozen nominees this year. Biden’s judges have yet to get anything but a rubber stamp from Democratic senators who will be seeking the support of moderate and conservative voters next year in West Virginia, Arizona, Montana, Ohio, Wisconsin, Pennsylvania, and Nevada.
It is time for the Senate to say no to the worst of Biden’s judicial nominees. Three in particular demand scrutiny: Michael Delaney, Maria Araujo Kahn, and Charnelle Marie Bjelkengren.
Delaney, a former New Hampshire attorney general, has come under fire for his aggressiveness in representing a New Hampshire private school in a lawsuit filed by a 15-year-old girl alleging sexual abuse. We are generally inclined to give significant leeway to lawyers for their choice of clients, but this does not excuse them from all accountability for how they treat others with the power of the legal system. When the girl filed suit anonymously as a “Jane Doe” and requested that the court keep her name sealed to avoid death threats, Delaney threatened to expose her identity unless she agreed to a confidential settlement.
Even liberal Democratic senators were taken aback by Delaney’s record: Judiciary Committee chairman Dick Durbin said that Delaney had “a pretty rough hearing” that called for “a closer look at his record.” Another Democratic senator told CNN that the nominee “has real problems” and, in CNN’s words, “believes that neither Delaney nor the White House fully thought through this nomination.”
Justice Kahn, a justice on the Connecticut State Supreme Court nominated for the Second Circuit Court of Appeals, comes from the belly of the anti-free-speech beast. She spent years as a “diversity trainer” who compelled attendees to watch an animated video titled “How Microaggressions Are Like Mosquito Bites.” On the bench, she has suggested that the First Amendment “fighting words” doctrine should be expanded to allow the criminalization of more speech.
Judge Bjelkengren, a state trial judge in Washington seeking a life-tenured position as a district judge in the Eastern District of Washington, gave one of the most embarrassing performances in the history of the judiciary committee when she was unable to answer Senator John Kennedy’s elementary questions about the Constitution, including Article II (which governs the presidency, presidential elections, and the executive branch) and Article V (which governs the amendment process):
SENATOR KENNEDY: Judge . . . tell me what Article Five of the Constitution does.
JUDGE BJELKENGREN: Article Five is not coming to mind at the moment.
SENATOR KENNEDY: Okay, how about Article Two?
JUDGE BJELKENGREN: Neither is Article Two.
Minimal familiarity with the United States Constitution seems to us to be the least one can ask from a federal judge, who is supposed to be learned in the law. Given some of Biden’s executive actions of late, perhaps he prefers judges with only the vaguest familiarity with the Constitution, but there is no need for the Senate to agree.
Holding the line against at least one of these nominees would be a good start in sending a message to the president that the Constitution created another branch of government with a say in judicial nominations. All three ought to be rejected.