After Reading This, You'll Know More Law Than Biden Judicial Appointments

AP Photo/Alex Brandon

Actually, considering the consistent caliber of legal acumen displayed by Joe Biden’s judicial nominees to district court seats, you may already know more about the law just by intuition. You would at least be on par with several of them even if you found yourself hazarding a guess on a legal question.

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Populating the Senate Judiciary Committee these days are some really sharp legal minds. Whether it’s Ted Cruz or John Cornyn, Tom Cotton or Josh Hawley, Lindsey Graham or Mike Lee, it’s about as close to a murderer’s row of legal firepower on the Judiciary that the Republicans in the Senate have ever put in the lineup. The only problem is Dick Durbin controls the gavel of the committee for the Democrats.

You will occasionally see viral videos out of Senate Judiciary whenever issues around the border come up, or witnesses from the administration like DHS Secretary Alejandro Mayorkas testify. Hearings often get testy when DOJ principals like Attorney General Merrick Garland appear, or maybe FBI Director Christopher Wray is in the hot seat. Whenever there are Appellate Court confirmation hearings, there will usually be at least a few key moments that make some news. And if there’s a Supreme Court confirmation hearing, it’s a standing-room-only, front-page event.

But when you get down to the mundane, perfunctory stuff like district court confirmation hearings, of which there are hundreds with every administration, precious little focus is placed on them. That’s why for my money, my favorite senator on Judiciary is someone who asks probative, but germane questions, usually in a friendly way, that demonstrate how unqualified and subpar nominee after nominee is that Democrats just rubber stamp to the floor for a final vote. That senator is John Kennedy of Louisiana.

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He’s developed a certain notoriety for the way in which he ensnares nominees by the most nefarious method known to man – asking them questions about legal proceedings that a first-year law student should know before moving on to Year 2.

Back in January of this year, Charnelle Bjelkengren, nominated by the President to sit on the bench for the Eastern District of Washington, was asked to explain the difference between Article II and Article V of the U.S. Constitution, the document by which she is to consult with in order to adjudicate legal matters that come before her.

Keep in mind, Ms. Bjelkengren graduated from Gonzaga Law School, but couldn’t articulate that Article II spells out the role and powers of the Executive Branch, and Article V describes the process in order to amend the U.S. Constitution. Democrats on the Senate Judiciary Committee passed her out on a party-line vote, but her nomination is still pending, largely because Kennedy exposed her to be a moron.

In March of this year, Ana de Alba had her turn in front of Kennedy during her confirmation hearing for the 9th Circuit Court of Appeals. She was asked to define the dormant Commerce Clause.

As any first-year law student who’s awake will tell you, the dormant Commerce Clause refers to the implicit prohibition in the Commerce Clause for state legislatures to enact laws that discriminate against or put undue burdens on interstate commerce. Ms. de Alba had not the first clue what it meant. Her nomination was passed in Judiciary on a party-line vote, and her nomination stalled for months on the full floor until last week when Chuck Schumer filed a cloture motion. And even with West Virginia Democrat Joe Manchin voting with the Republicans against cloture, and her ultimate final floor vote, de Alba is now technically part of the 9th Circuit awaiting her commission. Even Manchin knows she’s unqualified. She would have been confirmed sooner, though, had Kennedy not exposed the fact that she’s a moron. But because she was up for an Appellate Court seat and not a district court position, the importance of that seat warranted her being pounded through, not by her own merits. After Mitch McConnell and the Republicans changed Senate rules to clear the logjam of Democratic filibusters of Trump cabinet and judicial appointments, filibusters on Appellate and Supreme Court seats are no longer allowed. District courts can be delayed indefinitely so long as there are not 60 votes to proceed. Had she been a district court nominee, Kennedy would still have her safely on the sidelines.

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Also in March of this year, Kato Crews, nominated by Joe Biden to be a district court judge for the District of Colorado, sat before John Kennedy at his confirmation hearing. Keep in mind, his role as a judge would be to preside over trials. Knowing a thing or two about standard legal motions seems to be inherently important for someone applying for that job.

Of course, he had no clue what a Brady motion is. And if you don’t know, but aren’t still trying to be a judge anyway, a Brady motion is a legal request by the defense for the prosecution to turn over any potential exculpatory information they may have. It’s almost always filed as a standard motion in pre-trial, but if during a trial it appears the prosecution is withholding information it shouldn’t, a subsequent Brady motion is often filed again. Crews had no clue, yet it didn’t matter to Dick Durbin and the Democrats on Judiciary. They passed him out on a party-line vote. His final confirmation is still pending, largely because John Kennedy exposed the fact that Crews is a moron.

Lightning indeed struck for John Kennedy again this week in Judiciary, as Sara Hill, appointed by Joe Biden to fill the vacant seat for the northern district of Oklahoma, sat down for a little chat with the Louisiana senator as part of her confirmation hearing. The question? What’s the difference between a stay and an injunction?

Again, she’s allegedly going to be a judge. Judges issue stays. Judges issue injunctions. Both do different things. You would think that someone who is going to have those arrows in her judicial quiver would have a clue what each is and what they do. She doesn’t. And that’s after trying miserably to answer from cue cards she had next to her, which didn’t do her a bit of good. In case you’re curious, a stay is an order from a court to tell another court to stop a legal proceeding in its tracks. If a district court makes a ruling, and an appellate court does not agree with that ruling, it can issue a stay order which freezes that decision or proceeding by another court. An injunction is a ruling by a court that actually is an order to a party involved in a lawsuit to either do something or stop doing something, with legal penalties applied if they don’t comply with the injunction immediately. They’re very different, and again, to someone trying to be a judge, very basic legal orders.

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Dick Durbin, who has never met an incompetent Democrat nominee he didn’t like, smiled at Ms. Hill afterward and congratulated her on passing her “Kennedy Bar Exam.” Senate Judiciary will refer her out in a couple of weeks on a party-line vote, where she will languish indefinitely, thanks largely to Senator Kennedy for exposing the fact that she’s a moron.

My point to all this is there are plenty of places where Senate Republicans can use their filibuster power in order to parlay it into pressure for the administration to do something they want. When Alabama Senator Tommy Tuberville continues to block hundreds of military promotions, promotions that would otherwise pass with unanimous consent because there is no controversy surrounding them whatsoever, he’s taking the wrong people hostage for a just cause at exactly the wrong time.

Every one of these holds in the military might be the most pro-life member of the military ever known to have exited. They could be the most abortion-friendly people ever. Neither would affect their ability to kill people and break things, or train others to do the same, which is on what the military is supposed to be focused on. They’re active duty military members, not civilian policy setters in the Pentagon or the White House.

If Senator Tuberville wants to make his point, attach his demand to lift the abortion provision Team Biden officials have implemented at the Pentagon into judicial holds. Senator Kennedy has gone the extra mile by identifying plenty of other reasons to block them anyway. But the remedy for bad and immoral policy has always been court action. You don’t like the policy? Sue the Pentagon. Sue the Biden administration for violating the law with this policy. Making hostages out of the people in the military and upending their lives all the way down the ranks just disincentivizes people from re-upping in the military at a time when we’re about to have a hot war in the Middle East, God knows what, and for how long in Eastern Europe, and what looms in the Taiwan Strait, despite California Governor Gavin Newsom trying to give away San Francisco as a peace offering.

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Republicans should have learned from the off-year elections last week that the GOP still has a problem with suburban women. They haven’t won them back over, and there’s no sign that if Donald Trump is the party’s nominee, they’ll ever come back. What seems apparent is no matter how much women hate Joe Biden’s policies and performance, whether it be on education, inflation, economics, crime, border/immigration, or maybe foreign policy, they still seem to hate Donald Trump and the Republicans more because of the Dobbs decision. Even with Joe Biden in the 30s, it’s going to be hard to beat him in ’24 without women voters.

Throw in the fact that you’re using the military as pawns for something they have nothing to do with? You’re not just flirting with disaster on a war-fighting front, you’re flirting with annihilation at the polls in November.

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Ed Morrissey 2:20 PM | October 09, 2024
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