Joe Biden’s presidency has been characterized by nominating more women and “people of color” to the federal judiciary than any other president. Sometimes that means not nominating more knowledgeable people to the bench, or those who struggle to answer basic questions of constitutional scholarship—or humanity—even if their ignorance leaves senators until the nominee checks off a few boxes on Biden’s eligibility list. They scratch their heads.
Biden Supreme Court nominee Justice Ketanji Brown Jackson famously said in her confirmation hearings last year that what a woman is cannot be defined.
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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 “exceptionally qualified, experienced and dedicated to the 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 intention to nominate nine federal judicial nominees — all of whom are exceptionally qualified, experienced, and committed to the law and our Constitution.
These choices continue to fulfill the President’s promise to ensure that the nation’s courts reflect diversity — one of our greatest assets as a country, both in personal and professional backgrounds.
For example, if confirmed, this slate would include:
First women of color to serve on the United States District Court for the Eastern District of Washington and first black women to serve on the United States District Court for the State of Washington
First South Asian judge to serve on the United States District Court for the Southern District of New York
He was the second Hispanic person 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
At a Senate Judiciary Committee hearing Wednesday, Sen. John Kennedy (R-LA) couldn’t answer simple questions that go to the heart of Biden, who is a federal judge. State Judge Charnelle Bjelkengren, nominated to be US District Judge for the Eastern District of Washington state, was completely stumped by questions about her knowledge of the Constitution and judicial philosophy. The other nominees struggled to answer Kennedy’s question about originalism but Bjelkengren’s face was not embarrassed.
Kennedy, “Justice, at the far end, tell me what does Article V of the Constitution do?”
Bjelkengren, “Article V does not come to mind at this time.”
Kennedy said, “Okay. How about Article II?
Bjelkengren, “Whether Article II.”
Kennedy, “Do you know what intentionality is?”
Bjelkengren said, “In my twelve years as an assistant attorney general, in my nine years as a judge, I never faced that exact question. We’re the highest trial court in the state of Washington, so I’m often faced with issues I’m not familiar with, and I thoroughly review the law, I research and apply the law to the facts presented to me.
Kennedy said, “Well, you’re going to face it if you’re confirmed, I can promise you that.”
KENNEDY (a few minutes later): “Judges at the far end, can you tell me what the independent state legislative doctrine is? What do you think about that? I’m not asking what it is—it’s in the Supreme Court now.
Bjelkengren, “In my twelve years as Assistant Attorney General, and…”
Kennedy, “Right (heavy sigh).”
Bjelkengren, “That theory was never presented to me.”
Short version:
Judiciary: At yesterday’s Senate Judiciary Cmte hearing, Sen. John Kennedy (R-LA) Judge Charnelle Bjelkengren, Pres. Biden’s nominee to be US District Judge for the Eastern District of Washington did what Articles 2 and 5 of the Constitution do, but she was unable to do so. pic.twitter.com/VqgQDsKmmg
— Forbes (@Forbes) January 26, 2023
Long version:
Fox News reported on Bjelkengren’s background (excerpt):
Charnelle Bjelkengren, judge of the Spokane County Superior Court in the state of Washington, was nominated by President Biden to serve on the US District Court for the Eastern District of Washington.
…Bjelkengren is a graduate of Mankato State University and received his law degree from Gonzaga University School of Law in 2000. He previously served as 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 Governor Jay Inslee appointed Bjelkengren to the Spokane County Superior Court, making her the first female African American judge in Eastern Washington.
Helpful links and descriptors for State Judge Bjelkengren:
Article V: Amending the Constitution
Article II: The Executive Branch
“The purposive doctrine is a version of intervening law that suggests that common law courts interpret a statute more on the intent of the statute than on the precise letter of the statute.” (Ballotpedia)
Columbia Law Q&A with election expert Richard Briffault on independent legislature theory (excerpt):
Moore v. What is the independent state legislature theory that Harper wants to affirm?
The doctrine of independent state legislatures grows out of specific language in the Constitution, Article I, Section 4: “The Legislature in each State shall direct the times, places, and manner of holding elections for Senators and Representatives.”
State legislatures write the rules for the election of members of Congress.
There is other language that says Congress can change those rules: “But Congress may at any time by law make or change such rules, except where senators are impeached.”
But generally, state legislatures write the rules.
When the Constitution says “legislature” it means that the legislature is somehow independent of the rest of the state government. The doctrine is a device designed to limit the ability of state courts, when they interpret state laws or the state constitution, to impose restrictions or set aside provisions of state statutes relating to federal elections.
In other words, if a state court says that something the state legislature has done under the state constitution in relation to an election law is unconstitutional, only the Supreme Court can overturn it and set it aside.
Legislatures do not exist outside the entire structure of state government, with state constitutions including state supreme courts that establish and empower them.
However, the present Supreme Court gives more weight to the literal constitutional text. They may point out that elsewhere in the Constitution it speaks of “States” and here it speaks of “the Legislature.” It can only mean that the founders wanted to ensure that it was the legislature, not the governor, that acted for the state with regard to federal elections. But the text says the legislature.
