WASHINGTON — After having helped President Joe Biden secure more than 100 judges, Democrats are hitting some turbulence in their push to reshape the courts.
With absences causing delays, a custom for home state senators threatening to keep seats open and storm clouds gathering over some of Biden’s judicial picks, the next 100 will be tougher.
The Judiciary Committee, which advances nominees for full Senate confirmation, is hindered by a pivotal Democratic absence. Sen. Dianne Feinstein of California was hospitalized “with a case of the shingles,” prompting the committee to delay a scheduled Thursday meeting to advance judicial nominees; she said she hopes to return to Washington “later this month.” And the absence of Sen. John Fetterman of Pennsylvania, who is getting help for clinical depression, forced Vice President Kamala Harris to break ties for judges this week.
Biden outpacing Trump with 100th federal judge confirmedFeb. 14, 202303:45
Democrats still aim to surpass former President Donald Trump’s total of 234 judges, but even aside from absences, their well-oiled Senate confirmation machine may be showing signs of wear and tear.
The committee has no hearings scheduled to consider new judicial nominees in March. Some progressives lay the blame on the “blue slip” courtesy — which allows senators to block district court nominees in their home states — saying it may prevent Democrats from hitting their targets.
A spokesperson for Senate Judiciary Democrats said “the Committee is exceeding the confirmation pace of both the Trump and Obama Administrations.” The spokesperson noted that Judiciary Chair Dick Durbin of Illinois has pushed Republicans to be more cooperative and work with the administration on nominees.
'That concerns me greatly'
Meanwhile, a couple of Biden nominees already making their way through the confirmation gauntlet are under fire.
Charnelle Bjelkengren, a judge on the Spokane County Superior Court who Biden picked to be a district court judge in Washington state, was stumped when Sen. John Kennedy, R-La., asked her what’s in Article II and Article V of the Constitution.
“That makes it challenging,” said Sen. Joe Manchin, D-W.Va. “Challenging for her.”
“That concerns me greatly,” said Sen. Susan Collins, R-Maine, a centrist who has voted for many Biden-nominated judges. “I can’t imagine a judge not knowing the basic articles of the Constitution. So I told my staff that we need to take a hard look at that nominee.”
Judiciary Committee ranking member Lindsey Graham, R-S.C., said “she’ll have a hard time” getting confirmed.
Many Democrats dismissed Kennedy’s “gotcha questions” — some compare Bjelkengren’s response to Supreme Court Justice Amy Coney Barrett’s struggling to name the five freedoms in the First Amendment at her 2020 confirmation hearing. But Republicans see an opening to undercut Democrats’ judicial picks more broadly, arguing that they’re overlooking qualifications.
“Goodness gracious,” said Senate Minority Leader Mitch McConnell, R-Ky., adding: “Is this the caliber of legal expert with which President Biden is filling the federal bench for lifetime appointments? Is the bar for merit and excellence really set this low?”
Sen. Patty Murray, D-Wash., is standing by the nominee ahead of an expected committee vote on her candidacy and others’ next week.
In a statement, Murray said that Bjelkengren was recommended to her by a nonpartisan panel, that she has “strong support” in Washington and that she was rated “qualified” by the American Bar Association.
“When we make these kinds of decisions it’s important to judge these candidates holistically — we need to look at the whole picture,” Murray said. “I’m working to continue to build support for Judge Bjelkengren, and I hope my Republican colleagues will also support her.”
'Doesn't deserve to be a judge'
The second nominee facing heat is Michael Delaney, a lawyer and former prosecutor nominated for the 1st Circuit Court of Appeals. He legally represented a New Hampshire school that was sued years ago by the family of a girl who alleged that she was sexually assaulted. The plaintiff, 16 at the time, claimed Delaney filed a threatening motion to expose her identity if she kept making statements about the school.
Recently, the plaintiff wrote an opinion piece in The Boston Globe arguing that Delaney “doesn’t deserve to be a judge” and that supporting him amounts to approving of “what Delaney and St. Paul’s School put me and my family through.” She added: “Michael Delaney’s nomination must be withdrawn and the White House needs to follow through on its pledge to support survivors.”
McConnell has added his voice to the criticisms. “In other words, Mr. Delaney tried to turn a teenage victim’s privacy into a hostage to help a prep school avoid accountability,” he said, calling on senators to reject the nomination.
Biden has stuck with the nominations, and Democratic leaders have indicated they plan to move forward with both. It’s not clear Bjelkengren and Delaney have the near-unanimous Democratic support they need to ensure confirmation.
Sen. Mazie Hirono, D-Hawaii, a Judiciary Committee member, said Democrats are still moving full speed ahead on judges.
“We’ve been having hearings on judges in a very rapid pace, which is how I like it,” she said. “I haven’t heard anything otherwise.”
Republicans predict they’ll run into trouble.
“I think they do have some turbulence,” said Kennedy, a member of the Judiciary Committee. “And I think there are some of my Democratic colleagues that want to vote no, and they’re being beaten about the head and shoulders as we speak.”