WASHINGTON — After helping President Joe Biden win more than 100 judges, Democrats are facing some turmoil as they try to reform the courts.
With no-shows causing delays, a habit of senators from home states threatening to keep seats open, and storm clouds gathering over some of Biden’s judicial picks, the next 100 will be more difficult.
The Senate Judiciary Committee, which presents nominees for full Senate confirmation, is hampered by two major Democratic absentees. Senator Dianne Feinstein of California was hospitalized «with a case of shingles,» prompting the committee to delay a meeting scheduled for Thursday 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 receiving help for clinical depression, forced Vice President Kamala Harris to cut ties with the justices this week.
Democrats are still aiming to surpass former President Donald Trump’s total of 234 judges, but even absenteeism aside, his well-oiled Senate confirmation machine may be showing signs of wear.
The committee has no hearings scheduled to consider new judicial nominees in March. Some progressives blame the “blue slip” courtesy, which allows senators to block district court nominees in their home states, saying it may prevent Democrats from achieving their goals.
A spokesman for Senate Judiciary Democrats said that «the committee is exceeding the confirmation rate of the Trump and Obama administrations.» The spokesman noted that Illinois Chairman of the Judiciary Dick Durbin has pushed Republicans to be more cooperative and work with the administration on the candidates.
‘That worries me a lot’
Meanwhile, a pair of Biden nominees already going through the confirmation challenge are under fire.
Charnelle Bjelkengren, a Spokane County Superior Court judge whom Biden selected to be a district court judge in Washington state, was perplexed when asked by Sen. John Kennedy, R-Los Angeles, what’s in Article II and Article V of the Constitution.
“That makes it challenging,” said Sen. Joe Manchin, DW.Va. «Challenging for her.»
“That worries me a lot,” said Sen. Susan Collins, a Maine Republican, a centrist who has voted for many Biden-nominated judges. “I can’t imagine a judge who doesn’t know the basic articles of the Constitution. So I told my staff that we need to take a hard look at that candidate.»
Lindsey Graham, RS.C., a ranking member of the Judiciary Committee, said she «will have a hard time» getting confirmed.
Many Democrats rejected Kennedy’s «trapped questions»; some compare Bjelkengren’s response to Supreme Court Justice Amy Coney Barrett’s fight to name the five First Amendment freedoms at her 2020 confirmation hearing. But Republicans see an opportunity to undermine Democrats’ judicial picks more broadly, arguing that they are overlooking ratings.
“My God,” said Senate Minority Leader Mitch McConnell, R-Ky., adding: “Is this the caliber of legal expert that President Biden is filling the federal bench with for lifetime appointments? Is the bar for merit and excellence really that low?
Sen. Patty Murray, D-Wash., endorses the nominee ahead of an expected committee vote on her and others’ candidacy next week.
In a statement, Murray said Bjelkengren was recommended to him by a nonpartisan panel, who has «strong support» in Washington and 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 see the whole picture,” Murray said. “I am working to continue to build support for Judge Bjelkengren, and I hope my fellow Republicans will support her as well.”
‘He doesn’t deserve to be a judge’
The second candidate facing the heat is Michael Delaney, an attorney and former prosecutor nominee for the Court of Appeals for the First Circuit. He legally represented a New Hampshire school that was sued years ago by the family of a girl who claimed she was sexually assaulted. The plaintiff, 16 at the time, claimed that Delaney filed a threatening motion to expose his identity if he continued to make statements about the school.
The plaintiff recently wrote an opinion piece in the boston globe arguing that Delaney «does not deserve to be a judge» and that supporting him is tantamount to endorsing «what Delaney and St. Paul’s School put me and my family through.» He added: «Michael Delaney’s nomination must be withdrawn and the White House must make good on its promise to support survivors.»
McConnell has added his voice to the criticism. “In other words, Mr. Delaney tried to hold a teen victim’s privacy hostage to help a high school avoid accountability,” he said, calling on senators to reject the nomination.
Biden has scooped up the nominations, and Democratic leaders have indicated they plan to go ahead with both. It’s not clear that Bjelkengren and Delaney have the near unanimous Democratic support they need to secure confirmation.
Sen. Mazie Hirono, D-Hawaii, a member of the Judiciary Committee, said Democrats continue to move full speed ahead with judges.
“We have had hearings on the judges at a very fast pace, which is how I like it,” he said. «I haven’t heard anything to the contrary.»
Republicans predict they will have trouble.
“I think they have some turbulence,” said Kennedy, a member of the Judiciary Committee. «And I think there are some of my fellow Democrats who want to vote no, and they’re getting hit over the head and shoulders as we speak.»