I have to admit that I do enjoy the brilliant grilling that Sen. John Kennedy (R-LA) gives to witnesses and Biden nominees. It’s so often brilliant not because it’s complex, but because it’s simple and always cuts right to the heart of the matter, in a plain-speaking way that anyone can understand, often with a little humor tossed in. I wrote on Wednesday about how he took apart the Silicon Valley Bank CEO for his “bone-deep, down-to-the-marrow stupid” regarding risks to the bank.
But it also has exposed a big continuing problem that we see with Biden judicial nominees — that they’re wilting under the pressure and sometimes don’t even know the basic facts that a first-year law student might know. That’s a big problem for the quality of our courts when they pick people they think are more aligned with them politically, yet they fail to have even this most basic knowledge. It was bad enough when you had even Ketanji Brown Jackson playing this game that she didn’t know what a woman was because she wasn’t a biologist. She, of course, said that for disturbing political reasons. But now you have people that seem to be lacking a basic understanding of the Constitution and things that they should know if they are going to be federal judges. We reported on how Kennedy grilled a nominee for the U.S. District Court for the Eastern District of Washington, Judge Charnelle Bjelkengren who didn’t seem to have any idea about what Articles II or V of the Constitution were.
The latest case was Judge Ana de Alba, who is already a federal district court judge but is being proposed for the Ninth Circuit Court of Appeals. The Ninth Circuit has been problematic for years, so there’s a real need to have good judges there.
But de Alba had significant trouble with a couple of Kennedy’s basic questions about the Dormant Commerce Clause and the Commerce Clause. Kennedy referenced a recent case that had been in the news about California’s Proposition 12, that had to do with pork products being shipped into the state that had to meet certain standards. The Supreme Court ruled in favor of California and that may have a big impact on the pork production commerce. “Tell me about the Dormant Commerce Clause,” Kennedy asked.” The Dormant Commerce Clause prohibits one state from discriminating against another state’s commerce or “impose[ing] undue burdens on interstate commerce.”
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Kennedy’s question left de Alba stumped.
“I’m somewhat familiar with the Commerce Clause, which is found in Article 1 of the Constitution,” de Alba said.
“There was a big Supreme Court case that just came out of your state,” Kennedy interjected.
“And I apologize, Senator. You know, in my 11 years of practice and five years on the bench, I have not dealt with the Dormant Commerce Clause. But if I am so fortunate enough to be confirmed and have to deal with it in the future, I would certainly …”
“You’ll look it up?” Kenned said.
“Research it and, yeah, be prepared,” de Alba said.
Kennedy gave her another opportunity, this time just asking about the Commerce Clause with which she had said she was “somewhat” familiar, “All right, then just tell me about the Commerce Clause in general,” Kennedy said.
Now, I’ll have to give her a little credit, she did try, noting that the commerce clause had to do with…wait for it… commerce.
“So, my understanding about the Commerce Clause, like I stated, Senator, is that it is under Article 1 of the Constitution, and it allows the legislature to create laws that allow for movement and things related to commerce in the United States and anything crossing state lines, things like that,” de Alba said.
She acknowledged that it had to do with commerce between the states. But then she hit a wall.
“Anybody else?” Kennedy inquired.
“It’s not coming to mind right now, Senator,” she said, going blank.
The Commerce Clause gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
Then you wonder how you get judicial decisions that seem purely activist rather than based on the rule of law and the Constitution. If you don’t know the basic rock on which you are supposed to stand, how can you truly stand on it? You’ll get buffeted in the wind or by your own opinion because you have no true grounding in the law. That’s a big problem when those are the nominees that Joe Biden is putting forward and it’s a great thing that we have folks like Kennedy to be able to point this out.