- The Washington Times - Wednesday, March 22, 2023

A Biden judicial nominee couldn’t answer a basic legal question during his confirmation hearing Wednesday, making him the second nominee to the federal courts stumped by GOP questioning this year.

Judge Kato Crews, who is nominated to the U.S. District Court for the District of Colorado, couldn’t tell Sen. John Kennedy, a former law school professor, what a Brady motion is.

The term is derived from the Supreme Court’s holding in Brady v. Maryland and is taught to law school students.

The landmark 1963 case held that prosecutors must hand over evidence to the defense that would help its case. A Brady motion is typically filed by the defense attorney to request exculpatory evidence that the prosecutor might have.

“Do you know what a Brady motion is?” the Louisiana Republican asked.

“It is not coming to mind at the moment what a Brady motion is,” Judge Crews said. “I believe the Brady case involved something regarding the Second Amendment. I have not had occasion to address that. If that issue were to come before me, I would certainly analyze that Supreme Court precedent.”

Judge Crews is currently a magistrate judge for the U.S. District Court of Colorado. He’s nominated to serve as a U.S. district court judge for the same court.

He is not the first of Mr. Biden’s nominees to be stumped by Mr. Kennedy’s questioning.

Judge Charnelle Bjelkengren, nominated to be U.S. District Judge for the Eastern District of Washington, also couldn’t field a Kennedy question, in her case about various parts of the Constitution.

“Tell me what Article V of the Constitution does,” Mr. Kennedy asked during her confirmation hearing in January.

“Article V is not coming to mind at the moment,” Judge Bjelkengren said.

“How about Article II?” Mr. Kennedy asked.

“Neither is Article II,” Judge Bjelkengren said.

She is currently a judge serving on the Spokane County Superior Court.

Article II details the powers of, and limits on, the presidency and the executive branch. Article V describes the process for amending the Constitution. Both these facts are staples of high school government classes.

Both nominees have their confirmations pending before the Senate Judiciary Committee. The committee will have to vote on their nominations before they go to the full Senate for consideration.

Carl Tobias, a law professor at the University of Richmond, said it is unfair to characterize Judge Crews‘ response as a “stumble.”

“Crews apparently never handled as a judge a single case out of 1,500 that involved Brady. This may speak more to the Colorado criminal justice system than to Crews. Perhaps Colorado prosecutors routinely turn over that evidence or defense counsel rarely raise the issue in Colorado. Magistrate judges also lack jurisdiction to try felony cases,” he said.

He also doubts Judge Bjelkengren will have a difficult time getting confirmed by the Democratic-controlled Senate.

“I think that the Senate will confirm her [because] she seems to be an experienced state judge, and some [questions] were rather obscure like Article V of the U.S. Constitution, which rarely is an issue in federal court,” Mr. Tobias said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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