Judge Marian Gaston – Nominee to the U.S. District Court for the Southern District of California

State Judge Marian Gaston, who has spent all of her pre-bench career as a public defender, has now been nominated to the federal bench in San Diego.

Background

Marian Gaston received a Bachelor of Arts from Emory University in 1993 and then a Juris Doctor from UC Berkeley School of Law in 1996.

Gaston then joined the San Diego County Public Defender’s Office. She held that position until Governor Edmund Brown appointed Gaston to the San Diego County Superior Court in 2015, where she currently serves.

History of the Seat

Gaston has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on August 1, 2021, by Judge William Hayes’ move to senior status.

Legal Experience

Before she was appointed to the state bench, Gaston spent nineteen years, her entire legal career, as a public defender.in San Diego. Among the cases she handled there, Gaston represented Jason Williams, who pleaded guilty to a hate crime for attacking a black neighbor with a flamethrower. See Escondido Man Sentenced to Prison for Hate Attack, A.P. State & Local Wire, June 28, 2000.

In other matters, Gaston represented Matthew Hedge, who was alleged with violating his release as a sexually violent prisoner. See Kelly Wheeler, Polygraph Expert: Sexually Violent Predator Lied During Routine Test, City News Service, Dec. 9, 2009. She also represented Philong Huynh, charging with sexually assaulting multiple heterosexual men in San Diego’s Gaslamp Quarter, and with killing one. See Kelly Wheeler, Prosectuor: Accused Killer Targeted Heterosexual Men, City News Service, June 1, 2011.

Jurisprudence

Since 2015, Gaston has served as a judge on the San Diego Superior Court. In this role, she presides over trial court matters in criminal, civil, family, and other state law matters. Among the cases she handled, Gaston terminated the parental relationships for juvenile M.P., finding that the father’s drug addiction and the mother’s inability to care for the minor justified termination, a decision that was upheld on appeal. See In re M.P., 2021 WL 1960088 (Cal. App. 4th May 17, 2021).

Writings

In 2000, Gaston was interviewed about her work as a public defender by Renee Harrison. Renee Harrison, Part Two: Domestic Violence: Representing Defendants in Domestic Violence Prosecutions: Interview with a Public Defender, 11 J. Contemp. Legal Issues 63 (2000). The interview focused specifically on domestic violence cases, and, during the interview, Gaston elaborated on her strategies for fighting and winning domestic violence cases. In the interview, Gaston criticizes mandatory arrest for domestic violence, stating that such laws place the burden of arrest on men. See id. (“The police always arrest men, so men are usually the ones on trial.”). Gaston also defended individuals charged with domestic violence, noting:

“Most of the men cry over what has happened. About half of our clients are in mutually abusive, pathetic relationships. Both people in the relationship are alcoholics or drug addicts, and/or emotionally undeveloped, and/or uncommunicative.” Id. i

Political Activity

Gaston has made a handful of political contributions during her time as a public defender, including one to President Obama in 2008.

Overall Assessment

With over 25 years of legal experience, Gaston certainly has the base level of qualifications to be a federal judge. She will likely draw opposition for her time in public defense and some may draw questions as well about her statements on domestic violence, although Gaston can reasonably argue that she was speaking as part of her role as an advocate.

95 Comments

    • Despite me being one of the harshest critics when it comes to nominees over the age of 50 in blue states or for any circuit court vacancy, Gaston proves there are some exceptions to the rule. Just like Nina Morrison, I believe some nominees have such a progressive background that I wouldn’t mind them being slightly older than I normally would like. With Gaston being around 53, I still say she’s a good pick.

      19 years as a federal defender is solid. She will likely draw fire in her SJC hearing for her comments criticizes mandatory arrest for domestic violence & defended individuals charged with domestic violence.

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      • She was only a local public defender, never a federal public defender. Like with many other California nominees, there were younger options with similar backgrounds available such as Harini Raghupathi (1982) and Armilla Staley-Ngomo (1981).

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  2. This is a great nominee with a wealth of experience in an underrepresented background on the federal courts. Looking forward to seeing her confirmed.
    On a note from just now watching the hearing yesterday, I was quite disappointed in the inability by Bjelkengren to answer some quite basic legal questions. I would have to say after hearing her that I don’t think she deserves to be confirmed to that seat and is another example of why older nominees are generally (but not always) superior to younger nominees.

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    • Well to be fair Christine O’Hern is probably the worst Biden nominee to date when it comes to her SJC hearing & she’s near her mid 50’s. I think the hearing really isn’t affected by the nominees she. Most of the nominees 45 & under so far have done great. Bjelkengren just didn’t seem like a stellar nominee from the start.

      I am happy the Washington senators wanted to put the first Black woman on the bench from the state & love that she’s in her 40’s but there honestly were better options. She did horrible in her hearing going 0 for 3 on Kennedy’s questions which were actually fair questions. She couldn’t really give a good answer to Blackburn either. But she will be confirmed so she will learn while I’m the bench.

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      • Bjelkengren really isn’t qualified to be a federal judge. Her practice has entirely been in drivers’ license revocation and unemployment proceedings in state court–some of the simplest of all legal matters. She didn’t even have ten significant cases to list on her SJQ.

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      • Yea, several of the nominees list they have changed their last name on their questionnaire. I think the more surprising thing from her questionnaire is when it ask for her last ten legal cases & she could only name six. I think she will still be confirmed but I would take a stand & reject her while there is still 22 months to get another nominee confirmed. She really is rivaling Christine O’Hearn as the worst Biden nominee despite me being sure she is a fine person personally.

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  3. I have to agree that Bjelkengren didn’t do a good job yesterday and if it was up to me, wouldn’t be a nominee going forward but as Dequan said, she’s going to get confirmed so hopefully she will do better on the bench then she did yesterday.

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  4. Here is my recap from today’s SJC executive meeting;

    All nominees were held over until next week.

    Senator Durbin spoke about his SJC chief counsel moving over to The White House counsel’s office. He said that should help them out vastly.

    Senator Graham brought up senator Cotton’s threat to block all nominees. He then brought up blue slips & said senator Durbin should resist ditching them. He also name checked red states that have a lot of vacancies. This started a back & fourth between the senators.

    Durbin called out Texas right to senator Cornyn’s face. Cronyn replied that The White House has not initiated the process with him. He then said in February 2022 for the 5th circuit vacancy The White House told them that they have 3 weeks to give them names. He said they gave them ten names 6 days later. He said they didn’t get a response until August. He then went into detail regarding the Texas district court vacancies & said they didn’t get a response until just last week.

    Senator Blackburn spoke about her US Attorney nominee that was not renominated by Biden. She didn’t mention senator Hirono by name but brought up “another senator” was the reason his nomination wasn’t moved forward. While I don’t make a habit of this, I personally agree with senator Blackburn on this one. She brought up she has never forced a roll call vote in the SJC or on the floor for a US Attorney even when she disagreed with them. She said now that the Democrats have created a new standard, she will now request a roll call vote on any nominee that she has a disagreement with. She feels she & senator Hagerty have been treated disrespectfully.

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  5. At first hearing them, the Texas revelations are shocking! But then it confirms exactly what I have previously observed about the Biden people.
    It will be easy to say that Coryn is lying. I do not believe he is — he’s given almost exact timelines. The Biden admin can refute them. I don’t think that they can. To think that Costa could have been replaced a mere 6 days in February 2022 is really something. So, using this timeline, it took the WH 6 months (Feb to Aug) to get back to Texans on at vacancy. How long will it take the WH to finalize a nominee for Kanne’s seat? Another 6 months?
    For those keeping track, every Republican senator in red states who has spoken publicly on this have said the same thing: The Biden folks have been unusually slow to engage them about vacancies.
    It’s one thing to blame Rs with stall tactics. It’s quite another thing to not even reach out in the first place.
    This is why I can never be a cheerleader for Biden by claiming he’s the best thing to happen to Dems on judges. For me, he’s doing just OK.
    I encourage everyone to listen to Coryn’s statement for the full context.

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    • Okay, so I watched the hearing and saw the statement made by Cornyn . Unfortunately, I am unable to take Cornyn at his word. Oh sure, bless his heart he’s really concerned about the vacancies in Texas.

      There are two sides at least on this matter and he knows the Whitehouse isn’t going to make public statements on pending nominations. Moreover , does anyone really believe that Ted Cruz is working in good faith? Of course not. He’s been the most strident opponent of all of Biden’s nominees.

      We also don’t know anything about the prospective nominees who were submitted. Oh sure, they have a “bi-partisan “selection Committee. Did anyone cringe when Cornyn said that ? It doesn’t pass the giggle test.

      We just got a nominee on the 5th Circuit (Dana Douglas) I don’t think it matters how quickly someone else gets there. The 5th Circuit has most right wing fringe hacks than any other circuit by far. Do you think the two Senators who helped Trump pack that court will place anyone other than a conservative ?

      Lastly, I was astonished how Cornyn was able make a speech about national security AT a judiciary committee meeting. What a leap? He talks about the Whitehouse being slow on nominations on one hand while suggesting on the other that obstruction may be coming. Give me a break!

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  6. Just me but given what Cornyn and others did to Obama with judicial nominees where they outright blocked Obama from filling seats (especially on SCOTUS) as well as giving the middle finger again and again to Democrats on Circuit court nominees under Trump, I’m not going to take their word alone that the Biden administration has been slow to engage with them on nominees.
    Not saying Biden and company have been perfect on judges but I’m not going to give the benefit of a doubt to people who have shown over the past decade they don’t deserve any.

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    • I normally don’t take much of what Cornyn has to say too serious either but on this he may be telling the truth. I only say that because it actually makes sense for the administration to focus on blue state district court seats. If the Democrats lost the midterms, they can just nominate the red state nominees in the next two years but focus on blue state seats while you have the majority. Now that Dems kept the majority, they can also still nominate the same red state candidates Cornyn & Cruz suggested last February.

      Now the one thing that upsets me is the 5th circuit vacancy. I am actually encouraged that Biden’s team gave Cornyn & Cruz 3 weeks to give recommendations. That more than anything I heard today was music to my ears. But if Cornyn & Cruz gave the administration 10 names last February or March & here we are in January still with no nominee, that is the true crime. Now if the administration goes with another nominee that wasn’t one of the ten names recommended, i would understand taking longer but it still shouldn’t have gone past last October when the Dems didn’t know if they would lose the majority.

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  9. On Cornyn’s claims, we don’t know anything about the 10 names that he and Cruz sent to the WH for the 5th Circuit. If you think they engaged in this process in good faith and sent over some moderate-to-liberal names, I have some bridge property in Brooklyn that you might like.

    My guess is that at least 7 of them were in the mode of some of the worst of the present 5th Circuit judges, and the other 3 were only moderately tolerable.

    Didn’t a whole bunch of Democrats get elected to judgeships in Harris County a few years ago? It’s a big leap to a CCA, but a better idea than choosing from a list where Ted Cruz had input.

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    • If I had to guess, the list of 10 had a good number of current Obama district court judges on it. That would be a win/win for Cruz & Cornyn. Not only would they all be in their 50’s & be moderate enough to had gotten their votes once, but also that would create another district court vacancy that’s they could negotiate with blue slips.

      I partly agree Biden shouldn’t pick any of the 10 names from the list & just go with a young liberal to try & start reversing the disastrous 5th circuit. The only exception would be if Cornyn & Cruz agreed to a package deal to fill ALL of the district court seats with Democrats & Independents in exchange for a Obama district court judge or somebody acceptable to both sides. I think that desk would be worth it.

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  10. This is why i say biden is a coward and has been average at nominating judges. Am i living in an upside down world? Like hello? Cruz and coryn? two of the most bitter partisan hacks in congress especially the former cruz who is a bad faith actor and will never work in good faith with democratic presidents, a shameless man who couldn’t defend his own wife because of politics.
    No such lists of ”10” or whatever should even be worth the paper its written on and in a sane world with a strong democrat in the whitehouse that’s what would happen
    Where is the same courtesy trump gave to kamala harris and feinstein? did he ask them for their own list of names? no, he shoved federalist society hack kenneth lee down their throats and told them to like it.
    Thats what pains me the most, that’s the most insulting part of it all. Treat them how they treated us when they had the power! why even ask partisan hacks like cruz and coryn their opinion? nominate an avowed liberal and shove it down their throats as trump did.
    One side uses power when they have it the other one shirks from using it.
    This is why im so certain kanne seat on the 7th circuit will be vacant this year with no nominee or it would be the closest thing to a right winger a democrat POTUS will nominate.
    They shoved barret down our throats weeks before the election with people already voting and yet this clowns in the white house are still playing nice.
    In a sane world with a potus who had courage it wouldn’t take over a year to fill appellate vacancies when your party controls the senate.
    He values committee over results and progress, that’s just who biden is and is the man voters elected.. shamefull stuff.
    Also i watched the hearings and the fact that any credence or weight is given to the bad faith trick questions the fake ”good ol boy” senator who attended ivy league oxford university asked to bjelkengren is ridiculous, she should be confirmed and rightfully so with no hesitation. Why should i give credence to bad faith GOP senators who have no good intentions or motives? ram them through!
    The next two years should be a conveyor belt for all biden judges.

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    • @aangren

      A lot of what you said is true but you left out the biggest obstacle. BLUE SLIPS. And that’s a Dick Durbin thing, not a Joe Biden thing.

      While blue slips aren’t required for circuit courts any more, until Durbin ditches them for district courts, then Biden has incentive to use circuit court vacancies in red states as leverage to get the Senators to fill the district court vacancies in their states.

      To go back to your example you used, Trump did indeed shove Federalist Society hacks down the California & Nee Jersey senators throat. But you failed to mention the more than a dozen district court seats he left vacant for Biden to fill because he couldn’t get the senators to agree on district court nominees. The same thing can be said in Nevada & other blue states. I think Biden is using a different approach to fill all of the seats.

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  11. For those of you that use Wikipedia, the SJC finally uploaded the last of the Obama SJC hearings so I can get the remaining pictures of the federal judges I wanted.

    Now, all active Obama, Trump & Biden article III judges have pictures on their Wikipedia pages. All active DC court of appeals judges have pictures. All active Trump & Biden DC superior court judges have pictures & all but 2 Obama judges on that court have pictures. All but three active circuit court judges, regardless of the president that appointed them have pictures.

    Happy reading

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  12. Several points worth reiterating…

    Cornyn is lying
    A predictable response. How easy is it to default to saying that Cornyn is lying rather than engaging, if only hypothetically, with what he said? So far, this is the only glimpse we’ve gotten in the process to replace Costa. Again, the WH can refute any of Cornyn’s claims. But does it really shock anyone here that Biden has tried to reach out to the TX senators about filling this vacancy? Whether or not he should have, is a different issue.

    Following up on that last bit, I, too, would have preferred that Biden not only make the first move, but offered names for the senators to consider, as opposed to doing the opposite. Again, this is a circuit court vacancy, not a district court vacancy. I hate this about Biden. But he’s not going to change for me. He doesn’t even know I exist. So nothing much I can do about this.

    The Texas senators’ “good faith” negotiation
    This is a weak argument. I don’t think many people here would vouche for Cruz/Cornyn’s good faith dealings. But that’s not the point, is it? The biggest issue here is about the timing and responsiveness of the WH. Let’s say that the list had 10 ultra-rightwing candidates. Why wait 6 months to reject them?? If you were serious about finding a nominee, wouldn’t you reject them quickly so that the process can start again? Or counter with names of your own? And, harking back to the second paragraph, if you have reservations about the senators’ good faith, why allow them to kick things off with their list?

    The saddest part about this whole revelation is that from what Cornyn said, it doesn’t look like we’ll get a nominee for Costa’s seat any time soon. (So much for the people on here who incredulously thought 12 months was too short a time for Biden to pick a replacement.)

    I don’t think we can talk about getting rid of the blue slips if the WH isn’t even meaningfully engaging on red state vacancies.

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    • @Gavi

      I completely agree that regardless of the names on the list, it shouldn’t have taken 6 months for The White House to respond. Especially after doing such a great job of telling them, they have 3 weeks to give them names to consider. If they are wasting that much time to respond, I may have to revise my previous prediction that next January 2024 will be the cut off for any circuit court vacancies in red states to be announced to be able to be filled before the end of Biden’s first term.

      If I had to put money on it, I would bet four of the ten names included Diana Saldaña, Nelva Gonzales Ramos, Marina Marmolejo & Alfred H. Bennett. Cornyn & Cruz will sell them as people of color, appointed by Obama & has already received bi-partisan support in the senate.

      I personally would only heavily consider Marmolejo out of those four. She’s 52 but if it came with a deal to fill all of the district court vacancies with Democrats & Independents, I think that would be a good deal. But I would prefer to just go with a young progressive not on the list of ten then negotiate from there on the district court vacancies.

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    • Look, let’s be honest . The Texas Senators are going to try their level best to delay the process. At best , I can say this about Cornyn: he may not be lying, but he’s not telling the truth either. Did James Ho have to go through a bi-partisan commission? Of course not!

      I think it does matter if the Texas Senators are negotiating in good faith. Quite frankly, it’s not new for Republicans to say that the Democratic President is dragging his feet with nominations. They were saying this when Bill Clinton was President. It’s a phony issue.

      It appears that you accord a lot of weight to Cornyn’s statements. He knows the Whitehouse isn’t going to respond to his remarks. Why should they? That’s school ground stuff the President can’t afford to look ridiculous by responding to this nonsense.

      There’s no uniform process for advise and consent since all states have their own system. What you fail to mention is that each nominee presented has to his/her background checked. It’s not like you get a name and run with it.

      I hope the Whitehouse does not make a hasty decision on nominee for the sake of expedience. There’s plenty of time to get a nominee named and confirmed. What matters most in my opinion, is that a respectable nominee is chosen.

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  14. Ready to get rolling with some votes in two weeks.

    If you were Schumer how would you prioritize votes? Would you take 2+ weeks and just knock out every appellate nominee in a row? Or simply go in order of how long the nominee has been outstanding?

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  15. In my ideal world, they would vote out the 24 from today next Thursday, and Schumer would file a couple of cloture votes the same day (to be taken up on the 6th). How about Abudu and a district court nominee?

    Even with the ridiculous schedule they keep, they could get out 2/day every week (and as @Dequan points out, they could do cloture votes on Fridays and confirmation votes on Monday if they would work on Fridays). While I understand the importance of filling seats in red states, getting Biden judges in blue states is also important, especially as any Trump/Bush43 judges there retire/go senior. There can’t be any air for right-wing decisions being issued by district courts in blue states.

    Just very frustrating. Schumer says this is a priority, and it’s going to be February and all we’ll get are SJC votes on candidates who’ve already had SJC votes.

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    • There’s no need to be frustrated. I think Schumer did the right thing less when he switched from nominations to completing the budget. Had he not done so , lots of floor time would have been wasted going back and forth with the House Republicans. We would at best be in the Ides of March being any judicial nominee could be confirmed.

      I think 2 years is plenty of time to get judges on the bench. It’s not necessary to panic when Demorcrat’s have an extra vote. The Abudu will be the toughest as there’s no incentive for a red state Senator to vote for her. Schumer has to secure the votes for her before he can bring up that nomination.

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    • The hearings usually start 10am. The executive meetings usually start at 9am Thursday’s presumably so they can get to the airport & head out by 4pm. I hope Schumer gets right to work the following Monday.

      I know everybody keeps saying we have two more years but you never know what can happen. Two years is a long time. I’ll just feel better when all pre 2023 nominees are finally confirmed. Most nominees from the last two batches could have been nominated by Trump so no worry about them getting confirmed if something goes wrong over the next two years.

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  19. I expect those who have been waiting the longest to be confirmed will be first in line for confirmation votes before everyone else is.
    As to the post calling Biden a coward, Arianna Freeman and Andre Mathis wouldn’t be on the courts they are if that was the case.
    I get it, Biden hasn’t been 100% perfect on the courts but if you look at the number of judges that have been confirmed to this point, he has been far better then any other Democratic President at this point in time.
    And I’m sorry but the fact some folks are taking Republican senators at their word for anything on judges is a joke in itself.
    Nothing they say can be taken with any seriousness.

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  20. OK, I get it that I might be getting a little too pessimistic here, although I second @Dequan’s notion that anything can happen and we can’t drag this out too long.

    So, in light of that, how many nominees do we think will be confirmed by March 31st (end of Q. 1)?

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    • We get that but this session almost exclusively executive and judicial branch nominations. There’s not much else they can do.

      Shortly , they will have 25 judicial nominees all on calendar. There’s plenty of time no one is slacking off. The White House has also hired a judiciary committee staffer. It won’t take too long.

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  22. One of the many reasons why biden capitulating to red state senators or seeking their counsel for appellate judicial positions is so enraging. This folks are truly vile and sick and the have shown when in power the will use every lever of government to weaken minority rights and civil liberties. When i see unabashed vile partisan hacks like judge ho and edith jones and elizabeth branch wielding every bit of power and influence they have for their twisted ideology and values then seeing biden pulling this kumbaya/trusting bad faith actors like coryn and cruz nonsense , instead of ramming liberal judges through, it enrages one. Its a disservice to his voters.
    These federalist society hack judges rule against people fighting for their rights and civil liberties every day, good folks just trying to get justice against discrimination etc
    This stuff has a real and tangible impact and to see biden play games when he has power to change something for the better he fails

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    • First, not every FedSoc judge is a hack (although it can feel like it sometimes). Most conservative judges have sound legal rulings for their decisions (not that you even have a good faith argument) and you can’t legislate from the bench to implant civil rights. Just because Biden is seeking council from Republican senators doesn’t mean that he will choose someone who the senators approve of (just look at Mathis in TN) nor go beyond what is custom to allow senators in providing council (it isn’t like Sullivan is now meeting with every 9th circuit nominee as he requested). If Cruz and Cornyn turn in their blue slips for a 5th circuit nominee, I will admit you are correct in Biden not going far enough in diversifying the courts, but I don’t see that happening. Thus, I don’t think you are talking in good faith. More likely, you are just trolling.
      On another note, I also agreed with senator Blackburn regarding the U.S attorney nominee from her state, and found what senator Hirono to be quite wrong and only seeking to gain political points with interest groups. I also support her position to force votes on nominees she doesn’t agree with, at least until that nominee is renominated and confirmed.

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      • ”Most conservative judges have sound legal rulings for their decisions ” Absolute nonsense, with no data or factual reference to back it up just vibes, but being a dishonest dumb boot licking troll is what I have come to expect of you. I don’t care for your posts or comments so refrain from replying to my posts, or better yet continue to display your arrogance and delusions as i ignore your ludicrous rantings and rubbish. For those who aren’t boot lickers satisfied with the absolute bare minimum from a democratic president who promised change, i welcome your comments and posts , and importantly critics on biden failing to meet this moment, a rare one, seeing as how the democrats are very likely not to retain senate control in 24 elections.
        Now moving on to serious issues i think, the fuss around Bjelkengren is much to do about nothing in my opinion, firstly i don’t care what questions GOP senators ask democratic nominees for judicial positions, i see them as bad faith hacks just like frank and automatically disregard every thing to say, especially the fake huckster that is john kennedy who loves to play the ”dumb good ol boy” while he is an ivy league graduate and went to oxford university.
        You had tons of trump judicial nominees who wrote nasty vile disgusting commentary far more disqualifying about LGBTQ, Contraception, race etc and this republicans confirmed them and shoved it down the democrats throats so spare me about this nonsense and taking these bad faith senators seriously.
        I see it as a good thing not bad if republican senators dont like biden judical nominees the more the better..
        This is someone with over a decade work experience in the AG washington office, and has been a judge in the Spokane county for 4 years, she deserves to be confirmed quickly.

        The next two years should be an assembly line/conveyor belt of biden nominees getting their hearing and confirmation. GOP opposition especially on blue state nominees who already have support from their two home state senators should be tantamount to nothing.
        Let them whine and complain the better. Elections have consequences.

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      • Conservative judges have sound legal rulings for cases that aren’t ideologically charged. When a case is ideologically charged they will pick their desired outcome and then find some rationale for siding that way (liberal judges do this too, but conservative judges currently have the upper hand).

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    • As far as knowledge, Charnelle Bjelkengren might be the worst Biden nominee. Politically I still would list Christine O’Hearn first because in addition to her horrible answers at her SJC hearing, she also is a blue state nominee that worked against employees & unions in her career.

      Having said that, I’ve said if I were in the senate I would have outright voted no on three Biden nominees so far. J Childs (I would have voted yes had she been nominated to the 4th Circuit instead), Florence Pan to the DC Circuit (Yes to the DC district court) & Christine O’Hearn. I’m afraid Charnelle Bjelkengren would be my fourth no vote.

      Senator Kennedy didn’t ask her any questions that were out of bound & she went 0 for 3. I’m all for shoving young progressives down Republicans throat just as much as the next person but they need to have a basic understanding of law. For God’s sake I’ve never stepped foot inside a law school & probably could have answered at least one of the three questions.

      I think it would do the Democrats good to take a stand on this nominee to show independence & provide cover when the tougher votes come up later. I’m sure this nominee is a fine person & with more experience perhaps she will have a good legal career but senator Kennedy tanked some Trump nominees for less & Democrats should do the same here. Particularly when we have 22 months to get a new nominee confirmed. Btw this is now in mainstream media which isn’t a good look.

      (https://www.nbcnews.com/politics/congress/sen-kennedy-stumps-biden-judicial-nominee-basic-questions-constitution-rcna67703?utm_source=facebook&utm_medium=news_tab)

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      • I didn’t count Jennifer Rearden since she was a voice vote but to be honest I would have forced a floor vote on her. Senator Elizabeth Warren saying she would have voted against her means nothing to me. If a nominee is bad, force Schumer to east the two hours to confirm them. That will give other senators pause when recommending crap nominees.

        One thing I will say about Republicans is they will push back against Republican presidents when they nominate crap nominees. I think despite it costing more floor time or time finding a replacement nominee in the short term, in the long term you will get better nominees.

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  24. Even if Bjelkengren is confirmed, she probably couldn’t make a worse decision that the District Court nominee from Florida , Aileen Cannon whose decision sparked outrage from all corners of the legal spectrum..

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  25. Charnelle Bjelkengren has plenty of state court experience and IMO that is where she should stay because she utterly failed the most basic questions for a federal judge.
    As some have said, Democrats do have to draw a line in the sand somewhere and someone who did this badly should be it.
    There will be time to confirm someone else to this seat, it just can’t be her.

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    • I don’t care about Kennedy’s little law 101 test when judges literally look things up as part of their jobs – if Kennedy were serious about testing relevant on-the-spot knowledge, he’d be asking evidentiary hypos since judges have to rule on those in the moment.

      I get that EDWA’s not exactly a hotbed of legal superstars given how rural it is, but I would’ve rather had somebody from the federal defenders office there. I doubt that Bjelkengren will be the first nominee rejected when (1) Patty Murray is on the senate leadership team, and (2) Bjelkengren is a black woman and would be the only black woman on that district court.

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      • For me, it’s more about being principled. It’s important to have principles, even when it hurts & goes against your benefit. I want young progressives on the bench & diversity is even more of a plus. This nominee seems to check most, if not all of the boxes.

        But at the same time, Charnelle Marie Bjelkengren had 145 days to prepare for her hearing since she was announced. For her not to be able to answer senator Kennedy’s basic three questions that any first-year law student should have saw coming, makes it difficult to vote to confirm her now, & expect to tell Republican senators not to confirm unqualified nominees from a future Republican president later.

        And I already know what your gonna say. Republicans confirmed some unqualified Trump nominees anyway. While that is true, they also tanked some. Senator Kennedy himself tanked at least three & voted against several others that ended up being confirmed.

        While I don’t agree with senator Kennedy on much, he is one of the more reasonable Republicans on the SJC. This could garner good will with him. Remember he saved Andre Mathis nomination in the SJC from being deadlocked as well as on the senate floor. He returned his blue slip for Dana Douglas making it much easier for her to be confirmed. Also let’s not forget Louisianna has several district court vacancies.

        To me this is a win/win. There’s 22 months left to confirm somebody to this seat. You can be principled & not confirming this nominee while still getting the end result of a solid nominee in her place. The Washington state senators have been really good on judges, so I don’t think this is a case where we have to fear not getting a replacement nominee or a worse nominee. And to make things even better, this nominee is already an existing state judge so it’s not like if she does not get confirmed, she now has to return to a law firm with her head down in shame.

        Like

      • I agree that she’ll be confirmed due to the reasons you cited, although I still find it disappointing that Democrats don’t hold nominees from their own party as accountable as Republicans do. Some of the questions Kennedy asks judicial nominees are definitely quite obscure, but the ones he asked Bjelkengren were not.

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    • @Zack Jones
      “I saw the hearings and a couple of the nominees did get grilled hard but at this point, it’s theater and everyone knows it.”
      Are you changing your position from yesterday?

      I disagree with everyone here on Bjelkengren. She had a bad showing. Probably nerves. It looked surprising that she couldn’t answer those questions but I highly doubt that she doesn’t know the answer. Being quized in front of powerful people with glaring lights beaming on you is not the same as researching and writing opinions in the comfort of your chambers. I still support her and hope she’ll be confirmed.

      Liked by 1 person

  26. I wasn’t here during the Trump era . How were the Trump district judges for blue states that needed Dem senator sign offs being rated by you all?

    The discussion is always that Biden needs to appoint more judges than Trump but I have to imagine so many Trump judges in CA, NY, IL, MI, PA couldn’t have been that hard right unless Dems are…let’s say accommodating out of power as they are in it.

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    • Trump definitely appointed some Democrats in blue states to get to his 230 judges. He also renominated a fair amount of Obama nominees that never received a vote. So even if they weren’t Democrats, they were fair minded enough for Obama to nominate such as David Nye that was confirmed 100 – 0.

      For the record, I don’t blame Biden for any district court nominees from red or purple states. The only one o would have would have been Chad Meredith because he was both ultra conservative & young enough to be elevated by a future Republican president.

      Like

      • Yup.
        Look at Mary S. McElroy in Rhode Island, who is a life long Democrat and public defender and certainly not someone who would have been nominated if blue slips hadn’t been in place for district court seats.
        If not for her age, she would have been the second Trump district judge nominated to a Circuit court seat after Stephanie Davis.

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    • I thought I was the only one that gets all tingly inside when Schumer starts to speak that senate talk about judges… Lol

      I too & looking very forward to hearing him as well. That is first, getting Biden to send Wamble & the rest of the pending nominees to the senate is second. Third is another SJC hearing hopefully on February 8th & fourth would be another batch from Biden next month. Hopefully the next batch will be much better than the past two.

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      • I usually scream at TV for 2 reasons:

        1, Watching NFL Red Zone and my fantasy players aren’t doing well and/or opponents players are.

        2. AND when watching Senate on C-Span when Schumer goes to Executive session, and he forgoes judicial nominees to proceed to seemingly silly Executive ones like Ambassador to the Congo for a period of 2 years instead of a judicial nominee(s).

        LOL

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  28. IMO, I think the reason for the delay in the 5th Circuit is the same reason Gregg Costa left in the first place.
    It is a toxic environment where anyone who is even slightly moderate/liberal is treated like garbage.
    Might be a lot of folks don’t want to subject themselves to that for the next 30-40 years and thus are bowing out.

    Like

  29. I disagree i think the primary reason for delay is biden cowardice , he is afraid of the whining and temper tantrums by bad faith hacks like cruz and coryn, that’s why. He doesn’t have the courage to nominate a liberal regardless of the texas senators views and shove it down their throats like trump did severally to democratic senators. Thats the botom line. Why should cruz or coryn even be consulted anyway? i find that notion itself insulting.

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  30. Wanted to clarify a post I made the other day.
    When I said hearings were theater, what I meant was when nominees are attacked for the work they have done like Arianna Freeman did in being a public defender etc.
    What happened with Charnelle Bjelkengren is different.
    The questions she was asked weren’t gotcha questions, they were ones anyone with a basic understanding of the law, let alone a judicial nominee and a judge with years of state experience should have been able to answer.
    The fact she couldn’t is not a good look for someone who is up for a lifetime position and I honestly hope her nomination is withdrawn.
    She can still do good in her current job but she failed here and we can’t reward that.

    Like

    • I went back to sjc site and reviewed the background information on judge Bjelkengren. Her experience is almost exclusively in the state courts of Washington.

      The question she was asked are not relevant to what she has been doing as a judge. The fact that you know the answer the questions doesn’t make you qualified to be a judge.

      This nominee has several letters of support from peers who have observed her as judge and a litigator. The judge also went through a process with a screening committee and several interviews. The ABA rated her as qualified.

      This a good nominee. For years people have been saying that women and minorities are underrepresented on the bench. Here you have a solid a nominee.So, let’s not use a couple of questions sink an otherwise qualified nominee.

      Like

      • I actually think the ABA rating her qualified instead of well qualified makes her look worse. The ABA usually gives a nominee that’s an existing judge anywhere qualified. You could be a judge on Divorce Court & they give you that rating right out the gate almost every time.

        Take Justin Walker for example. He was rated not qualified for the district court in Kentucky. Less than 8 months later he was rated well qualified for the DC circuit, the second highest court in the land. The only thing that changed in that time was he was an existing judge the second time around.

        I’m all for putting minorities & woman of color on the bench as much as the next person. I just think in the long run Democrats do themselves a disservice when they rubber stamp nominees that doesn’t pass the smell test to be a nominee for a federal judgeship. You lose the moral high ground the next time there is a Republican president & senate. Don’t expect senator Kennedy to tank the next ultra White male conservative in his 40’s if not 30’s when a Republican president nominates him if Democrats can’t take a stand in win/win situations like this when there is 22 months to find a replacement nominee.

        Like

      • I think the issue with Justin Walker was that he didn’t have trial experience. Even if he hadn’t been a district judge, he may have had a better rating since appellate courts are different than trial courts.

        In her confirmation hearing Sonia Sotomayor said being a district court judge was the toughest job she had. You have every kind of case covering all areas of the law that you decide on your own.

        It’s interesting is it not? Many of the justices on the Supreme Court would struggle as a district judge because only a few have trial experience. It’s a lot of work and it’s a different kind of work.

        You can go to the clerk’s office of any district court on a Monday and see how many lawsuits are filed. It’s not usual for a judge to have hundreds of cases.

        The DC Circuit is just another appellate court. To serve on that court doesn’t make you any bettert than any of the other numbered circuit courts.

        There was a long layered process for Bjelkengren to get this far. That’s a far cry from a rubber stamp. Let’s not waste anymore time!

        Like

      • While I like the structure of the ABA ratings, I’m not with Obama in terms of taking them as gospel (and it isn’t due to “liberal bias”). There are quite a few concerns with how those ratings are chosen, including conflicts of interest amongst those involved in rating the candidates and the proliferation of corporate lawyers on the panels rating the candidates.

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  31. Justice Barrett could not even the full 1st Amendment so spare me the outrage on Charnelle Bjelkengren. She should be swiftly confirmed, and I’ll take it one step further, and I hope she is considered for a 9th circuit position in future Dem presidencies.

    Like

    • I know for myself personally, not only do I not think a nominee not being a judge isn’t a bad thing, but I actually think it’s a good thing. Some of my favorite Biden nominees so far haven’t been judges such as Dale Ho, Rachel Bloomekatz & Myrna Perez.

      I don’t think anybody has brought up Charnelle Bjelkengren only being a lower-level state court judges the issue. My issue is her being nominated for THIS position. Some of the users advocating that she should be confirmed are saying being a district court judge is more work & harder than even being on the Supreme Court. So, I just don’t see how somebody that had 128 days to prepare for a SJC hearing, can’t answer the most basic of legal questions.

      Now as I said earlier this nominee may still end up being confirm. I just think this is a missed opportunity for the Democrats to take a stand against a nominee that still would be a judge back in her home state for a seat that would still get filled in the next 22 months, likely by another minority & possibly by somebody even more progressive. I realize some disagree, but I think the extra time spent to get a nominee that is more prepared would be worth it next time there is a Republican president & senate.

      Like

      • You could definitely argue a District Court judge is harder than a Circuit court judge as on the former, you are the trial judge running the entire show…..At least on the Circuit court, there are 2 other judges with you…Plus the pay and prestige are higher on the Circuit courts…

        Like

      • She can provide an answer in writing. I think the real problem people have with Judge Bjelkengren is not with her qualifications(she’s qualified) is that they prefer someone of their own liking.

        At this stage a new or replacement nominee isn’t gonna happen. Did anyone see Clarence Thomas’ confirmation hearing?

        Like

      • Clarence Thomas shouldn’t have been confirmed. And that’s even with me only using what I knew about him back in 1991. I actually was fine with this nominee prior to her hearing. Her background didn’t exactly blow my socks off but I had no belief that anything at her hearing would make me feel she shouldn’t be confirmed. I have plenty of others I would tether see confirmed from the Western district of Washington but not the Eastern district. My opinion is truly based on the nominee in this case unlike let’s say J Childs or Florence Pan who both I felt were well qualified but I think we’re horrible nominations because of their age & there being much much better choices.

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  36. I’m baffled by this naivety on Bjelkengren.
    Who really believes that Republican senators are hiding in a corner with fingers crossed waiting for Dems to reject a Dem nominee so that they can finally get the permission they’ve always wanted to vote against a GOP president’s nominee in return.
    That simply won’t happen. Kennedy’s few nay votes was an aberration, that was more about his own gripes with the WH than a principled position.
    But by all means, let’s conveniently forget that it’s the Republican party and judges we’re talking about.

    Like

    • 100% agree with Gavi – I don’t care if Bjelkengren or someone else fills the seat (I’d honestly prefer someone more progressive), but thinking that tanking this nomination will win over Republicans assumes that Republican senators care about things like principles or consistency (especially when it comes to judicial nominations). Rejecting Bjelkengren is not going to get Kennedy to support Dale Ho for example, and keeping the nomination is not going to cause Graham to stop supporting DeAndra Benjamin.

      As we’ve discussed before, Dems (more so than Republicans) have stuck to the traditional process where judges are filled at the recommendation of the senators. This is especially true for district judges, and unless other Dem senators won’t vote for Bjelkengren, the administration should be focused on filling open seats and not getting into a spat with Murray/Cantwell. (For reference, the Trump nominee who withdrew because he couldn’t answer basic questions, was nominated to D.D.C., which has no senators who can advocate for a nominee.

      Like

      • Remember, nobody thinks rejecting this nominee will all of a something turn Republican senators into Dale Ho confirming machines. What was said is if Democrats lose the moral high ground, senators such as a Kennedy, Tim Scott & a few others that tanked some really bad Trump nominees might not do so under the next Republican president.

        There were others blocked under Trump that were not from DC. A nominee in Alabama for instance was also ranked & they had two Republican senators advocating for him.

        And by no means is anybody suggesting Biden should public ally have a spat with the Washington senators. Everything should be done in private which is what I would expect from this administration anyway. But I would guess this nominee will end up getting confirmed at the end of the day despite my advice which is not to do so.

        Like

      • https://twitter.com/prof_jpc/status/1620483960718651392?cxt=HHwWgMDTrfPkjv0sAAAA. Looks like Durbin still plans to move forward and also thinks Kennedy’s little quizzes are not worth all the hoopla folks on this blog are making of it.

        The idea that any kind of “moral high ground” would sway Republican senators from nominating crazy/unqualified nominees is a stretch. Lawrence VanDyke and Cory Wilson are nutjobs who are now appellate judges, so even if some Republican senators reject some nominees, they will always find someone equally insane to confirm. As for pushing back on the nomination in private, I would think a senator would be annoyed at their district court recommendation being rejected. When the administration has so many other vacancies to fill and circuit judges to convince to take senior status, why is it worth getting into (even a private) fight with a senator now for the possibility that the Republicans might in the future…do what, put a Fed Soc hack with 10 years of experience on the district court in Alabama instead of a Fed Soc hack with 5 years of experience?

        As for the Alabama nominee you mentioned Dequan, he withdrew after (1) it came out that he endorsed the “early KKK,” (2) he did not disclose that he was married to the White House Counsel’s chief of staff (who is involved in selecting nominees), and (3) he had practiced law for three years (generally a nominee is supposed to have over a decade of experience) and never tried a case. Even if I’m not Bjelkengren’s biggest fan, I wouldn’t say she’s equivalent to that.

        The upside to Bjelkengren withdrawing would be hopefully a more progressive nominee. That’s good enough for me, but it might not be for Murray/Cantwell to pull their support for her. No need to speculate about things Republicans will or won’t do in 2+ years in response.

        Liked by 1 person

      • Durbin is saying the right thing. I mean unless any Democrat senator says they will not vote for her, no need to say anything different about her.

        If I were in the senate I would certainly tell him I’m a no vote but to be fair she wouldn’t bet my first no vote so they would probably be use to me by now. She would have been my fourth out right no vote & I would have pushed back on several more behind the scenes as well… Lol

        Like

      • Now even The Hill is reporting on the nominee failing senator Kennedy’s 3 question quiz. The Hill isn’t exactly a right wing news publication. Sadly I agree with everything Mitch McConnell said today which I never thought I would say. I may change my earlier comment to this nominee will be confirmed to giving her a 50/50 chance at confirmation.

        (https://thehill.com/homenews/senate/3837721-mcconnell-mocks-biden-judicial-nominee-for-flubbing-basic-legal-questions/)

        Like

  37. As the article notes, the reason Trump/McConnell was able to replace Harry Pregersom and Stephen Reinhardt is because they chose to take the RBG route and cling to their seats until they died, thus allowing Republicans to pick their replacements.
    Should be noted given what came out about Reinhardt after he died it’s not surprised he acted with selfishness with his seat.
    Also, Richard Talman, despite being put on the 9th Circuit under Clinton was a very conservative judge who was part of a package deal so Orrin Hatch would let more liberal nominees through so while he was replaced under Trump, that wasn’t a flip, same with a couple of the Clinton judges on the 11th Circuit.
    Sad to say, I don’t see any of the three remaining George W judges under Biden unless they pass away but anything can happen.

    Like

    • That’s the most beautiful line up I’ve seen in my life. Durbin went even further then I thought by adding the remaining names not included last week so they can be held over & voted out next week. WOW, now I see why they didn’t schedule anything else this week. Thursday will be an entire weeks worth in one day.

      Like

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