Feinstein's absence from Senate leaves Spokane judge's confirmation in limbo

Apr. 19—WASHINGTON — The extended absence of the Senate's oldest member has delayed the confirmation of President Joe Biden's judicial nominees, including a Spokane County judge, and resurfaced uncomfortable questions about when aging and ailing lawmakers should retire.

On Tuesday, Senate Republicans blocked an effort by Democrats to temporarily replace Sen. Dianne Feinstein of California on the Senate Judiciary Committee, which would let her fellow Democrats confirm federal judges without GOP help. The 89-year-old lawmaker hasn't voted since February, when she was diagnosed with shingles.

"Few have left their mark on this country like our dear friend, Sen. Dianne Feinstein," Majority Leader Chuck Schumer, D-N.Y., said Tuesday on the Senate floor. "So today, I am acting not just as leader but as Dianne's friend in honoring her wishes until she returns to the Senate."

Predictably, Republicans balked at the idea of helping Democrats confirm nominees who have no bipartisan support, as is common in a chamber that is increasingly divided along party lines.

"She is a dear friend, and we hope for her speedy recovery and return back to the Senate," Sen. Lindsey Graham of South Carolina, the top Republican on the Judiciary Committee, said of Feinstein on Tuesday. "But with all due respect to my colleague, Sen. Schumer, this is about a handful of judges that you can't get the votes for."

One of those judges is Charnelle Bjelkengren, a Spokane County Superior Court judge whom Biden nominated last September to fill a vacancy on the U.S. District Court for the Eastern District of Washington. She is one of 12 nominees for the federal bench awaiting confirmation votes in the Judiciary Committee, according to the American Constitution Society.

Bjelkengren's appointment has been in limbo since her confirmation hearing on Jan. 25, where she drew criticism from Republicans for stumbling over questions about the Constitution. Her defenders have pointed to her qualifications and said the questions didn't reflect her readiness for the district court job, but Senate GOP Leader Mitch McConnell of Kentucky said she had "flunked" questions on subjects that "high schoolers across America learn each year," suggesting it is unlikely any Republican will vote for her.

Jacob Rooksby, dean of Gonzaga Law School, said in a February statement that Bjelkengren — a Gonzaga Law graduate whom he praised for her "sterling" record as an assistant attorney general, administrative law judge and superior court judge — "was asked 'gotcha' questions for the purpose of creating a headline."

The holdup in the Senate hasn't only affected the future of Bjelkengren, who would be the first Black woman to serve on a federal trial court in Washington if confirmed. Since her nomination in September, Spokane County Superior Court has also been in limbo, said Ashley Callan, the court's administrator.

The county court expected a confirmation hearing to take place in the first quarter of 2023, Callan said, but the "unexpectedly long" process has left the court — which has seen eight new judges in the past seven years — struggling to plan for the future.

Despite her likely upcoming departure, Bjelkengren continues to be assigned cases, sometimes complex ones that will likely have to be passed off if she is confirmed by the Senate, Callan said.

"We'll be without a judge in an already very under-resourced court for at least a month," Callan said, adding that the court is already four judges short based on its current caseload.

"It makes it really hard to plan for the resource needs of the court," she said. "We try to assign a new judge with a caseload that they're familiar with so they're successful in their new assignment."

For example, newly appointed Judge Jackie High-Edwards was assigned to family law, the area of law in which she had the most experience, for her first rotation last year.

Judge Michael Price announced his plan to retire in June earlier this spring. The application for the vacancy closed Monday, meaning the court will likely have two brand new judges taking cases this summer.

The long wait for Bjelkengren's confirmation hearing is also difficult for her staff, Callan noted. A judge's staff work directly for the judge, meaning they are not guaranteed a job when their judge leaves.

With Republicans in control of the House, confirming judges to the federal bench is one of the few things Senate Democrats can do without bipartisan support.

High-profile court rulings in recent months — including the Supreme Court overturning federal abortion rights last June and a case now before the court that could further restrict abortion — have served as a reminder of the importance of the federal judiciary, which former President Donald Trump largely reshaped with the help of a GOP-controlled Senate.

Feinstein's office announced in February that she would retire when her current term expires at the end of 2024, but some House Democrats have begun to call for her to resign now and let California's Democratic governor appoint a new senator to serve the remainder of her term.

While no senators have joined those calls publicly so far, Rep. Dean Phillips, D-Minn., told NBC News on Wednesday that "countless" Senate Democrats have privately asked Feinstein to step down.

Those calls come a year after a blockbuster report in the San Francisco Chronicle revealed that Feinstein's colleagues, including some of her fellow California Democrats, believed her memory had deteriorated to such an extent that she was mentally unfit to remain in the Senate. That report prompted Feinstein's defenders to accuse her critics of a sexist double standard, since numerous male lawmakers have served in Congress well into their 80s.

Sen. Patty Murray of Washington, the longest-serving Democratic senator after Feinstein, said at the Capitol on Tuesday that Bjelkengren's supporters were working hard to secure the votes needed — though she declined to say whether any Republicans had expressed support — and she was confident the Spokane County judge would be confirmed.

When asked what Democrats could do if Republicans didn't allow a temporary replacement for Feinstein, Murray said she would leave that up to the Judiciary Committee, of which she is not a member.

"This is what I know: I came in with Dianne Feinstein," said Murray, who was first elected in 1992 just months after Feinstein won a special election. "She is an incredible human being. I have watched her do amazing things. I really respect her and I expect her to make a good decision about herself with her family and her state, and I'm confident that will happen."

The Senate Judiciary Committee is scheduled to meet Thursday to vote on the pending nominees. Without the support of at least one Republican on the panel, Bjelkengren's nomination will not advance to a vote of the full Senate.

Orion Donovan-Smith's reporting for The Spokesman-Review is funded in part by Report for America and by members of the Spokane community. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper's managing editor.