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Legal Beagles 101
Have you ever seen the 1973 movie The Paper Chase? The movie is, among other things, about the rigors of law school. In the movie, the students live in fear of being interrogated in front of their Contract Law class by the legendary and demanding Professor Kingsfield. Below is a clip from the movie which shows this process in action (it’s about three minutes long).
Well, Professor Kingsfield has nothing on Senator John Kennedy (R-LA) when it comes to asking difficult legal questions. Kennedy sits on the Senate Judiciary Committee, and the other day, that committee held a confirmation hearing for several Biden Administration judicial nominees to the Federal District Court. One of those nominees is Charnelle Bjelkengren, who has 21 years of legal experience, 12 years as an Assistant District Attorney, and nine years as judge serving on the highest trial court in the state of Washington. Senator Kennedy asked her what Article V and Article II of the U.S. Constitution did. These two questions stumped her. You can see the exchange below.
When a Trump nominee couldn't answer similar questions posed by Sen. Kennedy back in 2017, the nomination was withdrawn https://t.co/TjzUFmsaNx
— Lawrence Hurley (@lawrencehurley) January 26, 2023
I’m neither a lawyer nor a judge, but I knew what Article II and Article V of the US Constitution do. Article II describes the Executive Branch of our Federal government, while Article V sets out the rules for amending the Constitution. In fact, as long as I’m at it, let me list the parts of the Constitution below in case of the highly unlikely event that you or I are ever nominated to a position in the Federal Judiciary we will at least be able to answer Senator Kennedy’s questions in our confirmation hearing.
The Constitution has the following parts:
- Preamble – Describes the purpose of the document
- Article I – Describes the Legislative Branch of the Federal Government
- Article II – Describes the Executive Branch of the Federal Government
- Article III – Describes the Judicial Branch of the Federal Government
- Article IV – Describes the relationship between the several states and the Federal Government
- Article V – Sets out the rules for amending the Constitution
- Article VI – Not sure how to describe this – just some miscellaneous stuff plus the provision that the Constitution is the supreme law of the land (I’m pretty sure I’d have missed this one if Kennedy had asked me this yesterday)
- Article VII – Sets out the rules for ratifying the document
- Closing Endorsement – This contains the signatures of those who chose to endorse the Constitution at the convention.
- Amendments to the Constitution – The various amendments follow in order at the end of the document.
OK. Don’t worry. There won’t be a quiz on this.
Senator Kennedy also asked Ms. Bjelkengren what purposivism is for which she also had no answer. I had no idea what this is and so had to look it up (both the term and the spelling thereof). It turns out that purposivism or the purposive approach is a method of legal interpretation. It seems like something a federal judge should know, but I’ll leave it to those who know more about the subject to decide.
This is not the first time basic questions about the Constitution and the law by Kennedy have tripped up a judicial nominee. In 2017, one of President Trump’s judicial nominees, Matthew Peterson, withdrew his nomination after failing to answer similar questions by Senator Kennedy.
I dunno, but I think I kinda like Kennedy’s Law 101 questions for nominees. It’s certainly better than the usual pattern in which the Senators spend most of their question time showing how much they know about complicated legal issues and the nominees find ways to say absolutely nothing of consequence in response. Then again, if Kennedy wanted to really make the nominees sweat, he should ask the toughest question of all.
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Published in General
Georgia Tech did that when I was there in the mid-fifties. but not with an Engineering course. Tech did it with three quarters of freshman English composed of literature and essay writing. It worked to reduce the entering class to manageable levels.
I well remember the acting Dean of the Law School greeting us entering 1Ls with the same routine, Aug. 1974, at a Big 10 School of Law.
Even the crappy technical trade school I went to did that. It was state supported so had to admit people. There were 35 programs offered. Out of the 8500 students, 4500 were in one program. Mine. But three quarters of Assembly language right after the Intro took care of that in a hurry. Out of the 65 in my Intro class, I believe 4 of us graduated.
What I remember most about watching The Paper Chase movie and TV show was that it was about working yourself nearly to death and thus winning a date with e bionic woman… wait, almost.
it was about students studying really, really hard and suffering so they could know things – the way to a lucrative (perhaps) professional career. I interfaced this with the -some of us might remember- when Joanie in Doonesbury was going to law school. Yeah, a comic strip (and a thread that was pretty funny), but the characters we met were serious students and were working hard to learn and loving it.
Knowing the law is all about mastering the rules to the game and then being able to argue – and win – the most minor points thereof. There is, thus, an expectation that the law school grad has at least minimal expertise in the fundamental rules.
Judge KBJ at least had the political sense of what she could get away with. This one, on the other hand, doesn’t have the chops beyond an administrative assistant- someone who might know what to find and where, but the manager has to verify and likely clarify-down the request.
Interviews are the time to shine, nothing impresses more (to a good hiring manager with the goal of hiring smart people) than providing a response that not only is correct, but shows, politely, that you’re smarter than the interviewer.
My kids can explain the nuances of the rules to Monopoly better than this twit, I bet.
Your kids probably spent more time playing Monopoly than Ms. Bjelkengren did actually practicing the law.
Time, and money too!
When I look back on the tens of thousands of dollars I spent on Monopoly properties as a young person, and think what I could have had now if I had saved it all…
It’s the prep thing. I would think you’d spend weeks prior to the hearing reviewing prior questioning, prep on the basics (structure of the Constitution), and have a few case examples in mind based on assumptions you can make about what they’ll ask you.
Can’t imagine not being able to answer those Article questions. I get it, no one’s actively looking at that structure on a daily basis but in prep for a grilling, with tons of prior hearings available to watch, why you wouldn’t have that sh*t straight from the gate.
It’s a job interview. Be prepared.
Another great Paper Chase scene (at a previous class, Professor Kingsfield had placed the shroud of death over Hart)
But every time I read of a Constitutional issue they always cite at least the Article it’s found in.
If you are a voting age citizen of the United States you should have read it over.
I recall young women – and some young men- running out of the lecture theatre in tears. I never did; but I stayed close to the door.
Best scene in that movie is Kingsfield saying to a flustered student “Here’s a dime. Call your mother and tell her you will never be a lawyer.”
The fact package in Hawkins v. Magee would never be brought as a contact case today but would have been a med mal tort case. It was an archaic case and a stupid way to start a first-year Contracts class. Kingsfield was a lousy prof and a jerk.
It is tough not to know at least the first three Articles given that they establish the three branches of the federal government. Not knowing Art V is almost forgivable given that it is not the basis of any litigation that ever readily would come to mind. Also, because this nominee was sponsored by Sen Murray, herself perhaps the most limited intellect in the Senate, expectations should have been lowered.
I confess that even though they gave me an EE degree (granted, it may have been partly out of sympathy), and I do know what “Resistance”, “Fourier Transform”, and “Electromagnetic Permeability” are, if it should turn out that they were covered in Chapters 2, 7, and 18 of my EE book, respectively, and I appeared before Congress and the Senator asked “Do you know what Chapters 2, 7, and 18 of your EE book say?”, I would have to say “I don’t know”.
But the “chapters” in this instance are each a page or two and are summarized in innumerable texts and contexts.
And if Resistance always and only appeared in the second chapter of every physics book, l’ll bet you could explain the gist if you were were asked about “chapter two.”
If your EE book was only four pages long, with only six chapters that nonetheless encompassed the totality of engineering, I would certainly expect you to remember it. Particularly if discussion of engineering were common among the population at large. There are references in popular media to Article 3 courts, Article 2 powers and Article 5 conventions. I know them; why doesn’t she?
You wouldn’t have any problem rattling this off:
maybe excepting the theological implication.
I watched that movie just before starting law school. I even had a first-year torts professor who was in style and forcefulness very much like Kingsfield. I was terrified of him and yet, I learned more from his class in that first semester than in my other less contentious 1L classes.
I think the reason Hawkins v Magee was brought up and is still taught as a contracts case is first, the plaintiff wanted to enforce the guaranty, a contractual matter, not a tort; and second, to illustrate a measure of damages, which measure is the loss, i.e., the difference between what a person had before versus what they lost as a result of the defendant’s actions. Whether it was breach of a guaranty/contract then or a tort today, a similar basic rule of damages applies.
I am however in total agreement with your points that this nominee was a Patty Murray endorsement. Remember, too, the nominee went on the Superior Court bench in 2019, having been nominated by that other luminary intellect in our state’s public life, Jay Inslee, who has to be the dumbest governor in our state’s history. Inslee and Murray — what a pair.