A federal trial court nominee failed to answer a basic legal question during his confirmation hearing Wednesday, making him the second Biden judicial nominee to stumble under GOP questioning this year.
Judge Kato Crews, a Colorado magistrate judge who’s been nominated to the U.S. District Court for the District of Colorado, was unable to tell Sen. John Kennedy (R-La.), a former law school professor, what a Brady motion is.
The term “Brady Rule” or “Brady Motion” derives from the Supreme Court’s holding in Brady v. Maryland. The landmark 1963 case ruled that prosecutors must hand over evidence to the defense if that evidence is favorable to the defendant.
Typically, a Brady motion is filed by the defense attorney to compel the prosecutor to hand over exculpatory evidence that they might possess.
“Tell me how you analyze a Brady motion,” Kennedy asked during the hearing.
“Senator, in my four-and-a-half years on the bench, I don’t believe I’ve had the occasion to address a Brady motion in my career,” Crews said.
The Louisiana senator asked the judge whether he knew what a Brady motion was. Crews answered: “In my time on the bench, I’ve not had occasion to address that, and so it’s not coming to mind at the moment what a Brady motion is.”
When asked about the Supreme Court case Brady v. Maryland, Crews said: “I believe the Brady case involves something regarding the second amendment. I’ve not had occasion to address that. If that issue were to come before me, I would certainly analyze that supreme court precedent and apply it.”
Some social media users reacted to Crew’s admission with shock. Investigative journalist Mark Hyman commented on Twitter: “This is akin to a surgeon not knowing what a scalpel is.”
Attorney and former GOP Rhode Island Attorney General candidate, Charles Calenda, wrote on Twitter: “He’s nominated to be a federal judge. He needs to know about everything since he doesn’t get to pick his cases. And this is a basic [tenet] of criminal law.”
In her letter of recommendation (pdf) for Crews, however, Justice Monica Marquez of the Colorado Supreme Court praised the judge’s character, work ethic, and devotion to his community, and said that “In my own encounters with him, he is always thoroughly prepared for every meeting, every panel, every presentation.”
Legal Knowledge
Crews is not the first of President Biden’s nominees to be unable to answer Kennedy’s questions during a confirmation hearing this year.
In January, Charnelle Bjelkengren, a Spokane County, Washington Superior Court judge nominated to be U.S. District Judge for the Eastern District of Washington, was unable to identify certain sections of the constitution.
“Tell me what Article V of the Constitution does,” Kennedy asked.
“Article V is not coming to mind at the moment,” Judge Bjelkengren replied.
“How about Article II?” Kennedy asked.
“Neither is Article II,” Bjelkengren said.
Article II defines the powers of, and limits on, the presidency and the executive branch. Article V describes the specific process for amending the Constitution.
Both nominees have their confirmations pending before the Senate Judiciary Committee.
