A second Biden federal trial court nominee was tripped up over Republican confirmation hearing questions, this time involving a senator’s inquiry about a criminal law tenet.
Kato Crews, a magistrate judge in Denver who’s been selected for a district court seat there, couldn’t define a Brady motion and how to analyze it at his confirmation hearing on Wednesday.
The motion, enshrined in the landmark Supreme Court ruling in Brady v. Maryland, is a request by a defendant to compel prosecutors in a criminal case to turn over potentially favorable evidence.
“I believe that the Brady case involved something regarding the Second Amendment,” Crews said. “I have not had an occasion to address that.”
The question was posed by Sen. John Kennedy (R-La.), who’s known for quizzing judicial nominees from both parties about the law and courtroom procedure.
Serving as a federal magistrate judge since 2018, Crews has presided over six cases that have gone to verdict or judgment, none of which have been criminal cases, according to his Senate Judiciary Questionnaire.
Crews noted in his questionnaire answers the limited role magistrate judges play in criminal cases, which he said includes considering petitions for issuance of search warrants, conducting preliminary proceedings, and presiding over the trial and final disposition of misdemeanor cases.
He was previously a founding partner of a small practice, where he focused on civil litigation and labor and employment law.
“It’s certainly possible that he never saw a Brady question,” said Carl Tobias, a law professor at the University of Richmond. “It may be asking too much to expect him to be intimately familiar with that.”
Crews is the second Biden nominee since January to stumble during Kennedy’s questioning.
Charnelle Bjelkengren, selected for a seat in the Eastern District of Washington, failed to answer inquiries at her confirmation hearing about the scope of Articles V and II and a legal theory about statutory interpretation. Article V deals with amendments and Article II is about the executive branch.
Bjelkengren attracted subsequent pushback from Republican senators after her slip up, and the committee has yet to vote on her nomination.