Sen. John Kennedy Asked Biden's Judicial Nominee a Basic Question - and the Rest Was Bad

P. Gardner Goldsmith | March 26, 2023
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Two weeks ago, Senator John Kennedy (R-LA) observed that President Biden’s newly proposed $6.9 trillion 2024 budget was so disastrous, it took his “breath away.” But many Americans might be happy that he got his breath back. Last week, the Senator used his breath, knowledge of reality, and wit, to put one of Biden’s leftist faves on the spot, and to allow the world to see the emptiness of his thinking.

Kennedy’s most prominent exchange likely came March 22, in the form of his verbal smackdown of Kato Crews, President Biden’s nominee to become a judge for the U.S. District Court of Colorado.

“Tell me. How do you analyze a Brady Motion?” asked Kennedy – and he didn’t mean a famous quarterback signaling a downfield receiver.

This should have been a lay-up, a home run, or, to keep the football theme running, it should have been an easy touchdown for a man who already is a U.S. Magistrate judge in Colorado.

But Crews fumbled. He not only fumbled, he did so in such glorious, stellar fashion, one wonders if he should be on any judicial bench at all.

“How I analyze a Brady Motion?”


“Senator, in my, uh, four-and-a-half years on the bench, I’m not – don’t believe I’ve had the occasion to address a Brady – uh – motion, in my career.”

“Do you know what a Brady Motion is?”

“Uh. Senator. In my time on the bench I’ve not had the occasion to address that, and so, uh, it’s not coming to mind, at the moment, what a Brady Motion is.”

With the exception of those who’ve been in cryo-suspension for half a century, this should hit pretty much everybody as one of the worst possible answers ever offered by a judicial nominee. The Brady Motion is so fundamental to jurisprudence and the sense of “fair play” in a government court (as fair as one might imagine, within a system forcing us to pay for it, regardless of our individual preference), most of us take the concept for granted. Without question, any judge ought to be familiar with it on a day-to-day basis, the way a fish is familiar with breathing water.

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It's the principle that prosecutors must disclose all evidence to defense attorneys, pre-trial, via the discovery process. And it was established in the landmark 1963 Supreme Court case, Brady v. Maryland.

Senator Kennedy appeared so alarmed, he probed some more.

“Do you recall the US Supreme Court case Brady v Maryland?”

At this point, Crews probably should have developed a sudden case of laryngitis.

“Uh. I do recall, uh, the name of the case, uh, Senator. Yes.”

“And, what did it hold?”

“I believe that the… Brady… case… uh… involved – Senator, I believe the Brady case involved something regarding the Second Amendment. It does not – I’ve not had occasion to address that. If that issue were to come before me, uh, I would certainly analyze that Supreme Court precedent, uh, and apply it.”

So, not only is Crews ignorant of the very motion that defense attorneys can make to secure all prosecutorial evidence via the discovery process – something that is about as fundamental to U.S. criminal procedure as the gavel is to the operations of court staffers – he actually thinks it has something to do with the horrifically unconstitutional 1993 Brady Firearms Act or the human propagandists and gun-grabbers of the Brady Coalition, itself?

That’s almost as bad as it can get.

But, if one looks even more closely at Crews’ answer, it gets worse. As a man who swears an oath to “protect and defend” the US Constitution, and to abide by its strictures, he errs saying that he will “apply” the Supreme Court precedent.

This is one of the areas where judges and many media rubes show utter ignorance of the U.S. Constitution and the oath that political officials take.

Government officers, military personnel, judges, and politicians do not swear oaths to “abide” by Supreme Court precedent. They swear oaths to abide by the Constitution, and if a SCOTUS precedent runs contrary to it, they have a sworn obligation to oppose that precedent – period.

In this case, the principle of discovery as reaffirmed in the Brady case does conform with the U.S. Constitution – specifically, with the Fifth and Sixth Amendments – but if a SCOTUS ruling (such as that in Roe v. Wade, for example) did not comport with the rules of the Constitution, any lower court judge faced with the breach is sworn to reject the errant ruling and to abide by the founding document.

But while Brady held up, Crews, on the other hand, simply could not have looked worse.