Kennedy Reads Biden Judicial Nominee Her Reversals: 'It's Longer Than King Kong's Arm' (July 26, 2023)

Sen. John Kennedy, R-La., came to the confirmation hearing with a list. One by one, he read President Joe Biden’s judicial nominee Karoline Mehalchick the names of cases in which higher courts had overruled her. After the 13th, he stopped.

“I don’t have time to finish this list. I mean, it’s longer than King Kong’s arm here. You’ve been reversed a lot,” Kennedy said [1].

The video above shows the exchange from the Senate Judiciary Committee’s July 26, 2023, hearing. Mehalchick, a federal magistrate judge in Pennsylvania, was nominated to the U.S. District Court for the Middle District of Pennsylvania. Quotes are from the official hearing record, Senate Hearing 118-29, Part 8 [1].

”And You Were Reversed”

Kennedy started with a case called Yentzer v. Potter County. “Okay. And, you were reversed. Is that right?” he asked. When Mehalchick explained the review process, he cut to the point: “The higher court said, you incorrectly analyzed qualified immunity, and you incorrectly cited the Eleventh Amendment” [1].

On a third case, Dennis v. Sheridan, Mehalchick said the district court had declined to adopt her report and recommendation. Kennedy asked whether that was “the same thing as being reversed.” She called it “a different” thing. “The higher court” said “you were wrong,” Kennedy said. “The district court disagreed with my report. Yes,” she answered [1].

Kennedy kept going: Hassel v. Centric Bank, Ramsey v. Amtrak, McCracken v. Fulton County, Byrd v. Brittain, Daniels v. Capital One Bank and more. Each time, Mehalchick acknowledged that her ruling or recommendation had been rejected, at least in part [1].

The Penn State Case

One case drew questions from four Republican senators. In Spanier v. Libby, Mehalchick granted a habeas corpus petition from former Penn State President Graham Spanier, whose conviction Sen. Marsha Blackburn, R-Tenn., described as “endangering the welfare of a child” [1].

“You let him go on a habeas corpus petition. And the Third Circuit reversed you. Is that right?” Kennedy asked. “I directed that a new trial should be held with a different jury instruction. And the Third Circuit disagreed,” Mehalchick said [1].

“Well, the Third Circuit said you failed to cite, analyze, or properly apply the relevant caselaw. You were reversed. Right?” Kennedy pressed. “The Third Circuit reversed my decision. Yes,” she said [1].

Sen. Ted Cruz, R-Texas, asked whether the reversal was unanimous. “A three-judge panel of the circuit reversed my decision. Yes,” she said. When she could recall only one of the three precedents at issue, Cruz said: “I find it actually quite remarkable that for this hearing, you still don’t even know the three cases the Third Circuit said were critical to resolving the issue of law” [1].

Cruz also noted who had cheered the reversal. “Did then-Pennsylvania attorney general, and now Democrat Governor Josh Shapiro, praise the Third Circuit’s reversal of your opinion?” he asked. “I don’t know what his comments were, following the issuance of the opinion,” Mehalchick said. Shapiro “was effusive in his praise,” Cruz said [1].

”Were You Right, or Were You Wrong?”

Blackburn wanted a straight answer. “Do you think you were right, or wrong, in the Spanier case?” she asked. “No, that’s not what I’m asking. I said, were you right, or were you wrong?” [1]

“When I issued that decision, I thought I was doing it correctly. The Third Circuit found that I did it incorrectly,” Mehalchick said. Asked if she agreed with the reversal, she said, “Yes. I would stand by what” the Third Circuit had done [1].

“31 Times”

Sen. Lindsey Graham, R-S.C., put a number on it. “So, I’ve been told that you’ve been reversed 31 times. Does that sound about right?” “That sounds about right,” Mehalchick said, adding that “at least two-thirds of them were only in part” [1].

She defended her record. “My rate of reversal, in considering the body of my work over the last 10 years, including all civil and criminal decisions, is less than 2 percent,” she told Blackburn [1].

Democrats came to her defense. Sen. Mazie Hirono, D-Hawaii, said “out of more than 1,200 cases, only 31 involved any reversal, or a substantial criticism, by a reviewing court,” calling it “a pretty good batting average in anybody’s opinion” [1].

The Blue Slip

Kennedy closed by asking about former Sen. Pat Toomey, R-Pa. “Senator Toomey refused to send in a blue slip for you. Did he not?” he asked. “I’m not—I’m not sure exactly what happened. I know that this process has been ongoing for 2 years,” she said [1].

“You’re under oath,” Kennedy reminded her. “I am under oath, and I know I did not speak with Senator Toomey about his reasons,” she replied [1].

By the Numbers

13: cases Kennedy read in which he said she was reversed [1].
31: reversals Graham cited; “That sounds about right,” she said [1].
Less than 2%: her own figure for her reversal rate [1].
50-49: the Senate vote that confirmed her [2][3].
4: Republican senators who pressed her on the Penn State case, Kennedy, Graham, Blackburn and Cruz [1].

What Happened Next

She was confirmed by one vote. On Jan. 31, 2024, the Senate confirmed Mehalchick 50-49, according to the Congressional Record. Every Republican present voted no, and so did Democratic Sen. Joe Manchin of West Virginia [3]. She received her commission on Feb. 5, 2024, according to the Federal Judicial Center [2].

Cruz warned of a pattern. “There’s a long, and unfortunate, pattern in this administration of Joe Biden nominating individuals to serve on the bench who have a repeated pattern of showing excessive leniency to criminals,” Cruz said as the hearing closed [1].

Blackburn tied the hearing to another Biden nominee, Michael Delaney, who withdrew. For that exchange, see HYGO News’ page on Hawley and Delaney.