A Biden judicial nominee struggled to explain legal terms related to the Constitution‘s commerce clause during her confirmation hearing on Wednesday.
Sen. John Kennedy (R-LA) left California Judge Ana de Alba struggling for answers when quizzed on the dormant commerce clause, which is found under Article 1 of the Constitution.
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“This has been in the news a lot lately, and you’ll probably see it if you’re confirmed to the court of appeal,” Kennedy said. “Tell me about the dormant commerce clause.”
De Alba, who currently sits on a California federal district court, responded that she was “somewhat” familiar with the law and knew it could be found under the first article of the Constitution.
When reminded that a Supreme Court case related to the clause came out of California recently, de Alba still could not elaborate, but she apologized and said she would be better prepared next time.
“I apologize, Senator. You know, in my 11 years of practice and five years on the bench, I have not dealt with the dormant commerce clause,” de Alba said. “But if I am so fortunate enough to be confirmed and have to deal with it in the future, I would certainly—”
🚨WATCH:@SenJohnKennedy asked Judge Ana de Alba, a sitting district judge nominated by President Biden to the Ninth Circuit, what the Dormant Commerce Clause is.
Judge de Alba was unable to answer a question any first year law student would know. pic.twitter.com/b5Myj2KZrh
— JCN (@judicialnetwork) May 17, 2023
“You’ll look it up?” Kennedy interjected.
“Research it and, yeah, be prepared,” de Alba said.
The dormant commerce clause prohibits one state from discriminating against interstate commerce and disallows states to “unduly burden interstate commerce.” The law came back into focus recently after the Supreme Court ruled in favor of California’s Proposition 12, which said pork products imported into the state had to meet specific welfare standards.
De Alba also could not elaborate much on the commerce clause of the Constitution as a whole. She was, though, able to specify that the clause allowed Congress to create laws that affect interstate commerce. However, she failed to note that it also allowed Congress to regulate commerce with foreign nations and Native American tribes.
“So, my understanding about the commerce clause, like I stated, Senator, is that it is under Article 1 of the Constitution,” de Alba said. “It allows the legislature to create laws that allow for movement and things related to commerce in the United States and anything crossing state lines, things like that.”
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When asked for examples of other people the law allowed Congress to regulate, de Alba said, “It’s not coming to mind right now, Senator.”
Wednesday’s hearing was not the first time the Louisiana senator has stumped Biden’s judicial nominees. In March, Kennedy confounded Kato Crews, a nominee for district judge on the U.S. District Court of Colorado, over the Brady motion, which determines that the prosecution must give potentially favorable evidence to the defense.
