Michael Brennan, Wisconsin nominee to the 7th Circuit of Appeals, was narrowly approved by the U.S. Committee on the Judiciary on a party-line vote Thursday. His nomination now proceeds to the U.S. Senate for a confirmation vote.
The final tally was 11-10 with all committee Republicans supporting the nomination and all Democrats voting against.
Brennan, a partner at Gass Weber Mullins LLC in Milwaukee, served as a judge on the Milwaukee County Circuit from 2000 to 2008. The American Bar Association’s Standing Committee on the Federal Judiciary rated Brennan as “well-qualified,” although one member of the committee abstained from voting.
His nomination has sparked controversy because the Judiciary Committee held a hearing and vote even though Democratic Wisconsin Sen. Tammy Baldwin withheld her consent for the judicial candidate by not returning her blue slip.
Committee Democrats expressed their anger over judiciary chairman Sen. Charles Grassley’s decision to abandon the blue slip tradition. Although not a rule, the minority said the 100-year-old practice gave the senators from the nominee’s state an opportunity to review the candidate’s qualifications and provide information.
California Democrat Sen. Dianne Feinstein, ranking member of the committee, called it a “huge mistake” that would remove collegiality from the committee. Vermont Democrat Sen. Patrick Leahy, former chair of the judiciary committee, charged Republican committee members had lost their courage to say no to the White House, and the decision would do “lasting damage to the integrity of the committee’s judicial nominating process.”
Sen. Sheldon Whitehouse, D-Rhode Island, said the committee’s consideration of Brennan “shot a torpedo” into the bipartisan selection process used in many states that relies on an independent committee to vet and recommend judicial nominees. The Wisconsin Federal nominating Commission did not select Brennan.
Whitehouse also worried that the tradition of assigning circuit court seats to particular states within the jurisdiction would eventually be cast aside as well.
Sen. Ben Sasse, R-Nebraska, countered the Democrats should blame themselves. He said the end of the blue slip tradition was the “inevitable result” of the 2013 decision by former Senate Majority Leader Harry Reid, D-Nevada, to change the filibuster rule and allow judicial nominees to be confirmed by a simple majority.
Grassley also defended his decision. He pointed to Donald Schott, President Barack Obama’s nominee to the Wisconsin seat on the 7th Circuit, who was given a committee hearing despite the Wisconsin selection committee “not acting in accordance with its charter.” There was not reason, he continued, not to extend the same courtesy to Brennan that was afforded to Schott.
After the vote, Sen. Cory Booker, D-New Jersey, explained he withheld his support because of Brennan’s stance on implicit racial bias. In particular, Booker said, he was flabbergasted that Brennan did not acknowledge the impact of race on the judicial system despite evidence and data showing African-Americans are stopped by police and arrested more often than whites and given longer prison sentences.
Advocacy groups reacted strongly to the judiciary committee’s vote for Brennan.
The Alliance for Justice faulted the committee for advancing the nomination.
“The decision by Republican members of the Judiciary Committee to force the Brennan nomination to advance, over the objection of one of the nominee’s home-state senators, Sen. Baldwin, adds insult to injury and further undermines the checks and balances in our system of democracy,” said AFJ president Nan Aron. “We heard powerful statements today from Democratic members of the Committee about the destruction of senators’ rights and responsibility to provide advice and consent in judicial nominations, and today’s vote is one more step in that direction. As a result we now have an approach to judicial nominations that rewards partisanship over all else, and the public will pay the price.”
The Judicial Crisis Network applauded the vote.
“Michael Brennan, President Trump’s latest nominee to the Seventh Circuit Court of Appeals, is well-qualified and brings with him a robust background of experience as both a lawyer in private practice, and a judge in the Milwaukee County Circuit Court,” said Carrie Severino, JCN chief counsel and policy director. “Brennan is yet another example of President Trump’s commitment to nominating judges who will respect the Constitution and apply the law fairly. I look forward a Senate confirmation hearing for him soon.”