WASHINGTON (CN) - President Donald Trump's pick for a seat on the Seventh Circuit downplayed Democrats' concerns Wednesday about his commitment to following precedent, saying he consistently applied principles set out in case law while serving as a Wisconsin state court judge.
"I will you tell you, as a judge myself, I had a very low reversal rate and one of the reasons I had a low reversal rate was my respect for precedent within that vertical stare decisis," Michael Brennan told Senate Judiciary Committee members Wednesday morning.
But Senate Democrats persisted in pressing Brennan on a 2001 article he wrote for National Review in which he said the doctrine of stare decisis "does not dictate slavish adherence to poorly reasoned precedent, nor does it transform originalist interpretation of a constitutional or statutory provision into judicial activism."
Stare Decisis is the doctrine under which courts follow earlier judicial decisions when the same points again arise in litigation.
Democrats raised concerns about his questioning of the judicial tenet, which is considered important for consistency in judicial decision making.
But Brennan insisted he was referring to courts being able to reconsider their own precedent, not the precedent of courts above them.
Referred to as horizontal stare decisis, Brennan said the ability for courts to reconsider their own decisions has been key to overturning infamous cases such as Plessy v. Ferguson, which held racial segregation was constitutional.
"The references within the article are, again, of course not to vertical stare decisis, or what I would do vis-a-vis a Supreme Court opinion, but rather with regard to treating it horizontally, where if there was never any re-addressing we'd be stuck with horrible precedent such as Dred Scott or Plessy or Korematsu," Brennan said.
Brennan served on the Milwaukee County Circuit Court from 2000 to 2008 before he left the court to join the Milwaukee firm Gass Weber Mullins. A member of the conservative Federalist Society, Brennan also worked as a state prosecutor from 1997 to 1999.
Brennan faced questions about his sentencing practices while on the court, specifically in one case in which Brennan sentenced four men to jail time after they slashed tires on vans that Republicans had rented for election day activities.
In sentencing the men, Brennan went against a plea agreement in which prosecutors agreed to only recommend they receive probation. Sen. Chris Coons, D-Del., asked Brennan about the decision to increase the penalty against the men, and Brennan explained he imposed the sentence because the men did not commit a simple act of vandalism.
"That was a case about voter suppression," Brennan said.
Four of the five men accused in the crime were black, leading progressive groups to criticize Brennan's sentence as racially biased. Sen. Cory Booker, D-N.J., pressed Brennan on whether he believes racial bias exists in the criminal justice system, but Brennan did not directly answer the question, saying he would need to look at statistics Booker cited as supporting his claim.
Booker was surprised a former judge would not be familiar with details about potential racial bias in the justice system.
