7th Circuit Nominee Downplays Concerns Over His Views on Legal Precedent

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.

“The data and the evidence is profound,” Booker said. “I’ve had Republican nominees, Democratic nominees, FBI leaders in hearings I’ve had, simply point out the fact that in the United States of America, implicit racial bias impacts the criminal justice system. And you have no opinion on the facts, or no assessment, whether racial bias exists in the American criminal justice system?”

Perhaps the most pointed criticism of Brennan’s nomination was not of his judicial or legal background, but rather of the process that put Brennan before the committee on Wednesday.

Sen. Tammy Baldwin, D-Wis., did not sign off on Brennan’s nomination, declining to support Brennan in a document known as the blue slip that home state senators have traditionally been required to submit before the Judiciary Committee can consider a nominee.

That tradition has changed since Trump took office last year, with Sen. Chuck Grassley, the Iowa Republican who chairs the committee, saying he would no longer allow home-state senators to hold up judicial nominees under the blue slip tradition unless the White House did not consult with them on the nomination.

Baldwin told Grassley in a letter that she did not sign off on Brennan’s nomination because he did not receive enough support in a bipartisan judicial nominating commission that has helped Wisconsin senators evaluate potential judicial nominees since 1979.

Baldwin noted Sen. Ron Johnson, R-Wis., held up one of President Barack Obama’s nominees using the blue slip and told Grassley she was disappointed the standard changed with the administration.

“Proceeding with consideration of Mr. Brennan’s nomination does not honor this longstanding tradition,” Baldwin wrote. “Instead it endorses President Trump’s disregard of state selection processes and each Senator’s constitutional responsibility of advice and consent. This is a particularly troubling step at a time when institutions and traditions of our democracy seem under constant attack and bipartisan feels like a fading concept.”

Grassley responded to Baldwin’s letter by saying “dysfunction” on the Wisconsin judicial nominating panel should not hold up the Senate’s ability to consider judicial nominees.

“I am assured that the White House engaged in meaningful consultation with you and Senator Johnson regarding the Seventh Circuit vacancy,” Grassley wrote. “It is clear that the White House seriously considered your two proposed nominees. It is a president’s prerogative to select his preferred judicial nominees for the Senate to consider. I will not deny Mr. Brennan a hearing unless I am convinced the White House did not consult with you regarding the vacancy.”

The controversy over Grassley’s blue slip policy has simmered on the Judiciary Committee for the better part of a year, coming to the forefront during the nomination of Eighth Circuit nominee David Stras, whom the committee approved last week. Former Sen. Al Franken, D-Minn., did not sign off on Stras’ nomination, but Grassley went forward with a hearing nonetheless.

Brennan was the first of two judicial nominees the Senate Judiciary Committee heard from on Wednesday, with U.S. District Judge for the District of Colorado nominee Daniel Domenico following after Brennan finished his nearly two hours before the committee.

Domenico served as Colorado Solicitor General from 2006 to 2015 and now works at the Golden, Colorado, firm Kittredge.

Democrats questioned Domenico about his defense of Colorado’s ban on same-sex marriage while solicitor general, with Sen. Dianne Feinstein, D-Calif., asking him about a brief he wrote that said the numerous challenges to the law were “divisive and costly.”

Domenico explained he wasn’t trying to stop people from filing lawsuits, but rather was asking the Supreme Court to step in and give some legal clarity on the law.

“The point wasn’t that there was something improper with the filing of those suits, absolutely not, it was just that there was so much confusion in the states at the time that we needed certainty and finality,” Domenico said Wednesday.

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