Controversial Nominee Gets Senate Panel Nod for 7th Circuit

WASHINGTON (CN) – The Senate Judiciary Committee on Thursday approved four of President Donald Trump’s judicial nominees, including a nominee to the Seventh Circuit who did not receive approval from one of his home-state senators.

The committee narrowly voted to send Seventh Circuit nominee Michael Brennan to the full Senate on Thursday, over Democrats’ concerns about his respect for precedent and the process by which the Trump administration chose the former state judge for a seat on a federal appellate court.

A member of the conservative Federalist Society, Brennan received a hearing before the Judiciary Committee without the consent of Sen. Tammy Baldwin, D-Wis., breaking from the Judiciary Committee tradition known as the blue slip.

Under the blue slip tradition, senators must signal their approval before a judicial nominee from their state is allowed to receive a hearing. Baldwin did not return her so-called blue slip for Brennan, saying he did not receive the required support from the bipartisan Wisconsin group that has since 1979 helped Wisconsin senators recommend judicial nominees.

Sen. Chuck Grassley, the Iowa Republican who chairs the Judiciary Committee, told Baldwin he would consider Brennan because the White House consulted with both of Wisconsin’s senators before landing on him as the nominee. Grassley has said he will not allow Democrats to unilaterally hold up nominees for federal appeals courts that oversee multiple states.

“It is clear that the White House seriously considered your two proposed nominees,” Grassley wrote to Baldwin before Brennan’s hearing last month. “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.”

Democrats lamented the committee’s vote on Brennan as the end of the blue slip tradition, saying it weakens the ability of senators to provide advice on nominees.

“This is really a hallmark change in how we operate and it’s meant to give senators of a state from which an appointment comes an opportunity to review that and have some influence on the process,” California Sen. Dianne Feinstein, the top Democrat on the committee, said Thursday. “It’s worked for 100 years and now we’re doing away with it.”

But Sen. Ben Sasse, R-Neb., said Democrats were overlooking their role in the matter, pointing to their 2013 decision to eliminate the filibuster for most judicial nominees. Republicans last year did away with the filibuster for Supreme Court nominees in order to seat Justice Neil Gorsuch on the Supreme Court.

“I think the things you’re lamenting are sad, you’re pretending it started today,” Sasse told Sen. Sheldon Whitehouse, D-R.I., at the hearing Thursday. “That’s B.S. This is when we went to simple majoritarianism in 2013.”

At his nomination hearing, Democrats expressed concern about an article Brennan wrote for National Review in 2001 saying the doctrine of stare decisis – the idea that court must follow earlier decisions when considering cases with similar facts – “does not dictate slavish adherence to poorly reasoned precedent, nor does it transform originalist interpretation of a constitutional or statutory provision into judicial activism.”

Democrats pressed Brennan at his nomination hearing last month about the comments, raising questions about his respect for the tenet considered necessary for consistent rulings from the bench. But Brennan insisted his article referred to courts reconsidering their own decisions, not the decisions of superior courts to which they are bound.

“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 struck with horrible precedent such as Dred Scott or Plessy or Korematsu,” Brennan said at his nomination hearing.

The committee also narrowly approved the nomination of former Colorado Solicitor General Daniel Domenico, who is up for a seat on the U.S. District Court for the District of Colorado. Domenico served as the state’s solicitor general from 2006 to 2015 and now works at the Golden, Colorado, firm Kittredge.

Domenico faced questions from Democrats about a brief he wrote in a case regarding Colorado’s ban on same-sex marriage in which he said the many challenges to the law were “divisive and costly.”

Domenico explained the brief was meant as a request for the Supreme Court to step in and provide legal clarity to the issue, which at the time was the subject of numerous lawsuits.

In addition, the committee signed off on two nominees to the U.S. District Court for the Western District of Pennsylvania, both of whom President Barack Obama first nominated.

Both Susan Baxter, who currently serves as a magistrate judge on the court, and Judge Marilyn Horan, who serves on the Court of Common Pleas of Butler County, Penn., received unanimous support from the Judiciary Committee.

Baxter has been a magistrate judge on the court since 1995, while Horan has served on her state court since 1996.

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