WASHINGTON (CN) – The Senate on Thursday confirmed a former Wisconsin state judge to a seat on the Seventh Circuit, despite one of his home state senators not signing off on his nomination.
Michael Brennan, a partner at the Milwaukee firm Gass Weber and Mullins, cleared the Senate on a narrow 49-46 vote Thursday. Democrats staunchly opposed his nomination, in part because Sen. Tammy Baldwin, D-Wis., did not return her so-called blue slip, a form that has traditionally been used to indicate a home state senator consents to a judicial nomination going forward.
“In the grand scheme of things, the vote today may seem to my colleagues like a small one,” Senate Minority Leader Chuck Schumer, D-N.Y., said on the Senate floor before the vote. “One judge, for one circuit court. But in truth the vote on Mr. Brennan is part of a death-by-a-thousand-cuts to the grand traditions of bipartisanship and comity in the United States Senate. I know, all too well, that there is plenty of blame to go around, on both sides of the aisle. But if we don’t take a step back now, the Senate will soon become either a rubber stamp or a graveyard for presidential nominees, rendering our ‘advice and consent’ nearly meaningless.”
The Senate Judiciary Committee has traditionally required blue slips from both of a nominee’s home state senators before the nominee can receive a hearing, but Sen. Chuck Grassley, the Iowa Republican who chairs the committee, has said he will not allow a senator to hold up a nominee by not returning a blue slip unless they show the White House did not consult with them.
In a letter to Grassley before Brennan’s nomination hearing, Baldwin said she did not return her blue slip because Brennan did not receive enough support from her state’s bipartisan judicial nominating commission.
“Proceeding with consideration of Mr. Brennan’s nomination does not honor this longstanding tradition,” Baldwin wrote to Grassley earlier this year, referring to the blue slip. “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 bipartisanship feels like a fading concept.”
Grassley went forward with the nomination, noting that the White House “engaged in meaningful consultation” with both Baldwin and her Republican colleague, Sen. Ron Johnson. Grassley added he would not let “dysfunction” on the Wisconsin nominating panel hold up the Senate’s efforts to approve President Donald Trump’s nominees.
Particularly stinging to Democrats is the fact that Johnson used his refusal to return a blue slip to block the nomination of Victoria Nourse, whom President Barack Obama nominated to same seat in 2010. Brennan joined an op-ed in 2011 supporting Johnson’s right to block Nourse’s nomination.
“There are now two senators from Wisconsin from different political parties, so to exclude Johnson and those citizens who voted for him would be a purely partisan move,” the op-ed, which was signed by seven attorneys including Brennan, states.
A member of the conservative Federalist Society, Brennan served as a judge on the Milwaukee County Circuit Court from 2000 to 2008, having served as a prosecutor in the Milwaukee County District Attorney’s Office from 1997 to 1999.
In addition to the concerns about the process by which Brennan came to the Senate, Democrats and civil rights groups also raised concerns about Brennan’s history on the bench, specifically one case in which he sentenced four men to jail time after they slashed tires on vans Wisconsin Republicans were using for election day activities.
The men pleaded guilty in exchange for prosecutors agreeing to recommend only probation, but Brennan disregarded the recommendation and sentenced them to six months in jail. He told Sen. Chris Coons, D-Del., at his nomination hearing he handed down the sentence because the case was not a simple issue of vandalism.
“That was a case about voter suppression,” Brennan said at his nomination hearing in January.
Democrats also raised concerns about an 2001 article Brennan 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.”
Considered important to maintaining consistency in judicial decision making, the doctrine of stare decisis holds judges should follow earlier rulings when the same points come up in later litigation.
Brennan explained he was not calling for the tenet to be altogether abandoned and was referring to the ability of courts to reconsider their own decisions, not those of higher courts by which they are bound.
He told senators at his nomination hearing that limiting courts’ ability to reconsider their own precedent would leave infamous cases like Plessy v. Ferguson, which held racial segregation was constitutional, on the books.
“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 at his hearing.
Brennan’s confirmation comes one day after the Senate Judiciary Committee held a hearing on Ryan Bounds, a Trump nominee to the Ninth Circuit who has not received blue slips from either of his home state senators.
The battle over Grassley’s treatment of blue slips has simmered in the committee since Trump took office, first coming to a head with the nomination of Judge David Stras, a Minnesota Supreme Court justice the Senate confirmed to the Eighth Circuit in January.
The committee considered Stras despite then-Sen. Al Franken not returning his blue slip.