When Republicans cannot gain public support for their work in Congress, they change the rules.
On the confirmation of lifetime appointments of federal judges, Americans tune out of the grand experiment known as American democracy. The result is the Koch brothers and billionaires take over.
This is on Sen.
Republicans will say or do anything, period. When Democrats fail at the Senate level citing tradition over need as Sen Leahy did, the price is heavy.
calling for the rejection of Trump's newest radical-whack for the federal judiciary.
Dear Senator:
On behalf of The Leadership Conference on Civil and Human Rights,
a coalition of more than 200 national organizations committed to
promoting and protecting the civil and human rights of all persons in
the United States, I write in strong opposition to the confirmation of
Michael Brennan to the U.S. Court of Appeals for the Seventh Circuit.
Mr. Brennan’s nomination is objectionable both on process and
substance grounds. Now that a Republican occupies the White House,
Chairman Grassley has reversed his own adherence to the century-old
practice of only scheduling hearings for judicial nominees who have the
support of both home-state senators. If he were following the practice
he required under the previous administration, Mr. Brennan would not
move forward in the confirmation process because Senator Tammy Baldwin
opposes this nominee and has not returned her blue slip. Mr. Brennan
has a far-right judicial philosophy that includes a disrespect for the
bedrock principle of
stare decisis. In addition, he served for
six years as the chair of Wisconsin Governor Scott Walker’s judicial
selection committee, and he helped appoint several judicial extremists
to the state supreme court. His nomination should be rejected by the
United States Senate.
Blue Slip Abuse: The scheduling of a hearing
for Mr. Brennan over the objection of home-state senator Tammy Baldwin
is the latest example of Senator Grassley’s deeply troubling disregard
of Senatorial courtesy and Senate tradition.
[1]
Senator Baldwin has not returned her blue slip for Mr. Brennan, so he
should not be granted a hearing. This is now the second time during the
Trump presidency that Chairman Grassley has abused the blue slip
tradition in order to help President Trump attempt to install a
conservative ideologue over the objection of a Democratic senator. When
he was chair of the Senate Judiciary Committee during the Obama
presidency, Chairman Grassley did not grant a hearing to any nominee
unless they had blue slips from both home-state senators.
The Constitution assigns to the Senate a separate and independent
role from the president for lifetime appointments to the federal
judiciary. The first prong of the Senate’s role is to provide advice
and the second is to determine whether to consent to a nominee’s
confirmation. The blue slip is a piece of paper that reflects the
important role that home-state senators have played for the last century
in providing advice to presidents about lifetime appointments in their
state. If the chair of the Senate Judiciary Committee allows judicial
nominees to advance without receiving the blue slips from home-state
senators, no president will be compelled to listen to their advice. A
recent Congressional Research Service report identified only three
judicial nominees who have been confirmed over blue slip objections.
[2]
The blue slip practice is one of the critical checks and balances that
helps maintain equilibrium among the branches of government. Over the
years, when the Senate majority placed partisan loyalty to the president
over the Senate’s institutional interest in independently carrying out
its constitutional responsibilities, the blue slip served as a vital
corrective. This institutional check has arguably never been more
important than today, with a president who undermines the legitimacy of
judges who disagree with his actions and who prioritizes loyalty to him
over fealty to the law.
Chairman Grassley’s decision to give a hearing to Mr. Brennan, and in
November to controversial Eighth Circuit nominee David Stras – over
the objection of a home-state senator – is a rejection of Senate
tradition and demonstrates his troubling double standard. Here is what
Chairman Grassley promised less than three years ago, during the
presidency of Barack Obama:
For nearly a century, the chairman of the Senate Judiciary Committee
has brought nominees up for committee consideration only after both
home-state senators have signed and returned what’s known as a “blue
slip.” This tradition is designed to encourage outstanding nominees and
consensus between the White House and home-state senators. Over the
years, Judiciary Committee chairs of both parties have upheld a
blue-slip process, including Sen. Patrick Leahy of Vermont, my immediate
predecessor in chairing the committee, who steadfastly honored the
tradition even as some in his own party called for its demise. I
appreciate the value of the blue-slip process and also intend to honor
it.[3]
Chairman Grassley’s strict observance of the blue slip tradition
during the Obama presidency led to the denial of hearings and votes for
18 Obama judicial nominees.
[4]
But now that President Trump is the one making judicial nominations,
Chairman Grassley has abandoned his promise and a century of Senate
tradition in order to jam through Trump’s far-right judicial nominees.
Chairman Grassley’s about-face should be condemned by senators of both
parties because it will strip them of their constitutional role of
providing advice and consent for judicial appointments in their states
from this and all future administrations. As Senator Hatch astutely
observed in 2014: “Weakening or eliminating the blue slip process would
sweep aside the last remaining check on the president’s judicial
appointment power. Anyone serious about the Senate’s ‘advice and
consent’ role knows how disastrous such a move would be.”
[5]
Ironically, Mr. Brennan himself has written in defense of Senate
deference to home-state senators in the selection of federal judges.
Following Wisconsin Senator Ron Johnson’s election to the Senate in
November 2010, he decided not to return a blue slip on Victoria Nourse,
who had been nominated by President Obama to fill the vacancy for which
Mr. Brennan has now been nominated. In a 2011 op-ed entitled “Sen.
Johnson only wants to have his say on Nourse nomination,” Mr. Brennan
and his co-authors wrote:
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…. Why can’t Johnson, elected by the
citizens of Wisconsin, participate in the selection of a judge for a
Wisconsin seat on the 7th Circuit, as Kohl did? Lady Justice is
blindfolded, which represents her neutrality. Neutrality comes from
applying the same procedures to all.[6]
In light of the position he took in this op-ed, it is the height of
hypocrisy for Mr. Brennan to have agreed to being nominated without the
support of Senator Baldwin. Senator Johnson’s obstruction of this
judicial vacancy during the Obama presidency is why it has become the
oldest circuit court vacancy in the United States; it has been vacant
since January 2010.
Rejection of the Wisconsin Tradition: Mr.
Brennan’s nomination is an affront not only to the Senate’s
constitutional advice-and-consent role as represented by the blue slip
tradition, but also to the Wisconsin federal judicial selection
tradition. After Mr. Brennan was nominated in August 2017, Senator
Baldwin declared: “President Trump has decided to go it alone and turn
his back on a Wisconsin tradition of having a bipartisan process for
nominating judges. I am extremely troubled that President Trump has
taken a partisan approach that disrespects our Wisconsin process.”
[7]
The Wisconsin tradition, which goes back for decades, requires a
bipartisan commission – whose members are chosen by the two Wisconsin
senators – to solicit applications and recommend finalists for judicial
vacancies to the senators, who then decide which names to send to the
White House for consideration. The commission’s charter requires that
the commission only recommend applicants who receive votes from at least
five of the commission’s six members.
[8]
What is the purpose of the five-vote requirement? Here is an
explanation from Senator Johnson in 2015: “To ensure that the senators
would nominate qualified judges rather than candidates who were on
either extreme, the senators each selected three commissioners and
required that any candidate recommended to the senators have the support
of at least five commissioners.”
[9]
Mr. Brennan received only four votes, thus making him ineligible for
recommendation. He is just too extreme. Nonetheless, the Trump White
House went forward with Mr. Brennan’s nomination.
Mr. Brennan’s own Senate questionnaire reveals that he was
interviewed by the White House for this vacancy a month before the
Wisconsin bipartisan commission even began accepting applications.
[10]
The White House and Senator Grassley may claim there was meaningful
consultation with Senator Baldwin about filling this vacancy, but that
claim is belied by the timing of Mr. Brennan’s White House interview.
Scott Walker Appointee: From 2011 to 2017,
Mr. Brennan served as the chair of Governor Scott Walker’s Judicial
Selection Advisory Committee. In this position, to which he was
appointed by Governor Walker, Mr. Brennan made recommendations to fill
75 state judgeships,
[11]
and the judges appointed by Governor Walker have been uniformly
ultraconservative and out of the mainstream of legal thought. Two state
supreme court justices, Rebecca Bradley and Daniel Kelly, made
particularly offensive comments. In a 1992 newspaper column,
now-Justice Bradley wrote: “One will be better off contracting AIDS than
developing cancer, because those afflicted with the politically-correct
disease will be getting all the funding. How sad that the lives of
degenerate drug addicts and queers are valued more than the innocent
victims of more prevalent ailments.”
[12] She also wrote that conservative author Camille Paglia “legitimately suggested that women play a role in date rape,”
[13]
and that “Feminists whined about the ‘ordeal’ perjurer Anita Hill
suffered under the male-dominated Senate judiciary committee, yet they
vociferously supported members Herb Kohl over Susan Engeleiter and Paul
Simon over Lynn Martin.”
[14]
The other Walker supreme court appointee, Daniel Kelly, wrote in 2014:
“Affirmative action and slavery differ, obviously, in significant ways.
But it’s more a question of degree than principle, for they both spring
from the same taproot. Neither can exist without the foundational
principle that it is acceptable to force someone into an unwanted
economic relationship. Morally, and as a matter of law, they are the
same.”
[15]
Although the views of Justices Bradley and Kelly cannot be attributed
directly
An article entitled “Scott Walker ties himself to the Federalist
Society,” indicates that Governor Walker – much like President Trump –
has outsourced the selection of judges to the far-right Federalist
Society.
[16]
The article noted that the two extreme judges appointed by Governor
Walker to the state supreme court – Justices Bradley and Kelly – were
past presidents of the Milwaukee Federalist Society chapter. The
article also noted that Mr. Brennan was the founder of the Milwaukee
Federalist Society chapter, and he served as the chapter president from
1991 to 1999 and has been an advisor since 2000. This
out-of-the-mainstream legal organization represents a sliver of
America’s legal profession – just 4 percent – yet over 94 percent of
Trump’s circuit court nominees, and a significant number of his district
court nominees, have been Federalist Society members. In the article
discussing Governor Walker’s reliance on Mr. Brennan and the Federalist
Society in making state judicial selections, a prominent Milwaukee
attorney, Craig Mastantuono, observed: “The Federalist Society is the
developmental league for the takeover of the conservative movement in
the judiciary in the United States and they’ve been quite effective in
getting the far right into positions of power in disproportionate
numbers in the state and federal judiciaries. It’s an activist
movement. It’s an organized takeover.”
[17]
Far-Right Judicial Philosophy: Mr. Brennan believes that judges should dismiss the principle of precedent and
stare decisis
when it conflicts with their personal, ideological view of how the
Constitution should be interpreted. This view is antithetical to the
rule of law and the clear obligations of lower court judges. In a 2001
National Review op-ed, Mr. Brennan wrote: “If, after reexamination of a legal decision, a court concludes that the ruling was incorrect,
stare decisis does not require that the rule of that case be followed. To do so would violate a judge’s oath….
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. Bush-appointed judges
cannot accurately be labeled as activists for reexamining and following
only correct precedent.”
[18]
Mr. Brennan’s theory is at odds with the bedrock principle of stare
decisis, which the Supreme Court has said “promotes the evenhanded,
predictable, and consistent development of legal principles, fosters
reliance on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.”
[19]
In the same article, Mr. Brennan wrote: “The oath of a federal
justice or judge at 28 U.S.C. § 453 makes express that his or her duty
is first to the Constitution and the laws of the United States, not to
other judges’ interpretation thereof. That duty includes reexamination
of precedent to ensure that the correct law is applied.”
[20]
But this statute says nothing about what a judge should do if he or she
believes that the law conflicts with other judges’ interpretation of
it. Rather, the statute merely sets forth the basic judicial oath of
office in which a judge vows to perform all duties “under the
Constitution and laws of the United States.” Mr. Brennan’s
interpretation of this statute is alarming and a clear indication of
judicial activism. He seems to believe that judges should only follow
those precedents with which they agree, and that is a deeply troubling
approach to legal analysis.
Mr. Brennan’s far-right judicial philosophy has also led him to
praise Supreme Court decisions that limit Congress’s authority to help
victims of domestic violence and discrimination victims. In a 2001
Federalist Society blog post, he praised Supreme Court cases that struck
down portions of the Violence Against Women Act and the Americans with
Disabilities Act, and he wrote that “justices and judges faced with
activist legislatures are not required to roll over in the name of
judicial restraint.”
[21]
In his tight embrace of limited government, Mr. Brennan also opined
that “Legal reasoning that could result in truncating a small part of
Congress’s power is not activism. It is not second-guessing. It is a
check in the balance of the separation of powers.”
[22]
In a 2005 article entitled “Are courts becoming too activist?,” Mr.
Brennan discussed examples of judicial activism by the Wisconsin Supreme
Court, and all the cases he cited involved plaintiffs who prevailed in
tort cases or defendants who prevailed in criminal cases.
[23]
Harsh Criminal Sentencing: When he served as
a Milwaukee County trial court judge, from 2000-2008, Mr. Brennan
presided over a case in which four young African-American men, including
the son of Congresswoman Gwen Moore, were charged with vandalism for
letting the air out of the tires on some vans that had been rented by
the Republican Party on election day in 2004. The Milwaukee District
Attorney reached a plea agreement with the defendants, who pled to a
misdemeanor in return for a recommended sentence of probation. Mr.
Brennan rejected the plea agreement and imposed a jail sentence of six
months, which one commentator called “one of the most blatant
demonstrations of racial inequality in justice in Milwaukee County.”
[24]
Mr. Brennan’s draconian approach to criminal sentencing can also be
seen in his work from 1998-1999 while serving as staff counsel to the
Wisconsin Criminal Penalties Committee, a position to which he was
appointed by Governor Tommy Thompson. The committee rewrote Wisconsin’s
criminal sentencing law, and, as explained by Mr. Brennan: “Parole was
abolished” and “The act also increased penalty ranges 50 percent for all
felonies.”
[25]
At the time he worked on this Wisconsin Criminal Penalties Committee,
Mr. Brennan also served as an Assistant District Attorney.
Partisan Activities: Mr. Brennan has been a
Republican Party activist for many years. He has not just made
political contributions, though he has certainly made his share: he has
contributed over $10,000 to Republican politicians, including a
contribution of $500 to Chairman Grassley in 2016. He has also served
as a fundraiser. He acknowledged on his Senate questionnaire that he
has served as a fundraiser for Ron Johnson for Senate in 2010 and 2016,
and for Tommy Thompson in 2012, among others. And he served on the
finance committee of the Wisconsin State Republican Party from 1992-1995
and from 1998-1999. If confirmed, Mr. Brennan would have to consider
recusing himself in any case involving the Republican Party or
Republican officials due to his partisan bias.
For the foregoing reasons, The Leadership Conference urges you to
reject the nomination of Michael Brennan to the U.S. Court of Appeals
for the Seventh Circuit. Thank you for your consideration of our
views. If you have any questions or would like to discuss this matter
further, please contact Mike Zubrensky, Chief Counsel and Legal
Director, at (202) 466-3311.
Sincerely,
Vanita Gupta
President and CEO
[1]https://medium.com/@civilrightsorg/top-ten-ways-grassley-is-choosing-politics-over-principle-in-judicial-confirmations-41ffe34e59bf.
[2]https://fas.org/sgp/crs/misc/R44975.pdf.
[3]https://www.desmoinesregister.com/story/opinion/columnists/iowa-view/2015/04/15/working-secure-iowas-judicial-legacy/25801515/.
[4]https://www.acslaw.org/acsblog/10-things-you-need-to-know-about-blue-slips.
[5]http://thehill.com/opinion/op-ed/203226-protect-the-senates-important-advice-and-consent-role.
[6]http://archive.jsonline.com/news/opinion/126042043.html/.
[7]https://www.jsonline.com/story/news/politics/2017/08/04/donald-trump-appoints-gov-scott-walker-ally-federal-7th-circuit-court-appeals/539442001/.
[8]https://www.wisbar.org/aboutus/governmentrelations/Documents/Wisconsin%20Judicial%20Nominations%20Commission%20Charter%202017.pdf.
[9]https://www.ronjohnson.senate.gov/public/index.cfm/2015/5/johnson-contacts-white-house-regarding-seventh-circuit-court-of-appeals-nomination.
[10]https://www.judiciary.senate.gov/imo/media/doc/Brennan%20SJQ.pdf.
[11]Id.
[12]http://host.madison.com/ct/news/local/govt-and-politics/rebecca-bradley-called-gay-people-degenerates-queers-in-college-newspaper/article_7b92ace5-d4d2-54af-a2de-54860858be47.html.
[13]http://host.madison.com/ct/news/local/govt-and-politics/rebecca-bradley-in-camille-paglia-legitimately-suggested-women-play-role/article_28cb63fe-d647-5ce3-b558-3497c8f6f418.html.
[14]Id.
[15]https://www.dailykos.com/stories/2016/7/22/1551102/-Judge-says-affirmative-action-and-slavery-are-morally-the-same-is-appointed-to-WI-Supreme-Court.
[16]http://host.madison.com/wsj/news/local/govt-and-politics/scott-walker-ties-himself-to-the-federalist-society/article_15b2e76a-5229-5ab1-b785-5e6c39087671.html.
[17]Id.
[18]https://www.afj.org/wp-content/uploads/2018/01/Brennan-QA-Clip-170-1.pdf.
[19]Kimble v. Marvel Enterprises, 135 S. Ct. 2401, 2409 (2005).
[20]https://www.afj.org/wp-content/uploads/2018/01/Brennan-QA-Clip-170-1.pdf.
[21]https://fedsoc.org/commentary/publications/hot-topics-judicial-activism.
[22]Id.
[23]https://www.afj.org/wp-content/uploads/2018/01/Are-Courts-Becoming-Too-Activist.pdf.
[24]https://afj.org/wp-content/uploads/2017/10/ZIEGLER_-WMC-ESTABLISH-NEW-LOW-IN-COURT-ETHICS.pdf.
[25]https://www.afj.org/wp-content/uploads/2018/01/Brennan-QA-Clip-159.pdf.
