Wisconsin has for decades maintained a sound system for taking at least some of the politics out of the federal judicial-selection process.
Back in the late 1970s, the state’s U.S. senators established a process for reviewing potential nominees for federal judgeships. It was designed to ensure that federal jurists serving Wisconsin would be experienced, fair-minded and respectful of the state’s historic commitment to judicial independence and integrity.
At the heart of the process was the state’s bipartisan six-member Federal (Judicial) Nominating Commission. The state’s two U.S. senators would each select three commissioners and the six-member commission was then charged with soliciting applications to fill judicial vacancies, reviewing those applications and making recommendations of qualified candidates to fill those vacancies. The senators would then work with the White House and their colleagues to secure the nomination and the confirmation of able federal judges.
The Wisconsin standard, spelled out in the commission’s charter, said an applicant needed the support of at least five commissioners to be recommended. That was a high threshold. But there was a point to it. “To ensure that the senators would nominate qualified judges rather than candidates who were on either extreme,” Republican Sen. Ron Johnson explained several years ago, “the senators each selected three commissioners and required that any candidate recommended to the senators have the support of at least five commissioners.”
Unfortunately, Johnson has now shredded the standard he once celebrated.
Here’s what happened: Michael Brennan, a right-wing judicial activist who served a controversial tenure on the Milwaukee County Circuit Court bench in the 2000s, applied for what is known as the “Wisconsin seat” on the U.S. Court of Appeals for the 7th Circuit.
But Brennan had problems.
The Alliance for Justice reviewed Brennan’s record and concluded, in the words of AFJ President Nan Aron: “His record is that of a hard-right ideologue who has opposed civil rights and takes the dangerous view that conservative judges should not follow legal precedents they disagree with.”
The alliance identified many red flags:
• Brennan has been dismissive of the existence of sex discrimination, writing critically of the idea “that a certain group was denied an opportunity to advance by a ‘glass ceiling,'” adding, “Implicit in that phrase is the notion that rules were rigged against some individual or group.”
• Brennan has been outspoken in praising a U.S. Supreme Court decision that struck down part of the Violence Against Women Act, as well as another Supreme Court decision that people with disabilities can’t sue state governments for damages under the Americans with Disabilities Act. He criticized Wisconsin’s Supreme Court for ruling that certain caps on malpractice claims were unconstitutional.
• Brennan has written that conservative judges should only follow precedents they believe are “correct.” During his tenure as a judge in Milwaukee, Brennan in fact ignored precedents, facts, and basic legal principles in making several rulings.
• As the head of Gov. Scott Walker’s advisory committee for selecting state judges, Brennan supported virulently anti-LGBTQ candidates for the state bench.
• Brennan has argued for an extremely expansive definition of executive power, and believes national security threats justify sweeping use of authority. He wrote: “The greater threat a war poses to domestic order … the greater deference exists to the executive’s suspension of civil liberties.”
Wisconsin’s bipartisan commission decided, well and wisely, that Brennan could not be recommended for the Appeals Court post.
But President Trump, who has been packing the courts with right-wing activists, had decided even before the commission performed its review that he would nominate Brennan. And Johnson opted to side with Trump, even after the commission refused to recommend Brennan.
In so doing, Johnson abandoned Wisconsin’s higher standard — despite having previously acknowledged that it had been put in place “to ensure that the senators would nominate qualified judges rather than candidates who were on either extreme ...”
Championing a nomination that was not recommended by Wisconsin’s bipartisan commission, Wisconsin's Trump toady chirped: “Our nation’s judicial system will be well served once he is confirmed by the Senate.”
Wisconsin’s serious senator, Tammy Baldwin, objected, warning: “This nominee is not a product of our Wisconsin Federal Judicial Nominating Commission. I am extremely troubled that (the) president has taken a partisan approach that disrespects our Wisconsin process.”
Baldwin declined to return the “blue slip” that, by Senate tradition, has been required from each of a nominee’s home-state senators to secure a Senate Judiciary Committee hearing. Historically, that would have stalled the Brennan nomination — just as the 2011 nomination of Victoria Nourse to the 7th Circuit was blocked when Johnson refused to return his blue slip. (At the time, Brennan wrote an op-ed column defending Johnson’s move.)
Baldwin’s attempt to preserve the Wisconsin standard — and the Senate tradition of respecting home-state sentiments and senators — was to no avail.
Urged on by Johnson, the Judiciary Committee advanced the Brennan nomination.
Last week, Johnson voted with the Republican majority for a cloture motion to force a vote on this nomination, and then Johnson voted to confirm Brennan — who was approved not with a Senate majority but by a narrow 49-46 margin.
Johnson sacrificed Wisconsin’s high standard on the altar of political expediency — doing the bidding of Trump rather than his constituents.
When Baldwin voted against confirming Brennan for a life term on the Appeals Court bench, she issued a chilling warning that a new era of disregard for the advice and counsel of the states and their senators was opening. “Today’s action disrespects my role as the junior senator from Wisconsin,” she told her colleagues. “Tomorrow it may well be you. Each of us is diminished in our own ability to represent the constituents who chose to send us here.”
While Baldwin embraced Wisconsin’s higher standard, Johnson served Trump and a warped vision of the federal bench as a playground for extremists who could care less about maintaining an independent and honorable judiciary.
John Nichols is associate editor of The Capital Times. firstname.lastname@example.org and @NicholsUprising.
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