by Jeff Mandell, partner at Stafford Rosenbaum LLP and chair of the ACS Madison Lawyer
*A shorter version of this post was distributed in Wisconsin by the Progressive Media Project and previously published by The Capital Times, the LaCrosse Tribune, and the Sun Prairie Star.
The U.S. Constitution grants the President power to nominate judges for the federal courts “by and with the advice and consent of the Senate.” In Wisconsin, for nearly 40 years all presidents, regardless of party, have considered candidates vetted and approved by a nominating commission run by the State Bar in cooperation with both Wisconsin Senators. President Trump unfortunately broke this practice by nominating Michael Brennan for a Wisconsin vacancy on the U.S. Court of Appeals for the Seventh Circuit, though the nominating commission did not approve Brennan. Indeed, Brennan interviewed with the White House before even submitting his name to the nominating commission that ultimately did not recommend him.
This Wisconsin seat on the Seventh Circuit is the longest-standing vacancy on any federal court of appeals, open since January 2010. The seat sits empty despite prior qualified nominees. Senator Ron Johnson blocked President Obama’s first nominee, Victoria Nourse, in 2011. He complained that the commission approved her before he was elected. Senator Johnson then insisted that the commission itself was unfair, contrary to more than 30 years of precedent. On that basis, he prevented the commission from even convening to consider candidates. When Senator Tammy Baldwin was elected, she compromised with Johnson and restructured the commission. Under their agreement, the commission now includes three members appointed by each Senator, and five of the six commissioners must approve recommending any candidate for nomination.
President Obama later nominated Madison attorney Don Schott, who had received the requisite approval from five members of the reconstituted nominating commission. Schott’s nomination received majority support in the Republican-dominated Senate Judiciary Committee, led by Chair Chuck Grassley (R-Iowa). However, Johnson refused to advocate Schott’s confirmation, which expired before a full Senate vote.
When asked about his tepid support for Schott’s confirmation, Johnson expressed concern that the commission had not approved at least four candidates for the President’s consideration. However, now that the White House has ignored the bipartisan commission process entirely and nominated Brennan—who did not receive commission approval—for the same vacancy, Johnson has expressed enthusiastic support. In doing so, he has rebuked the very commission process he first demanded be rewritten to his specifications and then insisted must be followed to the letter under President Obama.
President Trump’s disregard for Wisconsin’s longstanding merit-based, bipartisan commission process is disappointing. The State Bar nominating commission seeks to mitigate the role politics and privilege play in choosing Wisconsin’s federal judges. It gives community members with vast knowledge of the judiciary and our state’s legal community a voice in identifying candidates with the intellect, character, and local support to preside over our courts. And it leaves the final decision among those candidates to the President, with the advice and consent of the Senate, as our Constitution provides.
Rather than allow Wisconsin’s commission to work, President Trump instead has delegated responsibility for choosing lifetime judicial appointees to Leonard Leo, the Executive Vice President of the Federalist Society, a right-leaning legal organization. (Brennan helped found the Milwaukee chapter of the Federalist Society.) Leo’s mission, in his own words, is to make the courts “unrecognizable.” Leo and the Senate majority want to ensure that the courts rule on critical issues including elections, the environment, money in politics, health care, voting rights, marriage equality, immigration, and reproductive rights in a way that benefits their political ideology. To facilitate the transformation of the judiciary, they are devastating longstanding norms that have served the Senate, our courts, and the country well. Senator Johnson is complicit in this process.
Senator Baldwin has decried President Trump’s decision to “turn his back on a Wisconsin tradition of having a bipartisan process for nominating judges.” Baldwin stands on firm ground, both constitutionally and historically, in defending her role to advise and consent on this vacancy. So far, Baldwin has not submitted her “blue slip” on Brennan. (Under long-standing practice, both home-state Senators must return blue slips before the Judiciary Committee will consider a nominee. The last time a nominee was confirmed over a home-state senator’s withholding of a blue slip was in 1936.) Baldwin has noted that, in the absence of commission approval, she needs to engage in thorough review before approving a nominee for a lifetime position on a federal appellate court.
The White House and the Senate’s Republican majority are determined to push through politically conservative nominees, without a thorough vetting and at the expense of the State Bar commission process. Lifetime appointments to the federal bench will reverberate decades beyond the end of this Congress and the Trump presidency. Wisconsinites should withhold support from nominees who have not undergone commission review, which Johnson himself has described as “a fair process” designed to ensure we have “qualified judges rather than candidates who were on either extreme.” Given the stakes, both in Wisconsin and across the country, Baldwin’s continued leadership in preserving advice and consent is vital.