Wisconsin judicial pick violated fair process

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.

Why Is Wisconsin—and 23 Other States—Challenging the Constitutionality of the Federal Supplemental Jurisdiction Statute?

by Jeff Mandell, partner at Stafford Rosenbaum LLP and Chair of the ACS Madison Lawyer Chapter.

Tomorrow, the Supreme Court hears argument in Artis v. District of Columbia, a procedural dispute about the interaction of federal jurisdictional statutes and state limitation periods. It is fairly dry stuff, so much so that it drew only two amicus briefs, far below average. But one of those amicus briefs, filed by the State of Wisconsin and joined by 23 others States, attempts to constitutionalize the dispute, with broad implications.

The Artis case is about the proper interpretation of the federal supplemental jurisdiction statute, 28 U.S.C. §1367. That statute authorizes federal courts with subject-matter jurisdiction over some claims to exercise jurisdiction over related state-law claims that could not independently be brought in federal court. The statute further provides that, in the event the federal court dismisses the claims that qualified for federal jurisdiction, the federal court has the option of maintaining jurisdiction over the state-law claims or dismissing them without prejudice.

The complication arises in subsection (d), which provides that, if the federal court dismisses a state-law claim, the limitation period “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” Does this mean, as Artis contends, that a plaintiff who files suit early in the limitation period retains the time remaining in that period as of the filing date, plus an additional 30 days? Or, as D.C. asserts, does the statute grant plaintiffs a 30-day window after dismissal to refile—and nothing more?

Each side makes arguments under traditional methods of statutory construction. But the most intriguing brief is Wisconsin’s, which argues that the federal Constitution tips the scales in D.C.’s favor. According to Wisconsin’s brief, Artis’s interpretation of §1367(d) would violate the Constitution. This is an aggressive position. Notably, D.C. has not even hinted at such a view.

Wisconsin roots its argument both in inherent principles of federalism and in the limitations of congressional power to establish rules for federal trial courts under Article III, Section 1. The basic idea is that States get to establish limitation periods for violations of state law and that Congress lacks power to override those state constraints because doing so is not “necessary and proper” to Congress’s role creating federal trial courts. Thus, Wisconsin reasons, “Congress would have no authority to enact [Artis’s] understanding of Section 1367(d).” (Br. at 22.)

To support this argument, Wisconsin hypothesizes the worst possible scenario, based on three criteria: (1) plaintiff files early in the limitation period; (2) litigation in the federal court is drawn-out for years before dismissal of the state-law claims; and (3) plaintiff delays refiling in state court for more than the 30-day grace period that all parties agree is provided by §1367(d). Where any one of these three criteria is absent, Wisconsin’s fears are unrealized. Artis mildly fits this scenario: she filed suit in D.C. court nine-and-a-half months after the three-year limitation period would have expired for most of her claims but for her federal suit.

Wisconsin argues that, because allowing Artis’s suit to proceed would, in effect, extend D.C.’s limitation period, it would improperly overwhelm local prerogatives. Of course, Wisconsin foresees situations more egregious than Artis: “the longer the state limitations period is extended, the greater the harm is to sate interests in avoiding state courts finding themselves awash in claims too stale to be adjudicated certainly.” (Br. at 21 (internal quotation marks omitted).)

This argument falls short in two respects. First, Wisconsin has to stretch for examples with is a significant extension beyond the state-law limitation period. Having presumably case a wide net and searched the tens of thousands of federal cases filed every year, Wisconsin found only seven examples worth citing—over the last 17 years. (See Br. at 20-21 (citing cases).)

Second, Wisconsin’s fearmongering about staleness is unconvincing. These cases involve parties who began litigating in federal court within the limitation period. That means both sides have notice of the dispute and bear obligations to preserve evidence. It follows that even a dismissal and delay before refiling in state court is unlikely to preclude a fair trial. And even if staleness is a concern, under Wisconsin’s worst-case scenario, the plaintiff—who decides when to refile in state court—bears the harm, as the party with the burden of proof.

That said, as weak as Wisconsin’s claimed harms are, the record contains little offsetting benefit to Artis’s preferred reading. Artis has indicated that plaintiffs who file early in the limitation period should have the benefit of the time they did not use earlier to reassess after dismissal of their federal claims. That’s not a slam-dunk argument, but it has some intuitive appeal. Further, it is not Artis’s obligation to defend Congress’s interests and prerogatives, and the United States has not filed a brief articulating its view.

Ultimately, Wisconsin’s argument is an intriguing one, but its brief seems rhetorically overheated. Wisconsin’s repeated invocation of limitation periods extended by years—a remote possibility constantly emphasized in the brief with italics—is strained. And the argument that, if Artis’s interpretation of §1367(d) holds, “there would be no stopping point to what Congress could do to state statutes of limitations” (Br. at 25), is a particularly unconvincing slippery slope. Perhaps these issues contributed to the denial of Wisconsin’s request to participate in oral argument.

In some ways, the most interesting aspect of Wisconsin’s brief—besides a thought-provoking argument—is the list of signatories. Twenty-three other states joined Wisconsin’s brief, and not all of them are represented by attorneys general who reflexively favor states’ rights over the federal government. Perhaps this is a symptom of a rising tide of progressive federalism. If so, challenging the constitutionality of an established jurisdictional statute is an odd choice of a test issue, especially as, were Wisconsin’s argument to prevail, courthouse doors would close a little more against plaintiffs.

Regardless, Wisconsin’s brief raises an unexpected issue and adds a new facet to this procedural dispute. It bears watching to see if the Court asks the parties about Wisconsin’s arguments or if the final opinion addresses the issue in a way that informs our understanding of what test federalism arguments will need to meet in determining whether a legislative enactment is indeed “necessary and proper” to fulfilling one of Congress’s enumerated powers.