Brennan’s confirmation shows that Republican leadership is rubber-stamping President Trump’s extremist vision for the courts. That vision is particularly dangerous for women, people of color, and LGBTQ individuals.
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. 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. 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:
From the Alliance for Justice:
There are good reasons for Sen. Baldwin to withhold her blue slip, as well as good reasons for Brennan to have failed to receive the requisite bipartisan support from the nominating commission. Brennan’s record is problematic and renders him unfit to serve on the Court of Appeals.
Brennan’s record and writings indicate that he holds a singularly troubling belief: that conservative judges should not follow precedents they disagree with. Along with archconservative judge Robert Bork, Brennan embraces the notion of the “anti-evolutionary purpose” of the Constitution, which raises questions about his own views of some of our nation’s most important Supreme Court cases. Not only that, Brennan has advocated for conservative judges to go farther and to take an active role in invalidating congressional actions with which they disagree, such as those that protect civil rights. He has celebrated Supreme Court decisions that have weakened civil rights, and encouraged conservative judges to be more vigorous in overturning acts of Congress. He has called for unchecked executive power and sought to weaken rights of criminal defendants.
Indeed, during his tenure as a trial court judge in Milwaukee, Brennan frequently ignored precedents, facts, and basic legal principles in his pursuit of this agenda.
In State v. Lord, 723 N.W.2d 425 (Wis. 2006), he ignored a U.S. Supreme Court case that was directly applicable and ruled instead to deny a motion to suppress evidence under the Fourth Amendment. His decision was so flawed that the prosecution conceded on appeal that the evidence should have been suppressed and the Wisconsin Supreme Court unanimously agreed “without further briefing or argument” since “the issue of law is well-settled requiring no extensive research or explanation” because U.S. Supreme Court case law “is clear.” Id. at 426.
From the National Women's Law Center:
The following is a statement by Anna Chu, Vice President for Strategy and Policy at the National Women’s Law Center:
“The Trump-Pence Administration has been stacking the courts with extreme judges, and next in line is Michael Brennan. Brennan’s confirmation shows that Republican leadership is rubber-stamping President Trump’s extremist vision for the courts. That vision is particularly dangerous for women, people of color, and LGBTQ individuals. Senate Republicans rushed through Brennan’s nomination carelessly, torpedoing a critical, nearly century-old process to decide whether a judge is fit to serve in a lifetime position. And his confirmation moving forward without approval from his home state senator is an attack on Senators’ constitutional role in the judicial nominee process. We call on the Senate to stop this outrageous takeover of the courts and reject disturbing judges like Brennan.”
The background report on Michael B. Brennan from the Alliance for Justice is here.