Milwaukee lawyer Michael Brennan confirmed for U.S. Court of Appeals, ending long vacancy amid bitter partisan dispute

WASHINGTON – Milwaukee lawyer Michael Brennan was confirmed for a key federal judgeship Thursday, filling the oldest appellate vacancy in the country but deepening a partisan schism in the U.S. Senate over judges.   

Brennan will take a seat on the 7th Circuit Court of Appeals in Chicago that has stood open since 2010 amid a bitter political standoff.

He was confirmed 49-46 with only Republican votes, over the objections of Democrat Tammy Baldwin, Wisconsin’s junior senator.

That has typically been enough to sink a nomination in recent years, because senators from both parties have enjoyed an effective veto over the selection of federal judges from their home states, a tradition known as the “blue slip.” 

Baldwin’s GOP colleague from Wisconsin, Ron Johnson, used his blue slip power to block one of Democratic President Barack Obama's nominees for the same 7th Circuit seat that his party filled Thursday.  

But with Republican Donald Trump now in the White House, GOP senators are effectively ending the veto power of home-state senators for nominations to the influential appellate courts, the second-highest rung of the federal judiciary.

Urging her colleagues this week to reject Brennan’s nomination, Baldwin warned on the Senate floor that his confirmation will “send the message neither this nor future presidents needs to respect the role of home-state senators in the selection of judicial nominees.”

Baldwin said she withheld her support because Brennan's "nomination does not reflect a consensus between the White House and home-state senators." 

She told her colleagues: “Today’s action disrespects my role as the junior senator from Wisconsin. 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.”

A Democratic colleague, Sheldon Whitehouse of Rhode Island, said shortly before the vote Thursday: “This is a day we will come to regret … I think we have more or less taken an irrevocable step to nationalizing the appointment of all circuit court nominees.”

Brennan's confirmation was applauded by Johnson. Brennan is an adviser to GOP Gov. Scott Walker and a former Milwaukee County Circuit Judge who practices law with the firm of Gass Weber Mullins. He was rated “well-qualified” for 7th Circuit seat by the American Bar Association. Walker hailed his confirmation Thursday. 

Speaking on the Senate floor Wednesday, Johnson lauded Brennan’s “intellect …humility and his strong commitment to justice and the rule of law,” and said, “There is no reason whatsoever he should not receive a strong bipartisan vote for confirmation.”  

Johnson noted that the blue slip has not always been treated in the Senate as an absolute veto power by home-state senators. And he defended his party’s decision to weaken the blue slip, even though Johnson used it to great effect when he was in the Senate minority under a Democratic president.

After his 2010 election, Johnson blocked Obama’s first nominee for the seat, Victoria Nourse, saying he had no input into it. Then he used the leverage of the blue slip to insist on changes that gave him equal say with Democrats on the state’s bipartisan nominating commission, which vets federal judicial nominees. That delayed a new nomination for the 7th Circuit.

Johnson ultimately consented to Obama’s second nominee for the seat, Donald Schott.

But by then it was the final year of the Obama presidency, and the Republican leader of the Senate, Mitch McConnell, refused to act on that nomination, leaving it vacant for Obama’s successor to fill. 

Asked in an interview why he supported ending a home-state senator's veto power over judicial nominations when he was able to exercise that same power under a Democratic president, Johnson said the situation was different now. He said that because Senate Democrats had ended the filibuster for most presidential nominees several years ago, there was no way for the minority to back up a home-state senator's objections — and therefore no reason for the majority to give a home-state senator that power.  

"Why would the majority allow the tyranny of the minority?" said Johnson.            

While Johnson and Baldwin have cooperated on several nominations for federal prosecutor and federal district court, that cooperation broke down three years ago over the high-stakes vacancy on the 7th Circuit, with the two senators accusing each other of playing politics and poisoning the process.

That feud continued this week. Baldwin noted in her floor speech Monday that while Brennan won the backing of four of the six members of the state’s judicial nominating commission (made up of three appointees from each senator), the commission’s charter requires five votes to win its recommendation. 

Johnson blamed Brennan’s failure to win five votes on Democratic partisanship.

Baldwin said there was no meaningful consultation with her by the White House, and that Brennan was interviewed by the White House for the vacancy before the state’s nominating commission had a chance to review applicants for the seat. She said she was "not being accorded the same respect" as a home state senator from the GOP majority that Johnson received when Democrats were in power.   

Johnson blamed the failure of Democrats to fill the vacancy during Obama’s presidency on their own inaction prior to Johnson's election in 2010 and on Baldwin’s “politicization” of the process.

When Democrats controlled the Senate, Judiciary chair Patrick Leahy of Vermont treated the blue slip as an absolute veto power by home-state senators, even when it made it harder to approve Obama’s nominees because of objections from Republicans in the minority. Leahy would not schedule a confirmation hearing if any senator from the nominee’s home state objected. Johnson called that "kind of silly" on Leahy's part in the interview Thursday. 

Senate Republicans broke definitively with that practice with the confirmation earlier this year of David Stras of Minnesota for an appellate seat, even though Senate Democrat Al Franken (now out of the Senate) withheld his support.

That made Stras the first appellate nominee since the 1980s to be confirmed over the objection of a home-state senator. Brennan is now the second.   

McConnell said he will preserve the “blue-slip” as a home-state senatorial veto when it comes to nominees to the U.S. District Court, a lower rung of the federal judiciary.

But Johnson said Thursday, "I am trying to convince him otherwise." 

Baldwin recently declared her opposition to Trump’s nominee for federal judge in the Eastern District of Wisconsin, Gordon Giampietro, potentially derailing that nomination.

Some outside observers have applauded the weakening of the blue slip as a step toward filling judicial vacancies more quickly. Others see it as a negative development for the Senate. 

"It undermines the institution of the Senate in the long run," said Carl Tobias of the University of Richmond, a law professor who follows judicial nominations. "Home-state senators will have less prerogative to say who sits (on the bench) in their states, and the president can stuff them down their throats."