Michael Brennan’s nomination for a lifetime appointment as a judge on a federal appellate court whose jurisdiction includes Wisconsin is tainted in ways that should make Wisconsinites wary.
The U.S. Constitution grants the president power to nominate federal judges “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 broke this practice by nominating Brennan, a Milwaukee lawyer and former circuit court judge. Brennan interviewed with the White House before even submitting his name to the nominating commission, which ultimately did not recommend him. The nomination of Brennan awaits Senate confirmation.
The Seventh Circuit is one of 12 regional federal appeals courts that decide legal questions vital to Americans’ daily lives. Because the Supreme Court issues ruling on the merits of only about 0.1 percent of the decisions issued by the regional appellate courts, federal appellate judges have immense power and responsibility.
Wisconsin’s Seventh Circuit seat has been vacant since 2010, longer than any other federal judgeship. The seat remains empty despite prior qualified nominees. Sen. Ron Johnson blocked President Obama’s 2010 nominee, Victoria Nourse, because the commission had approved her before his election.
The 2016 nominee, Don Schott, was approved by the nominating commission and received majority support from the Republican-controlled Senate Judiciary Committee. Johnson nonetheless refused to advocate Schott’s confirmation, which expired before a full Senate vote could be held.
Johnson complained that, in Schott’s case, the commission had not approved enough candidates for the president’s consideration. But now that the White House has bypassed the bipartisan commission process entirely by nominating Brennan for the same vacancy, Johnson has expressed enthusiastic support.
Sen. Tammy Baldwin has decried President Trump’s decision to “turn his back on a Wisconsin tradition of having a bipartisan process for nominating judges.” The nominating commission seeks to mitigate the role of politics in choosing Wisconsin’s federal judges. It gives community members familiar with the judiciary and our state’s legal community a voice in identifying candidates with the necessary intellect, character and local support. The president then chooses among those candidates, with the Senate’s advice and consent.
Baldwin stands on firm ground—constitutionally and historically—in defending her advise-and-consent role. She has noted that, in the absence of commission approval, she must conduct a thorough review before approving anyone for a lifetime judgeship.
The White House is determined to push through ideologically conservative nominees without a thorough vetting and at the expense of Wisconsin’s commission process. Judicial appointments will reverberate decades beyond 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, as he put it, “qualified judges rather than candidates who were on either extreme.”
Jeffrey A. Mandell is a partner at Stafford Rosenbaum LLP and chair of the American Constitution Society for Law and Policy’s Madison Lawyer Chapter. This column was distributed by the Progressive Media Project, affiliated with The Progressive magazine.