Liberals Try to Derail Brennan Nomination to 7th Circuit

Michael Brennan is one of the most qualified conservative legal minds in Wisconsin. Brennan, a former Milwaukee Circuit Court Judge who has since gone into private practice, is seen as one of the few judicial nominees with experience on both sides of the bench. It is because of this immense legal experience that the American Bar Association gave Brennan its highest ranking of “well-qualified” for the federal bench.

Yet for U.S. Senator Tammy Baldwin and liberal advocacy groups, he’s now “too radical” and controversial to be a federal judge. That’s the charge being laid forth by liberal groups like the Alliance for Justice (AFJ) in opposition to Brennan’s nomination to the United States Court of Appeals for the Seventh Circuit based out of Chicago. If confirmed, Brennan would take the seat of the late Judge Terrance Evans, a former Clinton appointee who died in 2011.

Nowhere in a 19-page dossier released by AFJ earlier this month does the group attack Brennan’s qualifications or legal standing. Instead,  AFJ President Nan Aron disparages Brennan as a “far-right judge” and “crony of Scott Walker.”

“The White House’s nomination of Michael Brennan has been flawed from the very start, when it became clear that President Trump had picked him before Wisconsin’s judicial nominating commission had even started interviewing candidates for the post. When the commission did evaluate Brennan, it found him lacking, but he was nominated anyway. What matters most to this White House is that judicial nominees be party loyalists, and Brennan is a close crony of Governor Scott Walker. His record is that of a hard-right ideologue who has opposed civil rights and takes the dangerous view that conservative judges should not follow legal precedents they disagree with.”

Aron is a well-known liberal activist who has led Democratic opposition to conservative judicial nominations in the past. If she or her group are involved, then one can all but assume the nominee is likely a qualified jurist who interprets the U.S Constitution via “Original Intent;” but one liberals worry could someday make it to the U.S. Supreme Court.

Another factor which may be at play into liberal opposition to Brennan is a contentious history related to the very seat he was nominated to. This seat – one of three vacant on the 7th Circuit – has been open since 2010 when Evans announced his intention to enter “senior status” on the court. Initially, former President Obama nominated Victoria Nourse, a chair at the University of Wisconsin Law School. However, many in the state legal community questioned having Norse given one of the two seats “reserved for Wisconsin” when her only connection to the state was the law school and that she hadn’t even joined the Wisconsin Bar Association until after being nominated to the 7th Circuit.

While never proven, it has been widely believed the Nourse nomination was largely about the returning of political favors from then-Vice President Joe Biden. Before joining academia, Nourse worked as an adviser and general counsel in Biden’s Senate office for a number of years; particularly on women’s issues and is widely seen as “the true author” of the original Violence Against Women Act.

As a result of these concerns and other issues, the Nourse nomination went nowhere in the Senate and it was eventually returned to President Obama in December 2011. She was never renominated. Shortly after her nomination was returned to the Obama White House, Nourse would leave the University of Wisconsin to become a professor at Georgetown Law School in Washington, D.C. and rejoin Biden’s staff as general counsel from 2014-15.

So feeling that Senator Ron Johnson intentionally scuttled the Nourse nomination, liberals have urged Baldwin to oppose the Brennan nomination by withholding her “blue slip” on him. “Blue Slips” are a privilege given to home state senators on various nominations which effect their home state. The AFJ claims Baldwin’s decision is her own, and not one caused by their advocacy.

Still with the seat’s vacancy now entering its eighth year, many in the state legal community believe the political tit-for-tat needs to end and someone with Brennan’s legal acumen should be seated. Writing in the Racine Journal Times, Rick Esenberg, President and General Counsel for the Wisconsin Institute for Law and Liberty and a member of Wisconsin’s Federal Judicial Nominating Commission – the group which suggested Brennan’s nomination to the White House – believes Brennan’s qualifications make him the kind of judge Americans want to see on the federal bench.

There are two things to keep in mind when reviewing a judicial candidate. The first is his or her experience and capabilities as a lawyer. As someone who has served on the Federal Judicial Nominating Commission for almost five years, I can tell you that the breadth of Brennan’s experience is unusual. He has been in private practice, having worked at two of Milwaukee’s finest law firms. But he also has experience in criminal law. As an assistant district attorney in Milwaukee County, he prosecuted felony and misdemeanor cases and lead the prosecution’s efforts in approximately 50 trials. And he has served on the bench. As a Milwaukee Circuit Court judge, he presided over nearly 300 trials. In 2005, he was affirmed by higher courts more than any other judge in the state. This trifecta of experience — civil law, criminal law prosecutor and judge — is unusual.

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Michael Brennan is unquestionably qualified to serve on the Seventh Circuit. More than that, he would be an outstanding selection because of his extensive experience, outstanding ability and deep understanding and respect for our Constitution and the rule of law. There is no reason, apart from petty politics, that he should not be swiftly confirmed by the U.S. Senate when they reconvene in 2018.

Whether groups like the Alliance for Justice and Senator Baldwin end up successful with blocking Brennan to the 7th Circuit remains to be seen. In October 2017, Senate Majority Leader Mitch McConnell (R-Kentucky) and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) announced plans to eliminate the “Blue Slip” tradition stating it had been abused in recent years by both sides. As a result, McConnell will view any home state senator withholding their slip as a “sign of how they’ll eventually vote on the nominee.”

The home-state senators have then historically had the opportunity to block a nominee from getting a Senate Judiciary Committee hearing and vote. McConnell told TheWeekly Standard‘s Fred Barnes in an article published Wednesday that such opportunities will no longer exist.

McConnell said Senate Republicans will now view the blue slip “as simply notification of how you’re going to vote, not as an opportunity to blackball” a nominee.

McConnell’s decision comes in the aftermath of Minnesota Sen. Al Franken’s decision to use the blue slip process as part of his effort to block David Stras’ nomination to the 8th Circuit Court of Appeals last month.

Since that announcement, nothing concrete has been said regarding the blue slip system or when a hearing for Brennan would be scheduled. Either way, thanks to a change in filibuster rules passed by Senate Democrats, all that would be needed for Brennan’s confirmation would be a mere majority of senators something he would likely garner with his legal resume.