WASHINGTON ― The Senate voted Thursday to confirm Michael Brennan to a lifetime seat on the U.S. Court of Appeals for the 7th Circuit ― a vacancy that Republicans prevented President Barack Obama from filling for six years.
The vote, 49 to 46, was entirely partisan.
Until now, the seat was the nation’s longest circuit court vacancy. It was empty since January 2010, and it had been up to Wisconsin’s two senators to work with the White House to fill it. The reason it went unfilled for so long largely came down to one person: Sen. Ron Johnson (R-Wis.).
Obama nominated Victoria Nourse to the seat in July 2010. Johnson denied her a confirmation hearing for all of 2011 by refusing to turn in his so-called blue slip, a Senate tradition whereby home-state senators have the ability to stop or advance a judicial nominee in the Judiciary Committee. Nourse withdrew her nomination in early 2012, calling the system “broken.”
Nourse had been recommended for the court seat by Wisconsin’s judicial nominating commission. But after she withdrew, Johnson said he wanted a new system of picking judicial nominees. He disbanded the state’s nominating panel and worked with Sen. Tammy Baldwin (D-Wis.) to create a new one. That took another year.
Johnson then said the panel couldn’t put forward a 7th Circuit nominee until Obama nominated people to two other district court vacancies in the state. That added another year to the process. By the time the panel was seeking applications for the 7th Circuit, it was July 2014 and the seat had been empty for four years.
The commission had eight candidates to recommend by January 2015, but couldn’t reach a consensus. The process stalled out in May, so Baldwin submitted all of their names to the White House to let the administration pick someone. Johnson fumed that Baldwin’s move was “partisan” and said the nomination process should start all over.
By January 2016, six years after the seat became empty, Obama nominated Donald Schott — one of the eight people chosen by the state panel. Baldwin gave the green light for him to get a hearing by turning in her blue slip, and reluctantly, Johnson did too. Schott got his hearing in June 2016. But Senate Majority Leader Mitch McConnell (R-Ky.) blocked action on Obama’s court picks for the rest of the year, and Schott’s nomination expired.
That left the seat open for a Republican president, Donald Trump, to fill, which was Johnson’s and McConnell’s goal all along.
After years of denying votes to Obama’s judicial picks, McConnell is now aggressively moving forward with filling those empty court seats with young, conservative, lifetime judges. Trump has been nominating people at record-breaking levels, and many of his picks have records of being anti-LGBTQ rights, anti-abortion rights or anti-voting rights.
“This is my top priority in the Senate,” McConnell told conservative radio show host Hugh Hewitt last week. “By appointing and confirming these strict constructionists to the courts who are in their late 40s or early 50s ... I believe we’re making a generational change in the country.”
Brennan’s confirmation is rich with irony. He wrote an editorial endorsing the blue slip process in 2011 after Johnson refused to return his blue slip for Nourse. He didn’t earn the support of Wisconsin’s judicial nominating commission.
And the same Republicans who used blue slips to deny Obama the seat have now ignored the tradition of blue slips to help Trump fill it. Baldwin never turned in her blue slip in for Brennan, but Sen. Chuck Grassley (R-Iowa), the chairman, gave him a hearing anyway and Republicans sent his nomination to the Senate floor.
Democrats have fumed about the hypocrisy surrounding this court seat. Some already opposed Brennan, a 57-year-old Milwaukee lawyer, on his merits. Among other things, Brennan has discounted the concept of the “the glass ceiling” being real, and raised some eyebrows in his confirmation hearing when he couldn’t say if racial bias exists in the criminal justice system.
“How is Sen. Baldwin’s right to consult on judges for her state any less important than Sen. Johnson’s?” Senate Minority Leader Chuck Schumer (D-N.Y.) said Wednesday on the Senate floor. “It’s mind-bending hypocrisy. It’s an appalling double standard.”
Until this year, it had been three decades since the Senate confirmed a judge without positive blue slips from both home-state senators.
Before Brennan, the Senate held a confirmation vote in January for now-U.S. Circuit Judge David Stras of Minnesota. Then-Sen. Al Franken (D-Minn.) did not turn in a blue slip for Stras, but Grassley gave him a hearing anyway and sent his nomination to the floor.
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