Wednesday, while the media continued to focus on the fallout over the impotency of Senate Minority Leader Chuck Schumer, D-N.Y., in leading the Democrat’s unnecessary government shutdown, Republican leaders in the Senate concentrated on the courts. Sen. Chuck Grassley, R-Iowa, chair of the Senate Judiciary Committee, moved forward with hearings on President Trump’s judicial nominees — including consideration of the president’s nominee to serve on the U.S. Court of Appeals for the Seventh Circuit, Michael B. Brennan.
Trump nominated Brennan to fill the Wisconsin seat on the court of appeals in early August, but Sen. Tammy Baldwin, D-Wis., held up Brennan’s appointment by refusing to signify her acquiescence to the president’s nominee by returning her “blue slip.” But because “blue slips,” as Grassley explained, do not serve as “single-senator vetoes,” Grassley moved forward with the hearing with hopes of finally filling the circuit court seat that has been vacant since January of 2010, explaining:
Senator Ron Johnson returned his blue slip for Mr. Brennan. Senator Tammy Baldwin declined to return hers. I’ve nevertheless concluded that Mr. Brennan should receive a hearing. As I’ve explained, a negative or unreturned blue slip won’t necessarily prevent a Circuit Court nominee from receiving a hearing, unless the White House failed to consult with home-state senators before choosing the nominee.
After reviewing the record, it’s clear the White House adequately consulted with Senator Baldwin regarding the nomination. In addition to Mr. Brennan, the White House also considered two candidates Senator Baldwin suggested.
While Brennan’s stellar performance over the course of Wednesday’s two-hour hearing should cement his confirmation, critics had already instituted a preemptive strike on his nomination. Days before the hearing, the inaccurately named far-left organization People for the American Way in a piece headlined, "Moving Forward on Michael Brennan Nomination Would Mark Dangerous Surrender to Trump," condemned Brennan’s nomination as violating “a longstanding bipartisan arrangement between Brennan’s home-state senators, Ron Johnson and Tammy Baldwin.”
Challenges to Brennan based on the lack of a blue slip from Baldwin aren’t likely to succeed, however, given Grassley’s previous success in moving forward David Stras’ nomination to serve on the Eighth Circuit Court, without the typical two-senator blue slips. At the time, Grassley countered critics’ claims that he was abolishing a 100-year tradition of deferring to home-state senators’ views on judicial nominations, and last week, the Judiciary Committee advanced Stras’ nomination to the full Senate on a 13-8 vote. Stras, a former Minnesota Supreme Court justice, is expected to be confirmed in the coming days.
Nonetheless, liberals will likely resurrect the blue-slip business, but it won’t amount to much more than grandstanding for their base. It is unlikely, though, that we will see attacks on Brennan’s qualifications. Those are impeccable. Brennan, a cum laude graduate of the University of Notre Dame and a graduate of Northwestern University Law School, received a unanimous “well qualified” rating from the American Bar Association. And Brennan, indeed, is well-qualified: Following two federal court clerkships, Brennan served as a prosecutor in the Milwaukee County District Attorney’s office and later as a circuit court judge, before returning to private practice.
That will leave the Left with one final line of attack — that Brennan is an extreme ideologue. This angle is also unlikely to work given the Republicans’ current control of Congress, but rather than ignore the charge, conservatives should use the opportunity to push back against this typical tripe. Brennan is an originalist — not an ideologue. And in fact, originalists, by definition, cannot be ideologues because they view their role as interpreting the Constitution consistent with the original understanding of the founding document — not based on their own preferences or proclivities. Similarly, originalists view a judge’s job as interpreting the law — not superimposing their policy preferences on society.
If confirmed, Brennan would follow this philosophy on the Seventh Circuit, joining other originalist judges on the Chicago-based appellate court, such as the recently confirmed Amy Coney Barrett and fellow Wisconsinite Diane Sykes. He would also greet his former boss, Senior Circuit Court Judge Daniel A. Manion, but now as a colleague.
(Disclosure: Brennan and I clerked together for Manion.)
Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner's Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.
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