The Senate Judiciary Committee will hold a confirmation hearing Wednesday for an appeals court nominee from Wisconsin over the objections of Democratic Sen. Tammy Baldwin, a move that could portend a weakened influence of senators over federal judicial picks from their states.
By scheduling the hearing, Chairman Charles E. Grassley of Iowa sided with the Trump administration and the executive branch instead of his Senate colleague when it comes to the sway a senator has in recommending who should sit on the federal bench.
Baldwin has refused to give her consent to move Michael Brennan, President Donald Trump’s pick for the U.S. Court of Appeals for the 7th Circuit, through the confirmation process. She withheld her “blue slip,” part of a tradition that asks a home-state senator to sign off on a blue piece of paper before the committee moves forward with a confirmation hearing.
Grassley announced in November that he would schedule confirmation hearings for appeals court nominees even when a home-state senator objects and doesn’t return a blue slip — as long as the White House consulted with home-state senators.
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A spokesman for the Judiciary Committee said Grassley met with Baldwin last week to discuss the Brennan nomination and determined that her “intention is to not participate in the blue slip courtesy.”
“A review of the White House’s outreach efforts illustrates that Sen. Baldwin was adequately consulted before Mr. Brennan was nominated in August, so there is no reason to further delay committee consideration,” Judiciary spokesman Taylor Foy said in a written statement.
Baldwin said “no meaningful consultation” took place.
Brennan, a Milwaukee lawyer, went through the bipartisan Wisconsin Federal Judicial Nominating Commission process, established in 2013 by Baldwin and Republican Sen. Ron Johnson. But the commission did not support Brennan for the nomination, Baldwin said. The White House interviewed Brennan in March — before the Wisconsin commission started reviewing applications, according to committee paperwork on Brennan’s nomination.
“The President showed a complete disregard for a process that has served our state well for decades,” Baldwin said in a written statement Monday. “I am extremely troubled that the President took this partisan approach that disrespects our Wisconsin process.”
As for Grassley, Baldwin said he “should not show the same disrespect by breaking with 30 years of precedent and eliminating the blue slip process for this nomination.”
Senators in more than half of states have — or had — some form of formal process to recommend district court nominees, said Lena Zwarensteyn of the American Constitution Society, who focuses on federal judicial nominations. Wisconsin has one of the most formal and public processes for selecting appeals court nominees, she said.
White House Counsel Donald McGahn signaled the Trump administration would assert its power over such state judicial recommendations during a November speech to the Federalist Society in Washington.
McGahn said the “so-called commissions” are “troubling” in that members are not elected and have no political accountability, and he criticized senators who insist they can’t support anyone their commissions don’t interview and recommend.
“I’ve never heard the judicial commissions clause in the Constitution,” McGahn said at the time. “My Constitution says the president appoints judges with the advice and consent of the Senate, not a commission composed of plaintiffs’ lawyers and others who have business before the very people they will appear in front of.”
Brennan’s confirmation hearing comes as Democrats air concerns that Republican changes to the judicial confirmation process during the Trump administration have ceded power to the executive branch, including that the White House isn’t adequately consulting with them on whom to nominate.
Then-Sen. Al Franken of Minnesota refused to turn in his blue slip for the nomination of David Stras for the U.S. Court of Appeals for the 8th Circuit, saying the White House had not gotten his input. Grassley moved ahead after concluding Franken was using it as a de facto filibuster to block a nominee for political reasons, and Stras’ nomination has advanced to the Senate floor.
Oregon Democrats Ron Wyden and Jeff Merkley cited their state’s commission process as why they have not turned in their blue slips for Ryan Bounds, Trump’s pick for the U.S. Court of Appeals for the 9th Circuit. Bounds, a federal prosecutor, was nominated in September and is awaiting a confirmation hearing.
Sen. John Kennedy of Louisiana complained about the consultation McGahn gave him about a vacancy on the U.S. Court of Appeals for the 5th Circuit, but returned a blue slip and ultimately voted for the nomination of Kyle Duncan.
7th circuit history
The seat Brennan would fill has been vacant since 2010 in part because of the blue slip procedure. Johnson, who had just defeated Democrat Russ Feingold in the 2010 Senate election, declined to return a blue slip for Victoria Nourse, then-President Barack Obama’s pick for the seat.
Johnson returned his blue slip for Obama’s second nominee to the 7th Circuit spot, Donald Schott, whose nomination was advanced by the committee but then stalled on the Senate floor. Foy, the committee spokesman, said Grassley held hearings in 2016 for Schott and the chairman “is simply following the same process.”
“A dysfunctional state commission should not hinder the president’s prerogative to fill judicial vacancies, especially for a seat that has been vacant since 2010,” Foy said.