People For the American Way

Trump Nominee Shows Astonishing Ignorance of Racial Bias

News and Analysis

If you cannot or will not acknowledge that there is at least implicit racial bias in our nation’s criminal justice system, you have no business being confirmed to a court that regularly reviews criminal proceedings.  If you’ve served as a state trial judge and have no familiarity with the truly horrific data on racial disparities throughout our criminal justice system, you have no business asking to join a federal appellate court.

Unfortunately, that describes Michael Brennan, President Trump’s nominee for the Seventh Circuit Court of Appeals. In an exchange with Sen. Cory Booker at Brennan’s January 24 confirmation hearing, the nominee demonstrated why he should not be confirmed.

Sen. Booker: I understand the [1987 Supreme Court] case McCleskey v. Kemp, which demonstrated significant and compelling evidence that implicit racial bias has an impact in the judicial system.  Yet [the Court] threw it out as a factor for deciding, in this case, on death penalty cases. And I’m just curious, do you think that implicit racial bias exists in our criminal justice system?

Brennan: I apologize, Senator, I’m not familiar with the case.  I would indicate only that I would do my very best as a judge to ensure that no biases came in.

Sen. Booker: I think you’re aware that African Americans are stopped more than whites for drug searches in this country, that there is no difference between blacks and whites for using drugs or dealing drugs, but they are 3.7 times more likely to be arrested for it.

You’re aware of the data, I imagine, that says African Americans are more likely to get mandatory minimum sentences for the same crime.

You’re probably aware of the data that African Americans are more likely to serve more time for similar crimes.

Do you think that implicit racial bias exists in the justice system as you know it?

Brennan: One of the things I can say, Senator, is that I would to put my pro bono efforts into—

Sen. Booker: I’m not asking about you specifically, sir. I’m asking: Do you think racial bias exists in the criminal justice system?

Brennan: I can’t be in a position, senator, under the Canons of Ethics, of taking positions until I would be able to—

Sen. Booker: Sir! Sir! I’m sorry, the data—the evidence—is profound. I’ve had Republican nominees, Democratic nominees, FBI leaders in hearings I’ve had simply point out the fact that in the United States of America, implicit racial bias impacts the criminal justice system.

You have no opinion whether, on the facts, or no assessment whether racial bias exists in the American criminal justice system?

Brennan: I try to put my time and effort into those areas where I think it would have an impact. For example, for the Federal Defenders Office in Wisconsin, I—

Sen. Booker: That’s not the question I’m asking, sir. I’m asking—yes or no—do you think racial bias—implicit racial bias—exists in the criminal justice system? Yes or no?

Brennan: I would indicate, senator, absolutely if I could take a look at all those statistics and studies that you listed, I will be able to be in a position to offer—

Sen. Booker: You haven’t? You’re a judge in the United States of America, and you have not looked at issues of race in sentencing in the criminal justice system? I’m sorry, I know I’m over my time, Mr. Chairman. I find this astonishing.

Strong words, stated justifiably: “I find this astonishing.”

Astonishing, but for the fact that this is a Trump nominee. A commitment to racial justice has not been the distinguishing mark of Trump judges. Indeed, quite the opposite is true, as nominees like Thomas Farr and Mark Norris demonstrate.

It was bad enough that Chairman Grassley held a hearing on Brennan without home state Sen. Tammy Baldwin’s consent. But a nominee who cannot bring himself to utter the words “There is implicit racial bias in the American criminal system” has no place being part of that system.


Cory Booker, judicial nominations, Michael Brennan, Protecting Lower Courts, Seventh Circuit Court of Appeals