People For the American Way

Edit Memo: GOP Abuse of Power: Anything to Control Our Courts


Contact: Drew Courtney at People For the American Way

Email: [email protected]

Phone Number: 202-467-4999

To: Editorial Boards and Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: May 3, 2018
Re: GOP Abuse of Power: Anything to Control Our Courts

Senate Republicans are tearing up one institutional safeguard after another in order to give lifetime appointments to Donald Trump’s judges. They have made the United States Senate into the exact opposite of the deliberative chamber envisioned by the framers—a chamber that would not, in the words of Federalist 62, “yield to the impulse of sudden and violent passions, [or] be seduced by factious leaders into intemperate and pernicious resolutions.”

Unilaterally changing the rules based solely on who it benefits is the antithesis of the rule of law, and it is toxic to a democracy.

Next week’s scheduled cloture vote for Seventh Circuit nominee Michael Brennan of Wisconsin represents the most recent dismantling of longtime safety mechanisms. He is being considered over the strong objections of one of his home state senators, Tammy Baldwin. That is a sharp departure from how things have long been done in the United States Senate. Home state senators’ approval (or at least consent to a nomination going forward) is one of those little-known, practically invisible but inviolable safety mechanisms that has long served to protect our independent judiciary.

The Constitution divides responsibility for staffing our courts between the president and the Senate. This bifurcation limits the president’s ability to put dangerously unqualified people on the bench—but not when a narrow Senate majority is as hell-bent as the president to wholly take over and transform the federal judiciary. And while there are longstanding safety mechanisms designed to prevent exactly that, Senate Republicans are abusing their time in power to eliminate those mechanisms.

One of the most important of these is requiring the approval of both home state senators before considering a judicial nominee. Historically, the chair of the Judiciary Committee has generally not even scheduled hearings unless both home state senators consent (by returning a blue slip of paper), a century-old formalization of a practice dating back to our nation’s earliest years. Michael Brennan’s nomination would not have been processed in any other era, due to Sen. Baldwin’s opposition.

Indeed, this very Seventh Circuit vacancy is open only because Wisconsin Sen. Ron Johnson opposed and refused to return a blue slip on President Obama’s renomination of Victoria Nourse to fill it (she had originally been nominated before Johnson’s 2010 election victory). Among those praising Johnson’s use of this process at the time was none other than Michael Brennan, who is now reaping the benefits. In 2011, he wrote in the Milwaukee Journal Sentinel:

There are now two senators from Wisconsin from different political parties, so to exclude Johnson and those citizens who voted for him would be a purely partisan move. Johnson represents millions of Wisconsin citizens, just as Sen. Herb Kohl does and as Feingold did. In the same way those senators had their say in Nourse’s first nomination, Johnson should have his say.

[He] just wants to be heard and fulfill his constitutional duty of “advice and consent.” Why can’t Johnson, elected by the citizens of Wisconsin, participate in the selection of a judge for a Wisconsin seat on the 7th Circuit, as Kohl did?

Without the support of both home state senators, Nourse’s nomination went nowhere.

By design, this “blue slip policy” can be frustrating. When Democratic Sen. Patrick Leahy chaired the committee, he always honored the objections of home state senators, first for President Bush’s nominees and then for President Obama’s. Many Obama nominees were never considered because of the objections of a Republican home state senator. Even when the senators’ concerns were partisan, frivolous, based on falsehoods, or completely unknown, Sen. Leahy could be counted on to respect their wishes. This prevented consideration of a number of nominees. It also encouraged Obama to work closely with senators of both parties to find consensus nominees.

When Republicans controlled the Senate during Obama’s final two years, chairman Chuck Grassley adhered to the same practice. In a 2015 op-ed in the Des Moines Register, Grassley praised Leahy for:

steadfastly honor[ing] the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it.

And honor it he did, allowing his fellow Republicans to block hearings on Obama nominees like Lisabeth Hughes of Kentucky (Sixth Circuit), Abdul Kallon of Alabama (Eleventh Circuit), Myra Selby of Indiana (Seventh Circuit), and Rebecca Haywood of Pennsylvania (Third Circuit). Democrats were frustrated—but no more than Republicans had been in previous years when their positions were reversed.

Requiring the approval of both home-state senators ultimately enhances the Senate’s role in the confirmation process, each senator’s ability to represent his or her constituents’ interests, fosters bipartisan support and respect for our judicial system, and allows the chamber to carry out its responsibility to be a brake on “the impulse of sudden and violent passions.”

But this works only when the rules apply to everyone. In a properly functioning democracy, that consistency goes without question. But this is the Trump era: In order to get narrow-minded elitists ensconced in lifetime positions in the federal judiciary, Senate Republicans are throwing out whatever institutional checks and balances stand in their way.

We saw this last year, when the president nominated David Stras of Minnesota to the Eighth Circuit without consultation with then-Sen. Al Franken. Over Franken’s objections, Grassley held a hearing for Stras in November. Although Democrats raised the alarm about this dangerous move both in committee and on the Senate floor, Stras was confirmed with unanimous GOP support.

Michael Brennan’s confirmation process shows that Stras was not a one-time event. In fact, it is even worse than before: Brennan wasn’t simply selected without meaningful consultation with both senators. Trump chose to bypass the bipartisan nominee selection commission that Sens. Johnson and Baldwin had established. When the commission began accepting applications, the White House had already arranged for Brennan to fly to Washington for an interview. And two weeks before the commission intended to make its recommendations, Brennan learned that Trump planned to nominate him. (The commission interviewed Brennan but did not recommend him.)

No one is surprised when Donald Trump flouts a long-established norm. But Senate Republicans chose to help him: Even though Sen. Baldwin opposed Brennan and asked Grassley in person and in writing to honor her objection, Grassley went ahead anyway and held a committee hearing and vote, with Republicans all in support.

And now Sen. McConnell has scheduled a vote on Brennan. (Technically, it’s a vote on whether to have a confirmation vote, which if successful will lead to the actual confirmation vote.) The Republican leader has signaled that he will push any Trump nominee through regardless of the resultant loss of each individual senator’s authority, and regardless of the impact on the Senate as a whole.

Republicans who vote for Brennan will be voting to eliminate a major check on untrammeled power and a major prerogative of each senator. Members of the Senate don’t usually volunteer to surrender an enormous portion of their personal authority. If they do, it will show that they are willing to do whatever it takes to put our nation’s judiciary in the hands of President Trump’s narrow-minded elitist judges, extremists hand-picked by the Federalist Society for their far-right ideology.

If Brennan is confirmed, the future is easy to map. One impact will be in Pennsylvania. The president has already nominated Pittsburgh lawyer (and local Federalist Society leader) David Porter to the Third Circuit, with home state Sen. Bob Casey immediately voicing his objection. A Brennan confirmation would embolden Republicans to simply ignore Casey as they have ignored Franken and Baldwin.

Another nomination to monitor is that of Ryan Bounds for the Ninth Circuit. As with Brennan, Trump nominated Bounds in complete disregard of the commission process established by the home state senators, Oregon’s Ron Wyden and Jeff Merkley. Only after the nomination did Bounds go through the commission process, in which he failed to disclose a number of racially and otherwise charged newspaper columns he had written, and which the home state senators have cited in opposing him. So far, he has not had a hearing, but a Brennan confirmation could prompt Grassley to schedule one. If he does, it would be yet another ratcheting up of Republican aggression, since Bounds is opposed by both home state senators.

On the other hand, should even one or two GOP senators refuse to follow their leader down this road, Brennan might not be confirmed. As noted above, unilaterally changing the rules based solely on who it benefits violates the rule of law and poisons a democracy. Our courts should not be filled with lifetime appointments made possible only by such maneuverings. Stopping Brennan would be an encouraging development in this era when the norms of our democracy are being challenged on so many fronts.