Milwaukee lawyer Michael Brennan told the Senate Judiciary Committee on Wednesday that he would follow U.S. Supreme Court precedent — including the Roe v. Wade decision that legalized abortion — if confirmed as a federal appeals judge.
Brennan, an adviser to Gov. Scott Walker and a former Milwaukee County Circuit judge, is President Donald Trump's pick to fill a long-vacant position on the 7th U.S. Circuit Court of Appeals based in Chicago. He spent more than hour fielding questions Wednesday morning.
"I think he did very well," said Carl Tobias, a University of Richmond law professor who closely studies federal judicial appointments. "He was very articulate and engaged in a way other nominees haven't."
Democratic senators on the panel prefaced their remarks by roundly condemning a decision by Chairman Chuck Grassley (R-Iowa) to hold a hearing for Brennan even though Tammy Baldwin, Wisconsin's Democratic U.S. senator, declined to return her blue slip.
A century-old Senate tradition allowed senators from a judicial nominee's home state to return the slip to the committee with either positive or negative remarks or to withhold the slip. Withholding usually would prevent a nominee from getting a hearing.
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Sen. Diane Feinstein (D-Calif.) said no Democratic chair has ever held a hearing when a Republican senator withheld a blue slip.
"What's sauce for the goose is sauce for the gander," she told Grassley.
Tobias took Wednesday's hearing as a sign Grassley is prepared to "blow up" the blue slip tradition, at least as to federal circuit judges.
"The distinction doesn’t hold water," he said. "There's no reason to take a different approach for circuit courts, except to get your idealogues on the courts. Trump's made no bones about it," referring to the president's declaration that he would appoint judges who favor conservative views.
But at the hearing, Brennan said precedent, known in the law as stare decisis, is the "North Star" of the judiciary. He defended positions he's taken in articles suggesting judges need only follow "correct" precedent by saying he was referring to precedent from other circuits, and that a clear Supreme Court decision must always be followed, even Roe, a decision conservatives have been trying to overturn for decades.
"It's fully settled law. I would faithfully apply it," he said in response to a question from Feinstein. He also said he believes enemy combatants held in the United States have the right to challenge their detention in the courts, through the writ of habeas corpus.
Tobias said he expects the committee to vote along party lines in a few weeks to send Brennan's nomination to the full Senate, where he also expects approval.
Besides defending and explaining articles that raised some concerns with Democratic senators, Brennan also got to discuss his impressive résumé: law clerk at the 7th Circuit, assistant prosecutor, staff attorney to Wisconsin's sentencing reform committee, circuit judge, private practice lawyer and mediator.
Brennan generated the strongest reaction from Sen. Cory Booker (D-N.J.) when he wouldn't agree with Booker that racial bias infects the criminal justice system, citing judicial canons and the fact he hadn't read all the research Booker cited.
"I find that astonishing," Booker said.
There were also discussions about the meaning of "originalism" in the constitutional interpretation, the role of a judge's moral values and the weight a criminal defendant's background and upbringing should carry at sentencing.
Sen. Ron Johnson (R-Wis.) introduced Brennan to the committee as someone supported by both prosecutors and defense attorneys and dozens of Wisconsin judges. Brennan earned a unanimous "well qualified" rating from the American Bar Association judicial review committee. More than a dozen former presidents of the Wisconsin State Bar, both Republicans and Democrats, signed a letter supporting the nomination as well.
"He's not an idealogue," Johnson said. "He's never worn his politics on his sleeve."