Nov. 15, 2017 – Last week, Amy Barrett took an oath as the newest judge on the U.S. Court of Appeals for the Seventh Circuit – which hears cases from Wisconsin, Illinois, and Indiana – becoming the 56th judge appointed to that court, created in 1891.
Barrett, who clerked for U.S. Supreme Court Justice Antonin Scalia in the late 1990s and most recently served on the Notre Dame Law School faculty, was nominated by President Donald Trump in May and confirmed by the U.S. Senate on Oct. 31, 2017.
Barrett filled one of three seats traditionally designated for appointees from Indiana. But three seats on the 11-judge court are still vacant, including the ninth seat (Seat 9), created in 1978, one of two seats traditionally reserved for appointees from Wisconsin.
Former Wisconsin Supreme Court Justice Diane Sykes, appointed by President George W. Bush in 2004, holds the second Wisconsin seat on the court, based in Chicago.
Seat 9 has remained open since 2010, the year Judge Terrence Evans elected senior status (he died the following year). The longest running federal appeals court vacancy in the country, Seat 9 has seen three individuals nominated since 2010.
Most recently, President Trump nominated Michael B. Brennan for Seat 9. Brennan is an attorney with Gass Weber Mullins LLC and a former judge for the Milwaukee County Circuit Court. The nomination is pending before the Senate’s Judiciary Committee.
The two other vacancies are reserved for Illinois appointees. Judge Ann Claire Williams, appointed by President Bill Clinton in 1999, recently assumed senior status. Judge Richard Posner, appointed in 1981 by President Ronald Reagan, retired in September.
The Blue-slip Policy
Seat 9 has remained vacant for nearly eight years with two unsuccessful nominations thus far. Two of former President Barack Obama’s nominations, Victoria Nourse in 2010 and Donald Schott in 2016, did not reach the confirmation stage.
org jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.
Nourse, a former law professor at U.W. Law School, ultimately withdrew her name in 2012 after the nomination stalled for two years. Schott, a partner at Quarles & Brady LLP in Madison, saw his nomination expire in 2017 when President Trump took office.
The President appoints federal judges “with the Advice and Consent of the Senate.” An informal rule gives home-state senators a greater voice in the appointment process.
Even when one party controls Congress and the White House, as Republicans do now, a so-called “blue-slip” policy allows individual senators to nix or derail advancement of nominees from their home state, including senators from a minority party.
Under the blue-slip policy, “a Senator opposed to a judicial nominee from his or her state may – by declining to return a positive blue slip to the committee, or by returning a negative one – block the nominee from receiving a committee hearing or vote.”1
Thus, even senators in the minority party can wield great influence over judicial nominations from their home states, depending on how the blue-slip policy is applied.
For example, Sen. Al Franken (D-Minn.) did not return a positive blue slip for Minnesota Supreme Court Justice David Stras, President Trump’s pick to fill a vacancy on the U.S. Court of Appeals for the Eighth Circuit. The nomination may hinge on whether Senate Judiciary Committee Chair Chuck Grassley (R-Iowa) adheres to the blue-slip policy.
As one report notes, “[t]he blue slip is a manifestation of senatorial courtesy,” an “informal practice” unique to the Senate Judiciary Committee that was likely initiated in the 65th Congress under Senate Judiciary Committee Chair Charles Culbertson.2 Over the years, different committee chairs have applied the blue-slip policy differently.
Both Democrats and Republicans have invoked the blue-slip policy since its inception 100 years ago.3 Under President Obama, Republican senators reportedly blocked 17 judicial nominees, in part through the blue-slip rule, including six circuit court nominees.
Barrett, a Trump nominee, did not face a blue-slip obstacle because both U.S. senators from Indiana, one Republican and one Democrat, supported Barrett’s nomination.
The blue-slip policy is one wrinkle in the wrinkly process of filling vacancies on the 13 federal appellate courts. Currently, eight nominations are pending for 18 vacancies.
There are 119 vacancies in the U.S. district courts, with 36 nominations pending, including one on the U.S. District Court for the Eastern District of Wisconsin.
That seat has remained vacant since Feb. 5, 2016, when Judge Rudolph Randa took senior status. Judge Randa died seven months later.
Senators in Wisconsin and other states have established bipartisan federal nominating commissions that promote bipartisan agreement on federal judicial nominations, but such commissions don’t always produce nominees on which both sides agree.
The Wisconsin Federal Nominating Commission
By tradition, the President defers to the recommendations of the home state’s senators with respect to federal judicial nominees. Upon recommendation, the President makes nominations for consideration, first by the Senate Judiciary Committee. Nominees who pass the committee stage must be confirmed by the full U.S. Senate.
In 1979, the U.S. senators from Wisconsin, William Proxmire and Gaylord Nelson, established the Wisconsin Federal Nominating Commission to screen potential nominees for the senators’ consideration. Since then, senators have continued the commission through charters that define the commission’s scope and process.
Currently, the commission consists of six members of the State Bar of Wisconsin, three appointed by each senator. After an application process, the commission selects four to six individuals as best qualified, and those names are forwarded to the senators.
At least five of the six commission members must vote affirmatively to recommend a candidate to the senators, who are not bound to support a recommended candidate, but traditionally have done so since the process was established.
The commission’s votes are not publicly released unless the senators choose to release them. According to press reports, one senator has voiced opposition to Brennan’s nomination. Thus, Brennan’s future judicial fate may be tied to the blue-slip policy.
Senators Have Agreed Before
Although Seat 9 remains vacant, the current senators from Wisconsin, Sen. Tammy Baldwin (D) and Sen. Ron Johnson (R), have recently relied on the Wisconsin Federal Nominating Commission, which also makes recommendations to fill vacant U.S. attorney positions and vacancies on Wisconsin’s two U.S. district courts.
In 2014, the Senate confirmed President Barack Obama nominees James D. Peterson and Pamela Pepper to the U.S. district courts in Wisconsin. The senators jointly recommended Pepper (Eastern District) and Peterson (Western District), along with other candidates, through the Wisconsin Federal Nominating Commission process.
Last week, the Senate confirmed Scott Blader to serve as U.S. Attorney for the Western District of Wisconsin. President Trump nominated Blader, former district attorney for Waushara County, one of two candidates the senators jointly recommended.
Last month, President Trump nominated Matthew Krueger to serve as U.S. Attorney for the Eastern District of Wisconsin (pending). Krueger was one of three names that both Sen. Johnson and Sen. Baldwin recommended through the commission.
In August, the senators jointly recommended four candidates to replace Judge Randa on the U.S. District Court for the Eastern District of Wisconsin in Milwaukee: Michael Aprahamian, Gordon Giampietro, Kevin Martens, and Richard Sankovitz. President Trump, to date, has not nominated a candidate for this seat.
1 The Appointment Process for U.S. Circuit and District Court Nominations: An Overview, Congressional Research Service (June 17, 2016).
2 The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present, Congressional Research Service (Oct. 22, 2003).