Michael B. Brennan was nominated to fill the vacancy on the U.S. Court of Appeals for the Seventh Circuit. The Senate Judiciary Committee held a hearing on his nomination today.
Jan. 24, 2018 – Members of the U.S. Senate Judiciary Committee today probed Milwaukee attorney Michael B. Brennan, who was nominated by President Donald Trump to fill an open seat on the U.S. Court of Appeals for the Seventh Circuit.
Pres. Trump nominated Brennan – currently a partner at Gas Weber Mullins LLC who served as a Milwaukee County Circuit Court judge for nine years – last August to fill one of two seats reserved for Wisconsin appointees. The seat has been vacant since 2010.
U.S. Senator Ron Johnson introduced Brennan to the Judiciary Committee, chaired by Sen. Chuck Grassley (R-Iowa), noting his high qualifications and superior reputation.
“Anyone who spends time with Mike will be struck, not only by his intellect, but by his humility and strong commitment to justice and the rule of law,” Sen. Johnson said.
“This explains why the attorney general of Wisconsin and the state’s public defender, fierce opponents in the courtroom, were able to come together enthusiastically supporting his nomination,” Johnson continued, noting numerous letters of support from Wisconsin’s legal community, including letters from past presidents of the State Bar.
Sen. Tammy Baldwin, of Wisconsin, did not appear. Several members of the committee noted that Baldwin did not approve Brennan’s nomination through what’s called the blue-slip policy, and objected to Sen. Grassley’s decision to hold the hearing.
But the hearing pressed on. Brennan, a 1989 graduate of Northwestern University School of Law, fielded numerous questions on his qualifications, his experience and judicial philosophy, and his stance on specific issues, such as stare decisis.
For instance, Sen. Grassley asked what a federal judge should do when confronted with a federal statute that the judge believes is unfair or creates bad policy.
“Stare decisis and precedent would be extremely important,” Brennan said. “It’s the North Star for any judge.” He said judges have a self-abnegating role, and should not insert their own preferences or thoughts about a federal statute.
He also explained the difference between vertical and horizontal precedent. The latter provides room to depart from bad law, he said, or reconsider prior decisions on rare occasions. Other members of the Judiciary Committee asked him to be more specific.
Sen. Dianne Feinstein (D-California), ranking member of the committee, asked about stare decisis with respect to Rowe v. Wade, the U.S. Supreme Court’s landmark decision protecting a woman’s right to an abortion as a right to privacy.
According to vertical precedent, Brennan said that decision is settled. “I would faithfully apply it as a judge,” he noted. Feinstein also pressed him with regard to whether American citizens felt enemy combatants should be afforded the habeas corpus protections.
Brennan said he would apply Hamdi v. Rumsfeld, a 2004 case in which a plurality ruled that the Due Process Clause allowed an “enemy combatant” to contest his detention.
Other members asked Brennan to explain past writings or comments. Sen. John Kennedy (R-Louisiana) asked how Brennan would proceed in deciding a case on a constitutional provision if there were no precedent. “I would first look to the text and the structure, and then I would look to the constitutional history,” Brennan said.
Brennan also fielded questions about sentencing, mass incarceration, and the role of drug treatment courts amidst the opioid epidemic in America. Brennan displayed knowledge on all topics, noting experiences as a judge and prosecutor in Milwaukee.
Sen. Ted Cruz (R-Texas) asked what qualities make a good federal judge. “I think there’s three. The first is neutrality,” said Brennan. “A judge has to approach the cases and controversies in front of them with an open mind. The second is independence.”
He said the judge must respect the separation of powers and engage in self-abnegation, taking his or her own personal preferences out of the calculation.
“Another aspect of that independence is ruling against your appointing authority,” said Brennan. He said judges must sometimes make unpopular decisions.
“The third, and I think most important, is humility,” Brennan said. “The individual has to be sanguine to the truth of that law and discern it and apply it.” Brennan said he clerked for two judges, Robert Warren and Daniel Manion, who displayed humility in practice.
If the 21-member Judiciary Committee votes to approve Brennan (it did not vote today), Brennan will move to a confirmation vote in the full Senate. Brennan’s hearing before the Judiciary Committee is available on the committee’s webpage.