The Senate Judiciary Committee today voted to approve Michael B. Brennan to fill a judicial vacancy on the U.S. Court of Appeals for the Seventh Circuit. Brennan's nomination will likely be confirmed by a simple majority vote in the Senate.
Feb. 15, 2018 – The U.S. Senate’s Judiciary Committee today voted 11-10 on party lines to approve Milwaukee attorney and former circuit court judge Michael B. Brennan to fill a longstanding vacancy on the U.S. Court of Appeals for the Seventh Circuit.
Brennan, currently a trial and appellate lawyer at Gas Weber Mullins LLC in Milwaukee, was nominated to the federal bench by President Donald Trump last year.
A former prosecutor and Milwaukee County Circuit Court judge (2000-2008), Brennan sat for a Judiciary Committee hearing last month. Now the committee will send Brennan’s nomination to the Senate. His confirmation requires a simple majority vote.
Upon confirmation, Brennan will fill one of the two seats traditionally reserved for appointees from Wisconsin. Seat Nine, created in 1978, has remained vacant since 2010, the year Judge Terrance Evans elected senior status (he died the following year).
Seat Nine is the longest running federal appeals court vacancy in the country. Two of former President Barack Obama’s nominations in 2010 and 2012 failed to advance.
Brennan’s appointment would bring the Seventh Circuit Court of Appeals, which covers Wisconsin, Illinois, and Indiana, closer to full strength. The 11-judge court currently has three vacancies, and has relied on the help of senior status and district judges.
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 email or by phone at (608) 250-6161.
Although Brennan had bipartisan support among Wisconsin’s legal community and received a “well qualified” rating from the American Bar Association, his nomination was at the center of controversy between Democrats and Republicans on the committee.
Brennan’s nomination advanced to a committee hearing and vote despite the absence of a positive “blue slip” from U.S. Sen. Tammy Baldwin (D-Wisconsin).
For the past 100 years, the so-called blue slip policy has generally allowed individual senators to nix or derail advancement of nominees from their home state, including senators from a minority party. But Judicial Committee Chair Chuck Grassley (R-Iowa) chose not to adhere to the blue slip policy, allowing Brennan’s nomination to advance.
At Brennan’s hearing and again today, Democratic senators took time to comment on Grassley’s decision, including former Senate Judiciary Committee Chair Patrick Leahy (D-Vermont), who adhered to the policy during the last Congress.
“This basically says, ‘we don’t care what state you represent. You are irrelevant as senators. We will forget the 100 hundred years of senators having some involvement,” Leahy said of the blue slip. “Senator Baldwin is right to be concerned about this.”
Sen. Sheldon Whitehouse (D-Rhode Island) said the committee, with the vote on Brennan, has “killed” the 100-year blue slip policy for circuit court nominees.
“I also think we have shot a torpedo into the very often bipartisan selection committee process that a great many senators have agreed to in their home states,” said Whitehouse, referring to what is the Federal Nominating Commission in Wisconsin.
Sen. Ben Sasse (R-Nebraska) countered. “Senator Whitehouse makes great points but I think we should just acknowledge this is the inevitable result of the Reid rule in 2013. When you went to simple majority confirmation of circuit judges, this was inevitable.”
Sen. Sasse was referring to a rule change that Democrats implemented in 2013 under then-Senate Majority Leader Harry Reid (D-Nevada). It allowed judicial nominations of federal circuit judges to be confirmed by a simple majority vote in the Senate.
Senators discussed the blue slip policy but did not generally question Brennan’s qualifications to be the next judge on the Seventh Circuit Court of Appeals.