The United States Senate Committee on the Judiciary has scheduled a confirmation hearing for Judge Michael Brennan, one of President Trump’s nominees to the U.S. Court of Appeals for the Seventh Circuit.
Before discussing Judge Brennan’s nomination, here is a quick history of the judicial vacancy for which he is nominated. All the way back in 2010, then President Obama nominated Victoria Nourse to fill the vacancy, which was created by a judicial retirement. The Senate did not convene hearings on Nourse before the end of 111th Congress, and President Obama re-nominated her again in 2011. However, Senator Ron Johnson had replaced Russ Feingold in the Senate, and Sen. Johnson refused to turn in his “blue slip” on Nourse, which effectively held up her nomination despite Nourse’s extensive vetting and approval by the bipartisan Wisconsin Federal Nominating Commission.
Nourse’s nomination was eventually withdrawn due to Sen. Johnson’s opposition. After lengthy negotiations between Sen. Johnson and Sen. Tammy Baldwin to reach an agreement regarding the process by which future federal judicial nominations from Wisconsin would be handled, the bipartisan nominating commission unanimously recommended Donald Schott for the vacancy, who was then nominated by President Obama in January of 2016. The U.S. Senate never held a floor vote on Schott’s nomination.
This process brings us where we are today with the Trump Administration’s decision to nominate Judge Brennan to what is now the longest federal appeals court vacancy in the country. Despite their previous zeal to obstruct and delay President Obama’s two nominees to the position, it appears that many of Judge Brennan’s supporters no longer think such a rigorous and lengthy nomination process is necessary. In fact, the Trump Administration did not even consult with Sen. Baldwin regarding the Brennan nomination and Judge Brennan did not receive the requisite five votes from the nominating commission that Senators Baldwin and Johnson had agreed were necessary for a judicial nomination to move forward (Brennan received four votes).
Perhaps more importantly than this flawed nomination process, Judge Brennan has also expressed viewpoints that are troubling from the standpoint of women’s health and economic security. According to a report from the Alliance for Justice, Brennan has expressed dismissive attitudes regarding the very real challenges women continue to face in the workplace, many of which contribute to a gender wage gap that has improved very little since 2001.
Brennan shared some of his insights on the matter in an article he authored on “personal responsibility,” in which he cautioned readers to guard themselves against arguments that some individuals or groups of people are denied advancement by a “glass ceiling” or because the rules were “rigged” against them. Brennan hints that these concepts are more a rhetorical “sleight-of-hand” than a genuine problem grounded in gendered societal expectations of women, the lack of affordable child care, outright discrimination, and a whole host of other societal factors that an abundance of research has clearly demonstrated have a negative impact on the career advancement and earnings of women.
The Alliance for Justice report also mentions some other troubling viewpoints held by Judge Brennan, such as his applauding of a U.S. Supreme Court decision that struck down part of the Violence Against Women Act that provided a federal civil rights remedy to victims of gender-motivated violence.
Judge Brennan also played a prominent role in Governor Walker’s appointment of two Wisconsin Supreme Court justices, Rebecca Bradley and Daniel Kelly, both of whom have a record of troubling comments regarding a range of issues. Bradley’s comments regarding people living with HIV/AIDS, members of the LGBT community, the women’s rights movement, and violence against women earned her infamy after her appointment to the state Supreme Court in 2015. Kelly’s comments regarding affirmative action and same-sex marriage also drew substantial attention at the time of his appointment.
At a minimum, the process leading to Judge Brennan’s nomination, his record on issues that are important to women’s rights, and his judgement about who is fit to serve on Wisconsin’s highest court should give members of the Senate Judiciary Committee significant pause when determining whether to confirm his appointment.
Appointments to a federal court of appeals are for life and these judges are entrusted to make some of the most important decisions that shape our rights as citizens and the communities in which we live. With the stakes so high, it makes no sense to abandon the rigorous selection process that has served our state so well in the past. Sen. Johnson should join Sen. Baldwin and demand that a nominee be put forward who can gain the necessary support of the Wisconsin Nominating Commission before this vacancy is filled.
Sara Finger, Executive Director