Executive Calendar
Floor Speech
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Mr. JOHNSON. Mr. President, I rise today to encourage all my Senate colleagues to vote to confirm Michael Brennan as a judge on the U.S. Court of Appeals for the Seventh Circuit. Michael Brennan has an exemplary resume, including degrees from the University of Notre Dame and Northwestern University School of Law, two Federal clerkships, work as a prosecutor, and almost a decade on the State trial court bench before returning to private practice. His accomplishments in practice are noteworthy, but I would like to focus my remarks today on Mike's commitment to public service and his reputation as a jurist.
Becoming a Seventh Circuit judge will not be a huge adjustment for Mike because he has already spent 9 years as a judge. 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. This explains why the attorney general of Wisconsin and the State's public defender--fierce adversaries in the courtroom--were able to come together to write a letter enthusiastically supporting his nomination. I have a sense those two don't often agree, but when it comes to who they want deciding their cases, they both point to Mike.
By the way, that is just one of many letters that influential members of the legal community in Wisconsin have written in support of Mike's nomination. Included in the outpouring of support are letters from 2 former Federal defenders, 5 former U.S. attorneys, more than 40 judges, and 15 former presidents of the State Bar of Wisconsin, Democrats and Republicans--all joining together to support Michael Brennan's confirmation.
One letter, signed by over two dozen Wisconsin judges from across the political spectrum, sheds light on the kind of judge Mike has been and will continue to be. It states:
To the litigants who appeared before him, Judge Brennan was a wonderfully kind and patient judge with a humble demeanor.
Another letter attests that those same qualities have now made Judge Brennan one of the most sought-after mediators and arbitrators in Wisconsin. I am sure the litigants in the Seventh Circuit will have the same experience and reaction to his hearing their cases.
In this climate that has hyperpoliticized the judiciary, I want to bring my colleagues' attention to one very important paragraph in the letter supporting Mike that was signed by Wisconsin judges. It reads:
Finally and significantly, Mike is not an ideologue, and he has never worn his politics on his sleeve. You could ask any number of lawyers who appeared before him, or his colleagues who worked alongside of him, and they will confirm that Judge Mike Brennan never let his personal, religious, or political views influence his legal decision in any case. He is brilliant, experienced, hard working, and fair-minded. Rest assured, they don't come any better than Mike Brennan.
I agree with that assessment. We all know that type of bipartisan praise isn't given; it is earned. In Mike's case, his longstanding dedication to law and public service, coupled with his ability and temperament, has won him the support of many Democrats and Republicans in Wisconsin, and it has earned him the rating of unanimously ``well qualified'' by the American Bar Association. Let me cite a few statistics to prove the ABA rating is well deserved.
In Wisconsin, a party can ask for a different judge, and they can make this request for any reason. Of the 9,000 cases Mike heard as a judge, fewer than one-tenth of 1 percent--let me repeat that--fewer than one-tenth of 1 percent of the litigants decided to go with another judge. That is an extremely telling statistic about his even-keeled temperament, his neutrality, and his legal skills.
Judge Brennan's low reversal rate also demonstrates his commitment to following the law and his dedication to performing his job with excellence. In 2005, out of 240 trial judges, Brennan was the most affirmed judge in the entire State of Wisconsin. He was No. 1 out of 240. Of the 9,000 cases Mike heard as a judge, he was reversed in only a handful of cases--fewer than 20--and in some of those, the Wisconsin Supreme Court ended up reversing the court of appeals and reinstating Brennan's original decision.
As final proof of the strong bipartisan support Michael Brennan enjoys within Wisconsin's legal community, let me provide more extensive quotes from a letter of support my office received from former Milwaukee County district attorney E. Michael McCann. Mr. McCann is a lifelong Democrat who served as the elected district attorney of Milwaukee County for 37 years. He is recognized as one of the most distinguished and accomplished district attorneys in the entire country. This is what Mr. McCann had to say about Mike Brennan on first working with Mike Brennan:
Key personnel in our office and I, in short order, became impressed with Mr. Brennan's high energy, his mastery of the law, his integrity, and his good judgment. As an assistant district attorney, he was assigned to some very challenging cases. Mr. Brennan continued to exhibit those qualities of scholarship, integrity, and judgment which had initially earned him our respect.
On Brennan's work as counsel for Wisconsin's truth-in-sentencing committee, Mr. McCann said:
Mr. Brennan provided splendid research and appropriate materials to the committee and with his gracious manner moved the committee through its very substantial workload so felicitously that the contentious disputes I and others had expected simply did not occur.
On Brennan as a judge, McCann--whose office had lawyers before Judge Brennan every day--said:
He was an excellent judge in all regards. He was properly respectful of lawyers, witnesses, victims and of the rights of defendants. His courtroom was a model of judicial decorum. In jury trials and trials to the court and in the hearing of motions, he was thoughtful, patient, knowledgeable, and scholarly. He had mastery of the law and was cognizant of the problems in the justice system. He was fair, unbiased, devoid of prejudices and committed to justice. The comparatively very few motions for change of judge filed in his court quietly speaks eloquently of the perceptions of lawyers and litigants that they were receiving justice from him.
Mr. McCann finished his letter by saying:
I urge you to confirm this nomination. Michael Brennan is an honorable man of immense integrity, ideally qualified by fine intellect, even disposition, extensive judicial experience, a strong work ethic, sound judgment, good character and a firm commitment to justice. He will be an excellent appellate judge.
This strong endorsement is not from a Republican; it is from a lifelong Democrat who is one of the two longest serving district attorneys in any major city in America.
Based on this record, based on those endorsements, I am hopeful that when my Senate colleagues fully study his background and see the same virtues that garnered such ringing endorsements, their review will produce a strong bipartisan vote to confirm Michael Brennan to serve as judge on the U.S. Court of Appeals for the Seventh Circuit.
Mr. President, that concludes my prepared remarks about what a quality judge and jurist Judge Brennan would be, but I just have to say that I am very disappointed at the partisan nature of the cloture vote. It was unfortunate that it was completely party line for somebody who, as I have described, has bipartisan support within the Wisconsin legal community.
The Judiciary Committee majority issued an excellent memorandum dated November 2, 2017. I would like to discuss and address the primary objection that led to that unfortunate party-line vote on cloture. I am really hoping our colleagues on the other side of the aisle will take this to heart and take the background--the bipartisan support from the Wisconsin legal community--when they cast their final vote on confirmation.
Since the blue slip courtesy was created in 1917, only two chairmen (Sens. James Eastland and Patrick Leahy) had strict policies requiring two positive blue slips from home-state senators before the Judiciary Committee would consider a nomination.
In 25 of the 36 years before Senator Grassley became Chairman, chairmen have allowed hearings on nominees despite negative or unreturned blue slips.
The same senators who changed the Senate rules to ignore the views of 41 senators after evaluating a nominee now want to enable a single senator to block a nomination before the Committee can even review the nominee's background and qualifications. History of Blue Slip Courtesy
The blue slip represents an aspect of senatorial courtesy premised on an understanding that home-state senators are in a good position to provide insights into a nominee from their home state. Throughout its 100-year history, Senate Judiciary Committee chairmen have applied the courtesy differently. However, a vast majority of chairmen have not required two positive blue slips as a prerequisite for further consideration by the Committee.
Only two Chairmen--Senators James Eastland and Patrick Leahy--strictly required positive blue slips from both home- state senators before proceeding on a nomination. Senators Edward Kennedy, Strom Thurmond, Joseph Biden, and Orrin Hatch adopted policies that were more consistent with pre-Eastland policies, in which the lack of two positive blue slips did not necessarily prevent action on a nomination. (Senator Arlen Specter did not announce a blue slip policy during his two-year tenure as Chairman.) But Senators Biden and Hatch also emphasized the need for the White House to have engaged in consultation with home-state senators before they would allow a nomination to proceed without two positive blue slips. 1917-1956--All 11 Chairmen--Committee could consider nominees with a negative or unreturned blue slip
The blue slip was instituted during the 65th Congress by the Chairman of the Senate Judiciary Committee to obtain the opinions of senators on the nominees to federal courts located in their home states. The policy of all 11 chairmen for the next nearly forty years was that the return of a negative blue slip did not preclude the Committee's further consideration of a nominee. For example, in 1917, Senator Thomas Hardwick of Georgia returned a negative blue slip on a nominee for the Southern District of Georgia. The Committee nevertheless reported the nominee negatively to the Senate, where the nominee was rejected. 1956-1978--Chairman James O. Eastland--Allowed a negative or unreturned blue slip to block a nominee
Chairman James O. Eastland changed the Committee's blue slip policy so that a negative blue slip or the failure to return a blue slip by one home-state senator was considered an absolute veto of a nomination.
It is not precisely clear why Chairman Eastland adopted this policy. But some scholars maintain that its purpose was to empower federal courts in the South to resist implementation of Brown v. Board of Education. Villanova Law Professor Tuan Samahon explains, ``[w]hen segregationist `Dixiecrat' Senator John Eastland chaired the Judiciary Committee, he endowed the blue slip with veto power to, among other things, keep Mississippi's federal judicial bench free of sympathizers with Brown v. Board of Education.'' Because the Supreme Court ``largely delegated the task of implementing Brown to local federal trial judges . . . it mattered a great deal who sat on federal district courts in the segregated South.'' 1979-1981--Chairman Edward M. Kennedy--Committee could consider nominees with a negative or unreturned blue slip
The blue slip policy was again revised under Chairman Edward M. Kennedy. During a Committee hearing in 1979, he stated:
If the blue slip is not returned within a reasonable time, rather than letting the nomination die I will place before the committee a motion to determine whether it wishes to proceed to a hearing on the nomination notwithstanding the absence of the blue slip.
Chairman Kennedy did not articulate an express policy with respect to negative blue slips, but there is at least one example of the Committee moving on a nominee despite the return of a negative blue slip. Senator Harry F. Byrd, Jr. returned a negative blue slip for a Virginia judicial nominee, but Senator Kennedy nevertheless held a hearing. Chairman Thurmond proceeded on several nominees when senators returned negative blue slips.
In 1981, the Committee held a hearing and moved John Shabaz to the Senate despite a negative blue slip from Senator William Proxmire of Wisconsin. Shabaz was confirmed to a district court seat.
In 1982, the Committee held a hearing and moved John L. Coffey to the Senate despite a negative blue slip from Senator Proxmire. Coffey was confirmed to the Seventh Circuit.
In 1983, the Committee held a hearing and reported the nomination of John P. Vukasin, Jr. despite California Senator Alan Cranston returning a negative blue slip. The Senate ultimately confirmed Vukasin to a district court seat.
In 1985, the Committee held a hearing on the nomination of Albert I. Moon, Jr. despite both Hawaii senators returning negative blue slips.
1987-1995--Chairman Joseph R. Biden, Jr.--Committee could consider nominees with a negative or unreturned blue slip
Chairman Biden articulated his blue slip policy in a letter to President George H.W. Bush shortly after his inauguration:
The return of a negative blue slip will be a significant factor to be weighed by the committee in its evaluation of a judicial nominee, but it will not preclude consideration of that nominee unless the Administration has not consulted with both home state Senators prior to submitting the nomination to the Senate.
Chairman Biden proceeded on the nomination of Bernard Siegan to the Ninth Circuit despite Senator Cranston's return of a negative blue slip. The Committee rejected Siegan's nomination by an 8-6 vote. Likewise, Chairman Biden proceeded on the nomination of Vaughn R. Walker despite Senator Cranston's return of a negative blue slip. Although Chairman Biden said that Cranston's opposition would ``affect Walker negatively,'' the Committee held a hearing and reported Walker to the Senate, where he was confirmed. 1995-June 5, 2001--Chairman Orrin Hatch--Committee could consider nominees with a negative or unreturned blue slip
At the start of his chairmanship in 1995, Senator Hatch sent a letter to White House Counsel Abner Mikva stating that he would follow the policy articulated by Chairman Biden in 1989 that did not preclude review of nominees with negative blue slips unless the Administration did not consult with home-state senators. In 1997, Chairman Hatch sent another letter to the White House that reaffirmed this policy and articulated in more detail what meaningful consultation should look like. June 5, 2001-2003--Chairman Patrick Leahy--Allowed a negative or unreturned blue slip to block a nominee
Senator Patrick Leahy became Chairman in June of 2001 after Democrats took control of the chamber. He sent a letter to White House Counsel Alberto Gonzalez essentially endorsing Chairman Hatch's 1997 blue slip policy statement. But Chairman Leahy made statements to the press indicating he would move forward only when he received two positive blue slips from home-state senators. During the 107th Congress, seven nominees (five circuit court and two district court nominees) did not receive hearings because of blue slip issues. In fact, Chairman Leahy went even further and stopped Committee action with respect to two Sixth Circuit nominees for seats in Ohio because the Democratic senators from Michigan objected. 2003-2005--Chairman Orrin Hatch--Committee could consider nominees with a negative or unreturned blue slip
The Republicans again took control of the Senate after the 2002 elections, and Senator Hatch again became Chairman of the Judiciary Committee. Chairman Hatch reiterated that ``a single negative blue slip from a nominee's home state won't be enough to block a confirmation hearing.'' He said he would give ``great weight to negative blue slips'' but would not allow senators to hold up ``circuit nominees.''
Chairman Hatch held hearings and votes on five of the six circuit court nominees who had blue slip issues. For example, Chairman Hatch held a confirmation hearing for Sixth Circuit nominee Henry W. Saad despite negative blue slips from Michigan Senators Levin and Stabenow. The Committee voted to send Saad to the Senate floor, where the Democrats successfully filibustered him as well as each of the other nominees. At the same time, Chairman Hatch did not move on any district court nominees with blue slip issues. 2005-2007--Chairman Arlen Specter--Unclear whether a specific blue slip policy was established
Senator Hatch stepped down as Chairman of the Judiciary Committee at the beginning of the 109th Congress due to term limits. Senator Arlen Specter became Chairman. It is not clear what Chairman Specter's policy was with respect to blue slips or if he even had a stated policy. At least one reputable secondary source indicates that, under Chairman Specter, a ``[n]egative blue slip killed a nomination for district court judges, but not necessarily for circuit court judges.''
2007-2015--Chairman Patrick Leahy--Allowed a negative or unreturned blue slip to block a nominee
Senator Leahy again became Chairman of the Senate Judiciary Committee in 2007. He announced that he was reinstituting his policy that he would proceed on a nominee only when both home-state senators returned positive blue slips. During the 110th Congress, Chairman Leahy did not proceed on sixteen of President Bush's nominees (six circuit court and ten district court nominees) who did not have the support of both home- state senators.
Chairman Leahy continued this policy throughout his chairmanship. In 2011, he explained that his blue slip policy was meant to encourage consultation between the White House and home-state senators. But he also warned that he expected senators not to abuse the policy to delay filling vacancies. When the Republicans were in the minority from 2009-2014, Republican senators returned blue slips for 25 circuit court nominees, withheld a blue slip for one nominee (for lack of consultation), and rescinded positive blue slips for one nominee after his hearing (this seat was ultimately filled by another nominee of President Obama). (By contrast, Democratic senators have withheld blue slips for three circuit court nominees in the first ten months of the Trump Administration.) The Republicans' restrained use of the blue slip to block nominees meant that there was no need for Chairman Leahy to deviate from his strict blue slip policy. It is unclear what Chairman Leahy would have done had the Republicans abused the blue slip process for President Obama's Judicial nominees under Leahy's chairmanship. Blue Slips and the End of the Filibuster
Since 1949, the Senate rules required a supermajority of the Senate to end debate for lower court nominations. This longstanding rule was the primary tool for senators in the minority party opposite the president to block nominees. Under this rule, senators who intended to oppose a nominee could return a positive blue slip in Committee and then filibuster the nominee on the Senate floor. For example, during the Bush Administration, Senator Feinstein returned a blue slip for Carolyn Kuhl, who was later reported out of the Committee. Feinstein and other Democrats then filibustered Kuhl's nomination on the Senate floor, preventing confirmation. In instances in which the Committee reported nominees with negative or unreturned blue slips, those nominees could still be filibustered by the full Senate. For example, in 2003-2004, the Democratic caucus, which was in the minority at the time, filibustered several of George W. Bush's nominees for federal court seats in Michigan for whom Senators Levin and Stabenow had returned negative blue slips. This practice helps explain why few nominees with blue slip issues have been confirmed by the full Senate.
However, in 2013, Senate Democrats, then in the majority, unilaterally abolished the rule, ending the ability of a minority of senators to block confirmation of a lower court nominee. The Democrats argued that a minority of senators should not be empowered to block nominees who earned majority support after the committee has reviewed a nominee's background and qualifications. One of the leading proponents of abolishing the filibuster, Senator Jeff Merkley of Oregon, defended the move by saying.
``Advice and consent'' was never envisioned as a check that involved a minority of the Senate being able to block a presidential [nomination].
A blue slip policy allowing a single senator to block a nominee from even receiving Committee consideration is a more extreme example of a counter-majoritarian practice.
By eliminating the filibuster rule, the Democrats removed a tool for the minority to block nominees with negative or unreturned blue slips after the committee has evaluated nominees' qualifications. They are now, because of their own actions, in the position of having to rely on an ahistorical interpretation of the blue slip courtesy at the Committee level to attempt to defeat nominees they oppose on ideological or political grounds before the full Committee reviews a nominee.
Mitchel A. Sollenberger, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present, Congressional Research Service 8 (Oct. 22, 2003).
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Mr. JOHNSON. Mr. President, rather than read this excellent memorandum, which I would encourage my colleagues to do, let me give a brief history, a little summary of what that memorandum states on the history of the blue slip.
The blue-slip courtesy was created in 1917, so it has basically been around for 101 years. Only 2 of 18 Judiciary Committee chairmen have allowed the blue slip to become an absolute veto blocking consideration and confirmation of judges. Those two chairmen were James Eastland between 1956 and 1978--so that was for a 22-year period--and then Senator Patrick Leahy for about 10 years. So of the 101 years that the blue-slip courtesy has been around, for only 32 of those years has the blue slip been used as an absolute veto by any Senator.
Looking further at the history--and I think it is relevant to a confirmation for Wisconsin's seat on the Seventh Circuit--in 1981, Wisconsin Senator William Proxmire returned a negative blue slip on Judge John Shabaz, a nominee to be a district judge. The Senate took that negative blue slip into consideration, but the committee still held a hearing, and the Senate voted to confirm the judge as a district judge. The next year, 1982, Senator Proxmire again returned a negative blue slip on a circuit judge nominee, Judge John Coffey. Once again, the committee took that blue slip into consideration but still held a hearing, and the Senate confirmed Judge Coffey later that year.
It is apparent that a blue slip--historically and by precedent for two-thirds of the 101 years in which the blue slip has been around--has not been used as an absolute veto by one single Senator but basically as advice, a particular Senator's view on a judge. I would suggest that is exactly the way the blue slip should be handled in the future, particularly in light of Senator Harry Reid, the majority leader in 2013, who employed the nuclear option and changed the Senate forever. He changed the rules of the Senate as they relate to confirming nominations with a mere majority. That, in effect, eviscerated the blue slip's possibility of being used as a veto because then there was no way a minority could block or actually support and confirm that blue slip. Harry Reid's precedent of changing the rules of the Senate with just 51 votes--changing the rules so that only a majority vote would confirm a judge--has pretty well rendered the blue slip moot from the standpoint of being able to block a judge.
The blue slip, from my standpoint, should be used primarily as the advice and consent of one Senator expressing opinion on a judge from their State. That is just a general description of the history of the blue slip.
I would like to address specifically the comments made around this particular circuit court vacancy and my role in it because I think there has been a lot of distortion. Let me correct the record. It is true that this circuit court vacancy is the longest in history. It has dragged on for a variety of reasons, but let me give you the history.
On January 17, 2010, Judge Terence Evans retired from the Seventh Circuit. President Obama was in office, and Wisconsin had two Democratic Senators, Senator Kohl and Senator Feingold. Five days later, on January 22, those two Senators, Kohl and Feingold, recommended four candidates to President Obama.
On July 14, 2010, President Obama nominated Victoria Nourse for that Seventh Circuit slot. Ms. Nourse was not really a member of the Wisconsin legal community. She was an adjunct professor temporarily in Wisconsin. There was some tie there, but basically she had no other ties to Wisconsin. She was actually a former staffer and would become a future staffer of Vice President Biden.
On November 2, 2010, Wisconsin held an election for the Senate. To Senator Feingold's surprise, he was retired; I replaced him. There was no action taken from the date of July 14, when President Obama had nominated Victoria Nourse. In a Senate with a majority of Democrats and a Democratic President, there was no action taken prior to Congress expiring--the 111th Congress. So that nomination expired.
On January 3, 2011, the 112th Congress was sworn in. Within a few days, I received two blue slips on judicial nominations--one for a district judge and Victoria Nourse's nomination for the Seventh Circuit judgeship. I had just been elected. More than a million Wisconsinites voted for me. I had no role whatsoever in the nomination of this judge. So I decided not to return the blue slip.
This was during a time period when Chairman Leahy was using the blue slip as an absolute veto. It was still the precedent in the Senate that it would require 60 votes to confirm any judge. Any minority member of the Senate who objected to a judicial nomination would be backed up by his party, and the nomination could be thwarted.
I continued to work with Senator Kohl, trying to become involved in the nomination of someone who I felt would be more appropriate for that seat--someone who actually had a connection to the Wisconsin community. Unfortunately, Senator Kohl did not have a great deal of interest in working with me, so the entire 112th Congress passed, and the seat remained vacant.
Let me remind you that through the entire year of 2010, the Seventh Circuit seat from Wisconsin was vacant when we had two Democratic Senators and President Obama. They could have nominated and confirmed someone any time during 2010. I was given no input into this nomination. The only thing I could really do was withhold the blue slip and work with Wisconsin's Democratic Senator to come up with a nominee who would be a good consensus choice.
Senator Kohl decided not to run for reelection. Senator Tammy Baldwin was elected in November 2012 and began her term in 2013. Because I felt it was so important that the judicial nominations be made and that we have a process to work on a bipartisan basis, I recommended a commission--a compact with Senator Baldwin, which she agreed to. I would have three commissioners, and she would have three commissioners of people tied to the Wisconsin legal community--people dedicated to filling those judicial vacancies. The beauty of it was that it forced a consensus pick. We would forward to the President only someone who would receive support from five out of the six commissioners. It worked well.
The commission was set up. We nominated and confirmed district court judges for the Eastern District, Pam Pepper, and the Western District, James Peterson.
It would be a little more difficult to fill the seat on the Seventh Circuit. Our commission started working on that. One part of our compact required that four recommendations for judges be sent to the President. Because the applicant pool was limited, only two received the requisite five out of six votes. During the discussion of what we should do--because we hadn't fulfilled the terms of the compact that required four judges--I agreed to submit just the two. For whatever reason, Senator Baldwin decided to forward to President Obama all eight applicants. She breached the compact. She violated the confidentiality of the process because part of the problem was that some of those applicants received zero to one or two votes.
In the end, President Obama nominated Don Schott. He is a fine man. I have no problem with who Mr. Schott is, but let's be honest, he is probably not my first pick for a judge on the Seventh Circuit. However, because the commission had nominated him and agreed on it, I returned the blue slip.
Unfortunately, because of the politicization of the commission by Senator Baldwin, the Senate Judiciary did not act on that nomination, nor did the Senate, and that nomination expired, which brings us to the 114th Congress and Judge Brennan's nomination.
Again, I have spent probably about 10 minutes reading in detail the strong bipartisan support for Michael Brennan. There is no reason whatsoever that he should not receive a strong bipartisan vote for confirmation. I have described what happened specifically. I described the general precedent of the use of blue slips--not to be used as a veto but simply to indicate a Senator's opinion of a particular judge nominated from their State. It should not be used for a veto.
I urge all my Senate colleagues to provide a strong bipartisan vote of support for a fine man, a fine jurist, and someone who will make a wonderful judge on the Seventh Circuit Court of Appeals.
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