Nomination of Michael Brennan

Floor Speech

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Mr. SCHUMER. Mr. President, in a few hours, the Senate will vote to proceed to the nomination of Michael Brennan to the Seventh Circuit Court of Appeals.

Mr. Brennan has not received a blue slip--that is a notice of approval that has been a tradition in the Senate--from one of his home State Senators, Ms. Baldwin. So the vote today will be a slap in the face to the custom of senatorial courtesy. It will be a slap in the face to the bipartisanship we hear so many on the other side of the aisle and so many more Americans talk about. It is blatant disrespect to every Senator who wants to withhold his or her judgment on a judge, a tradition that has been respected by Democrats and Republicans until Leader McConnell abruptly changed this earlier this year for circuit court judges.

What makes this even more galling is the history of this vacancy on the Seventh Circuit. Mr. Brennan will fill the seat that had been held open by Wisconsin's other Senator for 6 years during the Obama administration. Well, how was Senator Johnson able to withhold? He didn't return his blue slip, and Senator Leahy, the Democratic chair, respected it. The same should prove true for Senator Baldwin. She should get the same respect from Senator McConnell and Chairman Grassley that Senator Johnson got for this same seat from then-Leader Reid and Senator Leahy, the chairman of the Judiciary Committee, but, no, our Republican colleagues keep changing the rules.

Senator Johnson's right to refuse a judge from his home State, which, as I said, was respected by then-Chairman Leahy, was defended publicly in an op-ed by--guess who--Mr. Brennan himself. He wrote an op-ed--he was not a nominee for judge then--saying Johnson's right to hold the seat open should be respected. Now he is on the floor with the blue slip being ignored for the first time since I have been here, since 1998.

How is Senator Baldwin's right to consult on judges for her State any less important than Senator Johnson's? It is mind-bending hypocrisy, it is an appalling double standard, and it is another erosion of minority rights and the tradition of comity that I know so many of my colleagues on both sides of the aisle wish played a greater role in the Senate.

Furthermore, as Senator Baldwin has talked about, they have always had a bipartisan commission recommending judges in Wisconsin. There were several nominees who got through that bipartisan commission, needing both Democratic and Republican support to get through that commission. As I understand it, they were ignored by the White House, and Mr. Brennan, a hard-right nominee--I am not sure if he didn't pass the committee or wouldn't have passed the bipartisan committee of Wisconsin--is here on the floor. This is the second time we are going to be voting on a judge who didn't receive both blue slips. There will be another hearing today in the Judiciary Committee on Ryan Bounds for the Ninth Circuit in Oregon, even though he didn't receive a blue slip from Senator Wyden or Senator Merkley.

I would admonish my friends on the other side of the aisle that this is a very dangerous road you are treading. As everyone knows, the winds of political change blow swiftly in America. The minority one day is the majority the next. There will come a day when the shoe will be on the other foot once again, and I don't think my friends will be too happy if they are not afforded the courtesy of consulting on home State judges.

I like the tradition of bipartisanship when it comes to judges. I argued privately with Leader Reid that we shouldn't remove the 60 votes. I was successful on the Supreme Court--he didn't include that-- but not on district court and circuit court judges. So in a tit for tat--I understand that--Leader McConnell said that we are doing it for the Supreme Court too. But the blue slips are a whole new world.

I have always had three standards for the judges I participate in choosing for New York. Excellence--they should be legally excellent, not political actors. Diversity--I like diversity on the bench when we can get it. We always try, and we have had a lot of success in New York. But I also like moderation. I don't like judges to the far right--that is obvious--but I also don't like judges to the far left because judges who are ideologues tend to believe they can make law rather than interpret law.

Week by week, month by month, year by year, the bounds--both sides of the aisle are somewhat to blame, but this blue slip goes way beyond-- and the tradition of bipartisanship that have kept judges more in the center, that have kept judges who tend to interpret the law rather than make it have evaporated. Once the blue slips are gone, that is the last vestige. There will be little incentive for the majority to consult the minority on judicial nominations. That is objectively not a good thing. We want judges who are qualified, evenhanded, not partisan instruments. A Senate that acts only as a rubberstamp for the President's nominees is not doing its job, and we may as well not advise and consent if the party in power, even by one vote as it is here today, just rubberstamps every one of the President's judges.

So I urge my Republican friends to consider the larger implications of the vote on Michael Brennan--the seat that was vacant for 6 years in response to the blue slip. By the way, Leader McConnell and Chairman Grassley signed a letter with Leader Reid--then-Majority Leader Reid-- not to get rid of the blue slip, which he listened to. So if you want to talk about tit for tat, this one doesn't belong. Reid kept the blue slip, even though lots of vacancies stayed for a lot longer than a year. McConnell is getting rid of it for circuit court judges, and it is a move away from an impartial, nonpolitical judiciary.

Every Senator, if he or she were facing what Senator Baldwin is facing today, would want this body to defend their rights. I would urge at least one or two of my colleagues on the other side of the aisle not to vote in lockstep and for the sake of the Senate, for the sake of the country, to vote no on Brennan, whether you agree with his views or not, as a protest to the way this has happened.

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