WASHINGTON ― When the Senate votes this week to confirm Michael Brennan to be a lifetime judge on the U.S. Court of Appeals for the 7th Circuit, it will be voting on a nominee who never should have made it to the Senate floor.
That’s because Sen. Tammy Baldwin (D-Wis.) was denied the ability to stop him. When President Donald Trump nominated Brennan to the court based in Baldwin’s state, she should have had the right, per longstanding Senate tradition, to deny or advance his nomination in the Judiciary Committee.
But when she announced she would not be turning in a so-called blue slip for Brennan ― literally a blue piece of paper that signals a senator’s support for a home-state nominee ― the chairman, Sen. Chuck Grassley (R-Iowa), ignored her and gave Brennan a hearing anyway, then voted his nomination out of committee. The blue-slip rule is a tradition as opposed to a hard Senate rule, although the Senate largely functions by tradition.
On Tuesday, Baldwin urged senators to oppose Brennan and decried Republican leaders bending the rules to push him through.
“Today, respect for the time-honored blue slip comes to an end,” she said on the Senate floor. “I urge my colleagues to recognize that while today’s action disrespects my role as the junior senator from Wisconsin, tomorrow it may well be you.”
Grassley had the blessing of Senate Majority Leader Mitch McConnell (R-Ky.) when he bypassed Baldwin. The GOP leader has been watering down the role of blue slips since Trump became president. He’s argued that no single senator should have the power to halt a Circuit Court nomination.
“My view is that no one senator ought to be able to stop a circuit judge,” McConnell said Thursday to conservative radio show host Hugh Hewitt.
It’s one of the most glaring double standards playing out in the Senate today.
Never mind that McConnell’s greatest legacy is single-handedly denying President Barack Obama a hearing on his Supreme Court pick. GOP senators routinely abused blue slips to block Obama’s court picks, to the point of absurdity. Now that a Republican is in the White House, McConnell wants to prevent Democrats from using the same tool.
The reason blue slips exist at all is to inject bipartisanship into the judicial confirmation process. Democrats upheld the rule throughout Obama’s presidency. But the tradition is unraveling as McConnell focuses on his broader goal while Trump is president: to confirm as many young and conservative judges as possible.
“This is my top priority in the Senate,” McConnell told Hewitt. “By appointing and confirming these strict constructionists to the courts who are in their late 40s or early 50s... I believe we’re making a generational change in the country.”
He’s right. Trump has been nominating judges at record-breaking levels, and the majority of them have records of being anti-LGBTQ rights, anti-abortion rights or anti-voting rights. Nearly all are young, white and male. Since these are lifetime gigs, their court rulings will affect millions of Americans for decades after Trump has left the White House.
Baldwin’s anger over Brennan’s vote isn’t limited to the way he got to the Senate floor. His nomination is the result of a mangled partisan process that has plagued this empty Circuit Court seat for years. Wisconsin’s other senator, Republican Ron Johnson, single-handedly blocked Obama from filling this vacancy for more than six years. Johnson did that by ― wait for it ― not turning in a blue slip.
Beyond that, when the Trump administration first nominated Brennan, a 57-year-old Milwaukee lawyer, Baldwin said it did so without “meaningful consultation” with her. It also broke with precedent by not getting the required support from the Wisconsin Judicial Nominating Commission.
“Trump chose to move forward in a partisan manner,” Baldwin said Tuesday. “Today, we send the message that neither this nor a future president needs to respect the role of home-state senators in the selection of judicial nominees.”
Brennan’s confirmation vote will be the second time this year that McConnell is bucking blue slips to confirm a judge.
In January, he held a confirmation vote for now-U.S. Circuit Court Judge David Stras of Minnesota. Then-Sen. Al Franken (D-Minn.) did not turn in a blue slip for Stras, but Grassley gave him a hearing anyway and sent his nomination to the Senate floor.
Carl Tobias, a judicial nominations expert and law professor at Virginia’s University of Richmond, said it was an “unpersuasive” argument by McConnell that blue slips should be honored for district nominees but not for Circuit Court nominees.
“Double standards don’t bother him,” said Tobias. “Mitch McConnell just keeps ratcheting up and undermining Senate norms.”
Language has been added to further characterize the blue-slip rule.