[Congressional Record Volume 164, Number 74 (Tuesday, May 8, 2018)]
[Senate]
[Pages S2538-S2539]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Michael Brennan

  Ms. HIRONO. Mr. President, just before we left for last week's State 
work period, the majority leader filed cloture on six nominees for 
Federal circuit courts. He did not take this action in a vacuum.
  Over the past year and a half, the majority leader and the 
Republicans in the Senate have joined with Donald Trump to try to pack 
our Federal courts with ideological judicial nominees who seek to 
change American law to match their partisan politics.
  To accomplish this goal, the majority leader and Senate Republicans 
have also been eliminating procedural checks designed to ensure a fair 
and qualified judiciary. One of those checks is the blue-slip 
requirement--a mechanism for Senators to indicate their approval of 
nominees from their States.
  In the past, when Senators objected to a judicial nomination in their 
home State, with almost no exceptions, the Judiciary Committee took no 
further action on that nominee. This was because the Constitution 
requires the President to get the advice and consent of the Senate when 
nominating judges.
  Traditionally, this has been done by consultation with the home State 
Senators, but the majority leader and his Republican colleagues have 
largely abandoned this constitutional safeguard.
  The Judiciary Committee has, though very rarely, scheduled hearings 
for nominees who lack one blue slip and whose home State Senators have 
returned negative blue slips.
  Now, tomorrow, we will have a hearing for a Ninth Circuit nominee for 
whom no blue slips have ever even been returned. This has never 
happened in the modern history of the Senate, and it certainly was not 
the standard the majority leader and the chair of the Judiciary 
Committee applied to President Obama's judicial nominees.
  It does not have to be this way. It is possible for home State 
Senators to confer with this administration and identify nominees 
acceptable to both

[[Page S2539]]

parties. For example, the Trump administration consulted with Senator 
Schatz and me about nominees to fill Hawaii vacancies on the district 
and circuit courts. We worked together to identify nominees who would 
be qualified and appropriate for these lifetime appointments--Jill 
Otake for the district court and Mark Bennett for the Ninth Circuit. We 
returned our blue slips, and the nominations are moving forward.
  Abandoning the blue slip has nothing to do with overcoming so-called 
Democratic obstruction of President Trump's judicial nominees. This 
President has seen more circuit court nominees confirmed at a faster 
pace than any modern President. In fact, he has bragged about the pace 
of confirmation of his judges, including at the State of the Union 
Address.
  Instead, abandoning the blue-slip process is about gutting checks and 
balances that would prevent Donald Trump from packing the court with 
ideologically driven judges as quickly as possible.
  This week, we are considering one of those judges--Michael Brennan--
whose nomination should not proceed. It has come to the Senate without 
the traditional advice and consent and over the strong objection of his 
home State Senator, Ms. Baldwin.
  In fact, in a particularly hypocritical twist, Mr. Brennan was 
nominated to fill a seat that has been kept open for over 7 years 
because the senior Senator from Wisconsin--a Republican--refused to 
return a blue slip for Victoria Nourse--President Obama's nominee for 
this very same seat.
  At that time, Mr. Brennan--the nominee we are debating today--even 
wrote an op-ed in the Milwaukee Journal Sentinel in 2011 arguing in 
favor of respecting the blue-slip requirement on the Nourse nomination, 
saying:

       There are now two Senators from Wisconsin from different 
     political parties, so to exclude Johnson and those citizens 
     who voted for him would be a purely partisan move.
       Johnson represents millions of Wisconsin citizens, just as 
     Sen. Herb Kohl does and Feingold did. In the same way those 
     senators had their say in Nourse's first nomination, Johnson 
     should have his say . . . [He] just wants to be heard and 
     fulfill his constitutional duty of ``advice and consent.''
       Why can't Johnson, elected by the citizens of Wisconsin, 
     participate in the selection of a judge for a Wisconsin seat 
     on the 7th Circuit, as Kohl did?

  Now that the shoe is on the other foot, Mr. Brennan is perfectly 
happy to have his nomination move forward over the objections of one of 
Wisconsin's Senators--Ms. Tammy Baldwin. This is the kind of hypocrisy 
we have come to expect from this administration, but I am also not 
surprised that Senator Baldwin did not approve Michael Brennan, 
considering his troubling views on the way the law works. He should not 
be confirmed to a lifetime appointment on the Seventh Circuit.

  In a 2001 op-ed for the National Review online, Mr. Brennan expressed 
dangerous ideas that call into question the duty of Federal judges to 
follow precedent. In his op-ed, Mr. Brennan casts doubt on whether 
judges have a responsibility to rely on how other judges before them 
interpreted laws, what lawyers call stare decisis. He wrote:

       If, after reexamination of a legal decision, a court 
     concludes that the ruling was incorrect, stare decisis does 
     not require that the rule of that case be followed. . . . 
     Bush-appointed judges cannot accurately be labeled as 
     activists for reexamining and following only correct 
     precedent.

  I interpret this op-ed to mean that a judge is free to determine 
whether he or she will agree that the precedent is correct. That is not 
how the law works. So we, in the Judiciary Committee, asked Mr. Brennan 
about this article during his confirmation hearing, and he came up with 
a clever explanation for it. He claimed his article asserted that 
judges are not necessarily bound by decisions of their own district or 
their own circuit. His article, he claimed, did not argue that judges 
can disregard precedent of higher, controlling courts. That is not what 
he wrote.
  It is a convenient explanation, I admit, but it doesn't really hold 
up if you read his op-ed, where he clearly argues that President George 
W. Bush's judicial nominees should receive a pass for not following the 
law. This is what used to be called a confirmation conversion.
  As with too many of President Trump's nominees, we are being told to 
ignore what we read or hear and set aside common sense. We are told by 
these nominees that what they talked about yesterday, think about 
today, wrote about yesterday--we are supposed to just ignore all of 
that. We are supposed to pretend that what someone has advocated for in 
the past, no matter how recent, will have no bearing on what they will 
do as a judge, but, remember, Judge Brennan has said he doesn't feel 
bound, according to his op-ed piece, by precedent.
  Judges, as former Chief Justice Rehnquist said, do not come to their 
positions as blank slates. Each of them brings their own ideas and 
perspectives to the bench.
  The majority leader recently said his most consequential political 
act--political act--was blocking Judge Merrick Garland's nomination to 
the Supreme Court. This is the same majority leader complaining that 
Democrats are now obstructing President Trump's judicial nominees. What 
could be more obstructionist than to totally ignore a nominee to the 
Supreme Court, no less?
  The majority leader's unprecedented action prevented President 
Obama's well-qualified, centrist nominee from even having a 
confirmation hearing, let alone a vote, and it paved the way a year ago 
for Senate Republicans to jam through President Trump's conservative, 
ideological nominee, Neil Gorsuch--a Federalist Society-backed 
nominee--to provide a five-vote conservative majority on the Court that 
will continue to roll back individual rights for decades. President 
Trump put his stamp on this approach when he tweeted, ``Republicans 
must ALWAYS hold the Supreme Court.'' They are taking this same 
approach to all of our Federal courts.
  I take the Senate's constitutional obligation to provide advice and 
consent on judicial nominees very seriously. We should be carefully 
considering a nominee's record to ensure they understand that courts 
are supposed to protect the rights of minorities.
  The courts do not belong to Democrats or Republicans, despite the 
fact that Donald Trump has said Republicans must always hold the 
Supreme Court. He applies that, by the way, to the district courts as 
well as circuit courts. We must ensure that judges with lifetime 
appointments will treat all Americans--all Americans, and, I would say, 
particularly minorities and women--fairly in court. This is what the 
blue-slip requirement is really about. Home State Senators have a 
unique role in ensuring that the Federal judges serving in their States 
are highly qualified, understand the importance of applying the law 
fairly, and meet the needs of their community.
  I urge Senate Republicans to reverse their ill-conceived decision to 
functionally eliminate the blue-slip requirement. We must all stand 
together to respect Senator Baldwin's objections and oppose this 
nominee--who, to me, is the height of being a hypocrite--or all of us 
are at risk.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Flake). The Senator from Vermont.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. The Senate is not in a quorum call.
  The Senator is recognized.
  Mr. LEAHY. Mr. President, we ``new'' Members don't think to look up 
at the lights. I apologize, but I appreciate being recognized.