[Congressional Record Volume 164, Number 75 (Wednesday, May 9, 2018)]
[Senate]
[Pages S2558-S2559]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF MICHAEL BRENNAN

  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.

[[Page S2559]]

  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.

                          ____________________