Ron Johnson’s Hypocrisy on Federal Judgeship

Let’s call U.S. Sen. Ron Johnson’s approval of attorney Michael Brennan’s nomination to the Seventh Circuit Court of Appeals what it is: hypocrisy. Action that Johnson two years ago condemned as repugnant to the best interest of the people of Wisconsin he now considers acceptable because it helps his own party.

Johnson, using his own words, broke his contract with U.S. Sen. Tammy Baldwin, blew up bipartisanship, and chose his party over us.

Together, Johnson, a Republican, and Democratic Baldwin established the Wisconsin Federal Nominating Commission to advise the senators about (among other positions) a judicial appointment for our state’s open seat on the federal appeals court. The Commission seeks out qualified candidates, interviews them, and recommends four to six finalists. The Commission consists of six members; each senator appoints three. The rules of the Commission prohibit recommending any judicial candidate who does not receive five affirmative votes.

In a May 22, 2015 press release still on his website, Johnson said the makeup of the Commission and the five-vote requirement help “ensure that the senators would nominate qualified judges rather than candidates who were on either extreme.” In another statement, Johnson described the requirements as creating a “fair process.”

This spring, the Commission accepted applications for the Seventh Circuit position, but didn’t recommend anyone because no candidate garnered five votes. Nevertheless, President Trump, presumably in consultation with Johnson, nominated Brennan for the seat, ignoring the results of the Commission. Brennan received four, not five, votes.

Johnson said soon after Brennan’s nomination that the White House “made a great decision” as Brennan “is eminently qualified and was the only candidate who received bipartisan support from the judicial nominating commission.

Two years ago two candidates, attorney Donald Schott and Milwaukee County Circuit Judge Richard Sankovitz, received the required five Commission votes for the same seat, but the Commission could not recommend them because it could not recommend the required minimum of four candidates. Baldwin notified the White House of all eight individuals the Commission interviewed. (President Obama eventually nominated Schott, though Schott was not confirmed.)

Here’s the hypocrisy. Johnson publicly decried Baldwin’s move, tweeting on May 22, 2015, that the “[p]rocess to find judges worked until @SenatorBaldwin blew up our bipartisanship” and stating in his press release that it was “unfortunate that Senator Baldwin chose partisanship and politics over what is in the best interest of the people of Wisconsin.”

Johnson told a reporter that Baldwin broke her contract with other senators when she forwarded all eight names to Obama.

Is a tit-for-tat justified—because Baldwin bypassed the Commission’s results two years ago Johnson can do the same? The Senate is not elementary school and consideration of lifetime judicial appointments should not involve retaliation against a fellow senator. Moreover, Johnson and President Trump went significantly beyond what Baldwin and Obama did two years ago. Then, two candidates earned the required five votes, and Obama nominated one of those two. Brennan did not get the required five votes.

Johnson’s reneging on the rules of the Commission came just six months after he signed its amended charter, which maintained the five-vote requirement.

Amid talk of the Republican Senate eliminating the “blue slip” practice that allows a senator from a federal court nominee’s home state to block confirmation, Johnson appears the hypocrite again.  Johnson used his blue-slip power back in 2011 to stop consideration of Obama’s first nominee for the Seventh Circuit seat.

Johnson’s endorsement of Brennan’s nomination suggests that Johnson will do whatever is politically expedient, notwithstanding his prior agreement to a “fair process.” Whether Brennan should be confirmed by the Senate is a separate matter. Wisconsinites of all political stances should be concerned with the process by which Brennan’s nomination came about—when those in the party in power without hesitation change the rules to get what they want.