President Donald J. Trump’s made a habit of picking truly deplorable judicial nominees at an unprecedented rate. Even so, on Wednesday, competition for the title of “most deplorable nominee” got even tougher.
In August 2017, Trump nominated Michael Brennan, who’s been a county circuit court judge for nine years, to the U.S. Court of Appeals for the Seventh Circuit. In this lifetime position, Brennan, who’s just 54, would have an outsized effect on how federal law is interpreted in Illinois, Indiana, and Wisconsin. On Wednesday, the Senate Judiciary Committee held his confirmation hearing.
Concerns inspired by Brennan’s record as a “hard-right ideologue” and a rocky nomination process proved well-founded during Wednesday’s hearing: When questioned by New Jersey Democratic Sen. Cory Booker, the would-be federal appellate judge refused to acknowledge the presence of racial bias in the judicial system.
The existence and extreme implications of racial bias in the justice system are, of course, unambiguous.
Federally collected data is clear on the racial divide in the justice system. Black drivers, for example, are more likely to be pulled over than white drivers. White drivers involved in traffic stops are searched at lower rates than black drivers. Black people spend more time behind bars than white people for the same crimes, and black people are three times more likely to be arrested for marijuana possession than white people ― even though the two groups use cannabis at roughly the same rates.
That Brennan refuses to acknowledge racial bias comes as little surprise given his record on other issues. Consider his stance on sex discrimination.
Brennan has been dismissive of the existence of sex discrimination, writing critically of the idea “that a certain group was denied an opportunity to advance by a ‘glass ceiling,'” adding, “[i]mplicit in that phrase is the notion that rules were rigged against some individual or group.”
Brennan’s been vocal about his affection for a pair of Supreme Court decisions that weakened the Violence Against Women Act and made it impossible for people with disabilities to sue state governments for violating the Americans with Disabilities Act. An “ally” of Wisconsin Gov. Scott Walker, Brennan has also championed anti-LGBT state judicial nominees.
While most judicial nominees at least pretend they’ll follow precedent, Brennan has stated, in writing, that he doesn’t think conservative judges should follow the rules.
Brennan has written that conservative judges should only follow precedents they believe are “correct.” During his tenure as a judge in Milwaukee, Brennan in fact ignored precedents, facts, and basic legal principles in making several rulings.
The confirmation hearing never should have taken place. Democratic Wisconsin Sen. Tammy Baldwin did not return her “blue slip,” the signal of consent customarily required from home state senators for a nomination to proceed to a hearing. Among other issues, Trump ignored Wisconsin’s Federal Nominating Commission, the means by which Wisconsin senators had selected judicial candidates since 1979. Five of six commissioners opposed Brennan’s nomination.
In the past, Republican senators used blue slips liberally to block nominees to which they objected by withholding these slips. Under Judiciary Committee Chair Sen. Chuck Grassley, Republicans have discarded that tradition, like so many others.