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Experts: Wisconsin vacancy on Appeals Court won’t be filled anytime soon

cmykAlthough President Donald Trump recently announced that he had chosen a Milwaukee lawyer to fill a long-vacant federal judgeship designated for a judge from Wisconsin, the nominee still needs to be confirmed by the U.S. Senate.

Experts say don’t expect that to happen anytime soon.

Trump announced on Aug. 4 that he had chosen Michael Brennan, a lawyer and former Milwaukee County judge, to fill the U.S. 7th Circuit Court of Appeals’ opening for a Wisconsin judge. Although that got the ball rolling, the nomination process could still be slowed up greatly.

If history is any indication, partisan politics will once again pose a big obstacle.

Over the past two decades, political squabbling has kept various vacancies on the nation’s highest court and the federal appeals courts around longer than many thought necessary. The open seat on the U.S. 7th Circuit Court of Appeals promises to be no different. It has been vacant since 2010 — making it one of the longest-standing openings in the federal judiciary.

Federal judge nominees in Wisconsin, as well as 18 other states, are usually vetted and chosen by a nominating commission, which is run by the Wisconsin State Bar. The process begins when three or four names are given to the state’s U.S. senators, who then make a recommendation to the president. If the president approves the nomination, it goes to the full Senate for approval.

Brennan is not the first Wisconsin lawyer to be nominated for the spot in recent years. President Barack Obama, during his term in office, had put forward the name of the Madison lawyer Donald Schott. Schott was one of eight candidates interviewed by the commission, which was never able to agree on a full slate of candidates. In the end, Baldwin sent all eight names to the White House, but the Senate never held a hearing for Schott.

With Brennan, those procedures were abandoned. Trump’s decision to put forward Brennan without first consulting the nominating commission prompted  Democratic U.S. Senator Tammy Baldwin, who is up for re-election next year, to issue a statement accusing Trump of acting out of partisan motives and disrespecting Wisconsin’s process.

But Trump’s nomination of Brennan might not have been as much of a transgression as Baldwin would have everyone believe.

For one, there’s nothing stopping the president from choosing whomever he wants. Any limitations that might exist are those that the Senate has imposed on itself, says Marquette Law Professor Chad Oldfather, who studies judges.

“Since the president is the one who is assigned the nomination power by the Constitution, there’s nothing that prevents him from nominating whoever he wants,” he said.

One example of those limitations is the “blue slipping” process, in which the Senate has agreed as a whole not to hold confirmation hearings without the consent of both Senators from the nominee’s state.

The nominating process, Oldfather notes, has been used recently to help take politics out of blue-slipping.

Charles Geyh, a law professor at the Indiana University Maurer School of Law who also studies judges, pointed out that the current reliance on nominating commissions is relatively new. They started being used during President Jimmy Carter’s administration as a way to diversify the federal judiciary. Only in later years were they put to different purposes.

“(President Ronald Reagan) retained nomination commissions in an effort to identify ideologically compatible nominees,” said Geyh. “More recently, nominating commissions have been recommended and re-purposed as a more effective way to diminish gridlock and produce qualified, politically acceptable nominees.”

Rather than turning to nominating committees, presidents for years had merely tried to make sure that any nominee they put forward would at least receive the backing of the senators of their own political party.

Before the widespread use of nominating committees, presidents had offered what was known as “senatorial courtesy.” This meant that they deferred to the nomination preferences expressed by senators belonging to their own party. The notion of senatorial courtesy, Geyh says, dates as far back as the early to mid 19th century.

“Circuit courts of appeal did not come into being until the 1890s, and the president has had a bit more leeway there, but always in close coordination with and advice from senators in the president’s party from the prospective nominee’s state,” said Geyh.

At the same time, Geyh and Oldfather said that just because these matters used to be handled differently, that doesn’t mean Trump will get his way now. Because the president has bypassed that nomination process, Baldwin is unlikely to return her blue slip and allow a hearing to move forward for Brennan. Geyh notes that historically, there is precedent for a move of this sort.

Should Baldwin refuse to consent to Trump’s choice, the only way forward for Brennan would be to have the Senate change the blue-slip rule. Such a step would not be without consequences.

“(The rule) creates an incentive for compromise,” says Oldfather. “If the Senate won’t consider any judicial nominee for a Wisconsin seat unless both senators consent to it, that means the“president” has to pick somebody who is satisfactory to both.”

The chances that such a change would be adopted are slim, said Oldfather.

“There seems to be a growing sense that the Senate needs to be able to check the President, and the blue-slip process is a small but significant piece of its ability to do so,” he said.

Geyh, on the other hand, is not so sure. He noted that Senate Republicans earlier this year eliminated filibuster rights for U.S. Supreme Court nominees because they were believed to have gotten in the way of confirming the nomination of now-Justice Neil Gorsuch to the high court. But if the filibuster was perceived to be such an obstacle, then why let the blue slip get in the way of nominations to the circuit and district courts?

“The rejoinder is that the blue slip is different–it’s an extension of senatorial courtesy, and what goes around comes around–eliminating that courtesy for Democrats now will turn on them the next time the Democrats gain control,” Gehy said. “But that kind of thinking hasn’t really controlled Senate decision making in the appointments context recently.”

— The Associated Press contributed to this report

About Erika Strebel, [email protected]

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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