Senate Judiciary Committee Republicans ended a century-old tradition Thursday that will accelerate the appointment of right-wing federal judges in purple and blue states, where they will preside over thousands of cases that will never reach the Supreme Court.
The move, led by Senate Judiciary Committee Chairman Charles Grassley of Iowa, was the most egregious partisan intervention in the judiciary since Republican Majority Leader Mitch McConnell blocked 2016 hearings on President Obama’s final Supreme Court nominee, Merrick Garland, which would have given the court a center-left majority. (After the 2016 election, conservative Neil Gorsuch was appointed and confirmed.)
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“Michael Brennan gets voted out of Senate Judiciary Committee along party lines despite fact that he refused to acknowledge implicit racial bias in the justice system,” tweeted Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, and former head of the Justice Department’s Civil Rights Division under President Obama. “Grassley kills the blue slip tradition with this vote. Brennan voted out over objection of a home-state senator.”
“Chuck Grassley’s blue slip policy blocked three of Obama’s African American circuit noms. But now he’s changed his policy to ram through two of Trump’s white circuit noms, inc Michael Brennan,” tweeted Christopher Kang, who served in the Obama White House Counsel’s Office for more than four years and was in charge of its judicial nomination process.
These comments underscored that Republicans under President Trump are packing the federal courts with right-wing nominees, many of whom are not qualified to hold these lifetime posts. The public often underestimates the power of federal judges, especially at the appellate level. While the Supreme Court gets about 7,000 appeals annually and hears between 100-150 cases, federal appeals courts receive upwards of 60,000 appeals annually and are often the final arbiter of justice in America.
What transpired Thursday was both procedural and political. On procedure, the Republican Judiciary Committee chairman overrode an objection by Michael Brennan’s home-state senator, Democrat Tammy Baldwin of Wisconsin, who didn’t return a so-called blue slip, in effect, putting Brennan’s nomination on hold.
“This is a 100-year-old tradition. It’s not an official policy. It’s not a rule, but it has been a tradition,” said Sen. Dianne Feinstein, D-CA, protesting Grassley’s decision to override Baldwin and vote on Brennan’s nomination, which moved to the Senate on a party-line vote. “Since its inception, no Democratic chair of the Judiciary Committee has ever held a hearing for a judicial nominee over the objection of a Republican senator. That’s fact and it’s history.”
But Grassley’s decision is also extremely political. Not only does it show that Republicans will dispense with any rule or tradition that stands between them and exerting political power, it also shows that the GOP is eager to foist extremist judges on purple and blue states.
“Today’s vote… shows just how far Chuck Grassley is willing to go to cripple the system of checks and balances designed to protect our federal courts and our liberty,” said Marge Baker, People for the American Way executive vice president. “His decision to move forward on the Brennan nomination over the objection of a home state senator sends a clear signal that the Trump administration can run roughshod over individual senators when it comes to judicial nominations. Donald Trump and [White House Counsel] Don McGahn have repeatedly nominated unqualified political cronies and narrow-minded elitists to critical seats on the federal bench.”
Baker is referring to several Trump nominees whose controversial pasts forced them to withdraw from the process. But Feinstein, in remarks last December, also noted Republicans were ramming nominees through the process to pack the federal courts with unqualified right-wingers.
“The speed at which these judges are being rammed through the process is stunning,” she said. “We’re already seeing the ramifications. Just yesterday the White House announced that two of its nominees would not be moving forward. One nominee, Brett Talley, had already been voted out of the Judiciary Committee, but we learned of troubling undisclosed information while he was pending on the floor…”
“Republicans refused to advance seven circuit court nominees last year, but now we’re speeding through the process to fill those seats with conservative judges,” Feinstein said. “Fairness aside, we should all be concerned that we’re giving lifetime appointments to potentially unqualified nominees.”
How unqualified is Brennan? Consider this exchange between Brennan and Democratic New Jersey Sen. Cory Booker, in which Brennan dodged Booker’s questions about racial bias in the federal justice system.
Sen. Booker: You’re aware that African Americans are stopped more than whites for drug searches, that there’s no difference between blacks and whites who are using drugs or dealing drugs, but they’re 3.7 times more likely to be arrested for it. You’re aware of the data, I imagine, that says African Americans are more likely to get mandatory minimum sentences for the same crimes. You’re probably aware that African Americans are more likely to serve more time for similar crimes. Do you think explicit racial just exists in the Justice system as you know it?
Michael Brennan: One of the things I can say, Senator, is I want to put my pro bono [volunteer] efforts into —
Sen. Booker: I’m not asking about you specifically, sir. I’m asking do you think racial bias exists in the criminal justice system?
Michael Brennan: I can’t be in a position, Senator, under the Canons of Ethics, of taking positions until I would —
Sen. Booker: Sir, sir. I’m sorry. The data, the evidence, is profound. I’ve had Republican nominees, Democratic nominees, FBI leaders in hearings I’ve had, simply point to the fact that in the United States of America, implicit racial bias impacts the criminal justice system. And you have no opinion, whether, on the facts, or no assessment, on whether racial bias exists in the American criminal justice system?
Michael Brennan: I try to put my time and effort into those areas where it’s most, where I think it would have an impact. For example, for the Federal Defenders Office in Wisconsin.
Sen. Booker: That’s not the question I’m asking, sir. I’m asking, yes or no, do you think racial bias, implicit racial bias, exists in the criminal justice system. Yes or no?
Michael Brennan: I would indicate Senator, absolutely, if I could take a look at all those statistics and studies that you looked at, that I would be able, be in a position to offer an opinion.
Sen. Booker: And you haven’t? You’re a judge in the United States of America and you have not looked at issues of race or sentencing in the criminal justice system?
Grassley cut off Booker from asking further questions.
As the Leadership Conference tweeted a short while later, “The Senate Judiciary Committee, on a party-line vote, just advanced the nomination of Michael Brennan to the 7th Circuit. This marks a dangerous surrender to Trump and represents Chuck Grassley’s breathtaking hypocrisy on blue slips.”
But more is at stake than Grassley’s hypocrisy. The Republicans are engaged in a massive right-wing court-packing scheme that will last for decades — long after the Senate’s current Republican majority is gone. This is one of the Trump administration’s most potentially damaging legacies.