Bench Memos

Law & the Courts

Tammy Baldwin’s Phony Process Objection to Seventh Circuit Nominee

Last week, President Trump added to his excellent record of judicial picks by nominating Milwaukee lawyer (and former state judge) Michael B. Brennan to a vacancy on the Seventh Circuit. But Senator Tammy Baldwin of Wisconsin is objecting to Brennan’s nomination on the ground that President Trump supposedly “turn[ed] his back on a Wisconsin tradition of having a bipartisan process for nominating judges.”

Baldwin’s objection cannot be taken seriously.

Under the agreement between Baldwin and her Republican colleague Ron Johnson, each senator appoints three members of the six-member judicial nominating commission, and a nominee is deemed approved by the commission only if that nominee gets at least five votes. Brennan received four votes—more, I’m told by folks involved in the process, than any other candidate, including the two Baldwin recommended.

It’s true that Brennan, despite receiving bipartisan support, fell one vote short of the five-vote threshold. But Baldwin herself, just two years ago, sent to President Obama’s White House “the names of all eight applicants” to the commission, including six who had received no more than three or four votes. In defense of her disregard of commission rules, Baldwin’s chief of staff explained, “This appellate court vacancy is now 1,947 days old and Senator Baldwin believes it is important that action be taken to put a judge in place to serve.”

Having invited President Obama to select a nominee who didn’t meet the five-vote threshold, Baldwin can hardly be heard to complain that President Trump has done so. Indeed, she should be grateful that he has selected a candidate who received approval from one of her appointees. The vacancy is now 2,189 days old, so Baldwin’s belief that “it is important that action be taken to put a judge in place” ought to be stronger than ever.

I’m further informed that the White House consulted with Baldwin and interviewed the two candidates she recommended, neither of whom (I’m told) received more than three votes from the commission.

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