As members of the U.S. Senate Judiciary Committee on Wednesday took up a controversial nominee for a prestigious federal appellate court seat, the Chicago Council of Lawyers issued a strikingly-harsh statement describing Michael B. Brennan as “an utterly unqualified and inappropriate candidate.”
Brennan, who served for nine years as a Wisconsin Circuit Court judge in Milwaukee, has his share of supporters and detractors in his bid for a seat on the Seventh Circuit U.S. Court of Appeals, which handles all appeals from federal district courts in Illinois, Wisconsin and Indiana.
The objections are not only to Brennan’s qualifications, but also to the way Brennan’s nomination was given a hearing even despite the opposition of U.S. Senator Tammy Baldwin, D-Wisc. — opposition that historically would have kept Johnson from the court.
The committee adjourned Tuesday without taking a vote.
The American Bar Asssociation earlier found Brennan “well qualified”; a group of former U.S. attorneys in Wisconsin jointly endorsed him. Sen. Ron Johnson, R-Wisc., said in introducing Brennan on Wednesday that he had widespread support from the legal community in the state, citing a joint letter from the state attorney general and state public defender expressing their enthusiastic support.
Opponents included the Alliance for Justice, a coalition of 120 progressive organizations.
The Council of Lawyers statement called Brennan “well outside the mainstream of judicial practice and thought.” Focusing on Brennan’s judicial record, the council called Brennan “overtly hostile to discrimination claims by women, LGBTQ individuals and minorities.”
It cited a 2004 letter to the editor of the Wall Street Journal in which Brennan wrote that Yaser Hamdi, a U.S. citizen who was captured in Afghanistan fighting with the Taliban and was held as an enemy combatant, had given up his legal rights to contest his confinement. “He has expressed the belief that the Executive Branch need not respect the constitutional rights of citizens (and non-citizens) during times of war, including the ‘war on terror,’ ” the council said of that letter.
The council also warned that Brennan had been repeatedly failed to follow precedents with which he disagreed.
During the hearing, Brennan said he recognized the importance of respecting settled cases, and said he would “faithfully apply” Roe v. Wade, treating it as settled law that he would not seek to disturb.
Brennan left open overturning precedent that was clearly wrong, citing the Brown v. Board of Education decision overturning segregated education as one example.
Brennan told the committee that several quotes about which he was asked, including the Wall Street Journal article cited by the council, were responding to specific points, and said the context was missing.
Judson Miner, a member of the council, said in an interview Wednesday that Brennan’s record raised “very serious concerns.” He added that the council considered equally troubling the failure to adhere to longstanding process.
Before Brennan was introduced, Sen. Dianne Feinstein, D-Calif., the ranking member of the committee, complained of rejecting the traditional process of ensuring that both senators from the state with the vacancy support the nominee. Feinstein said that going back for more than a decade, no Democrat, while chairing the committee, held hearings over the objections of any Republican senator from the state.
Feinstein said the longstanding process, which she dated to 1917, was tradition, rather than any rule.
Moving forward over the objection of Sen. Baldwin, who was not present, was of “great concern,” Feinstein said.