WASHINGTON – U.S. Senator Chris Coons (D-Del.), a member of the Senate Judiciary Committee, today questioned Michael Brennan, President Trump’s nominee to be the U.S. Circuit Judge for the Seventh Circuit, in the Senate Judiciary Committee.
“I have expressed my concern repeatedly with the importance of upholding the blue slip as a way that we insist on the White House consulting with all senators and having a process that, regardless of partisanship, ensures that all senators' views are taken into account and I'm concerned we are again moving ahead with a hearing on a nominee that does not have returned blue slips from both home state senators. I think it is disheartening in this case in particular to proceed, Mr. Brennan, on your nomination even though you're missing a blue slip, because this vacancy only exists because the blue slip was fully honored under the previous administration and I'll address that a little more further.”
Full audio and video available here.
Sen. Coons’ questioning below:
Sen. Coons: Thank you, Mr. Brennan, for a chance to question you and for your service and congratulations on your nomination. I have expressed my concern repeatedly with the importance of upholding the blue slip as a way that we insist on the White House consulting with all senators and having a process that regardless of partisanship, ensures that all senators' views are taken into account and I'm concerned we are again moving ahead with a hearing on a nominee that does not have returned blue slips from both home state senators. I think it is disheartening in this case in particular to proceed, Mr. Brennan, on your nomination even though you're missing a blue slip because this vacancy only exists because the blue slip was fully honored under the previous administration and I'll address that a little more further. Mr. Brennan, I might ask you more directly, as a trial court judge, you presided over a case in which four young African American men were charged with vandalism. They were charged with letting the air out of the tires rented by the Republican Party. The DA reached a plea agreement with the defendants who pled to a misdemeanor in return for probation. You rejected the plea agreement and imposed jail sentences ranging from 4-6 months. While you were a judge, did you frequently reject plea agreements and why did you reject the plea agreement in this particular case?
Mr. Brennan: Thank you for the opportunity to address that case. That was a case about voter suppression, it wasn't letting air out of the tires but rather slashing the tires. It was a two-week trial that I presided over with very detailed evidence. The FBI was involved. They had been tracking the defendants using the cell phone towers. It was a very hard-fought case by some excellent lawyers. Particularly with regard to that case, I think it's important to note that among the defendants, there were varying levels of culpability, which is why there were different sentences. That particular case was one in which none of those defendants appealed. They all had that opportunity if they felt there was an issue with regard to the sentencing or the way the case was handled, to do so. None of them appealed. Because I did my very best to address those various concerns under State v. Gallion that I've been talking about. The need to protect the community, those particular offenders, and then this offense.
Sen. Coons: And, did you feel that because one conclusion that you may have reached was that their goal was not petty crime or vandalism, but was voter suppression, that it was deserving of a higher level of sentencing?
Mr. Brennan: Yes, and the level of facts meant for example the slashing of the tires was on the perimeter of the vans, not on the interior of the vans, which meant that those vans could then not be used the next day.
Sen. Coons: Would it strike you as unusual that we had a nominee for a federal bench who was whether unresolved accusations of direct involvement of voter suppression?
Mr. Brennan: I'm sorry I'm not tracking the question.
Sen. Coons: Okay. I have a limited amount of time, I'll move on. You helped rewrite Wisconsin's criminal sentencing laws part of the Criminal Penalties Committee, and as you've explained in some other contexts, parole was abolished as a result and the act increased penalty ranges roughly 50% for felonies. Given your experience as a judge and your work on the sentencing committee, did you consider the impact on minority communities of increasing penalty ranges so significantly in this action?
Mr. Brennan: I was a staff council of that committee. That committee did consider that. There were 18 members, it was bipartisan, it included judges, prosecutors, criminal defense attorneys, corrections officials, academics. And, ultimately, the product that came out of that committee absolutely did consider that. I think the vote was 16 in favor, 1 concurrence and 1 dissent that then was transitioned and became legislation. It was an important aspect of the classification process to make sure that certain crimes didn't go places they shouldn't. Also, I would indicate we for example under sentencing guidelines considered whether or not there should be mandatory minimum sentences. And, the criminal penalty study committee rejected that, because we thought from informationally accurate, I should say the committee thought, I was the staff attorney for it, the committee thought that for informationally accurate sentences, it was important that the judge had maximum discretion. That would mean not catching people on a mandatory minimum that shouldn't be caught.
Sen. Coons: Thank you. Just one last question, I'll go back to the blue slip issue. In 2011, President Obama nominated Victoria Nourse to the sit for which you're currently nominated. Senator Johnson opposed that nomination on the grounds the Obama administration hadn't consulted with him before nominating Nourse, and ultimately Senator Johnson did not return his blue slip, our practice as a committee to prevent the nomination of folks we don't think appropriately reflect our home states. And, in defense of Senator Johnson's decision, you personally wrote that he should have had a voice in the nominating process given that neutrality comes from applying the same procedures to all and excluding him from the process was a, and I quote, "purely partisan move." Ms. Nourse subsequently withdrew her nomination. Given that Senator Baldwin has not returned her blue slip and was not consulted in this process, have you considered withdrawing yours?
Mr. Brennan: No, senator, the distinction that I think that was being made was Victoria Nourse was re-nominated after a new year and Senator Johnson had just come into office, I think he'd only been in office a couple of days and the blue slip came to him. He had not been part of that selection process. Senator Baldwin and Senator Johnson of course both had their nominees on the Wisconsin Federal Nominating Commission. I was proud to interview with them. I was proud to receive bipartisan support from them. My involvement here as the nominee was to fill out the application, to interview with commission, interview with the White House, and therefore the distinction I would make, I suppose, is based upon that history.