The last time the U.S. Court of Appeals for the Seventh Circuit had a full complement of judges was on January 16, 2010.  The next day, Judge Terence Evans moved to senior status.  Evans’ seat, informally assigned to Wisconsin, remains vacant to this day.  Due to infighting between his home-state senators, Michael Brennan, Trump’s nominee to fill the seat, is unlikely to see a smooth confirmation to the seat.

Background

Michael B. Brennan was born in 1963 in Milwaukee, Wisconsin.  Brennan received his B.A. cum laude from the University of Notre Dame in 1986.  He then proceeded to Northwestern University Law School, where he served as coordinating note and comment editor at the Northwestern University Law Review.  After graduating from law school, Brennan completed a two-year clerkship with Judge Robert Warren[1] on the U.S. District Court for the Eastern District of Wisconsin.[2]

After his clerkship, Brennan joined the Milwaukee office of Foley & Lardner, where he served as an associate for four years.  In 1995, Brennan left Foley to clerk for Judge Daniel Mannion on the U.S. Court of Appeals for the Seventh Circuit.

In 1997, Brennan joined the Milwaukee County District Attorney’s Office as an Assistant District Attorney.  The next year, while maintaining his position, Brennan also joined the Wisconsin Criminal Penalties Committee, a Committee intended to study and recommend changes in sentencing, as a staff attorney.  In 2000, Brennan was appointed by Gov. Tommy Thompson to be a judge on the Milwaukee County Circuit Court.

In 2003, Brennan applied to the Wisconsin Federal Judicial Commission for a vacancy opening up on the Seventh Circuit.[3]  However, Wisconsin Supreme Court Justice Diane Sykes got the nomination (and was ultimately confirmed).  In 2007, Brennan applied simultaneously for vacancies on the U.S. District Courts for the Eastern and Western Districts of Wisconsin.[4]  He was not selected for either vacancy, however, with the nominations going to fellow state judges Timothy Dugan and J. Mac Davis respectively.  However, neither candidate was ultimately confirmed.

In November 2008, Brennan unexpectedly announced his resignation from the bench to join Gass Weber Mullins LLC., a Milwaukee based complex litigation firm.[5]  He continues to practice there as a Partner.

History of the Seat

The seat Brennan has been nominated for is the longest pending appellate vacancy.  This seat opened on January 17, 2010 with the retirement of Judge Terence Evans.[6]  On January 22, 2010, Wisconsin Senators Herb Kohl and Russ Feingold, both Democrats, recommended four candidates for the vacancy to President Obama: U.S. District Judge Lynn Adelman; Prof. Victoria Nourse of the University of Wisconsin Law School; Judge Richard Sankovitz of the Milwaukee County Circuit Court; and defense attorney Dean Strang.[7]  On July 14, Obama nominated Nourse for the seat.[8]  No action was taken on Nourse’s nomination before the end of the 111th Congress.

In the 2010 elections, Feingold was defeated by Republican Ron Johnson.  Upon joining the Senate in 2011, Johnson indicated his opposition to Nourse’s nomination, claiming both procedural and substantive reasons for his opposition.[9]  Due to Johnson’s withholding of a blue slip, Nourse never got a hearing and her nomination was withdrawn at the end of 2011.

After Kohl was replaced by fellow Democrat Tammy Baldwin in 2012, Baldwin and Johnson struck a deal on a process to fill three federal judicial vacancies for Wisconsin, including the Seventh Circuit seat.[10]  The deal had both Johnson and Baldwin appoint three members to a Commission, which would then solicit applications and recommend no less than four candidates for each vacancy (for a candidate to be recommended, they needed support from five out of six commissioners).[11]

The deal allowed for the successful confirmations of Judges James Petersen and Pamela Pepper in 2014.  However, the Commission was unable to agree on four candidates to fill the Seventh Circuit vacancy, with only two out of eight finalists: Sankovitz and Madison attorney Donald Schott, receiving the requisite five votes.[12]  While Johnson offered to send only the names of Sankovitz and Schott to the White House, Baldwin instead sent all eight candidates, an action that Johnson characterized as breaking the original agreement.[13]

In January 2016, the White House nominated Schott to the vacancy.[14]  While Johnson initially demurred to support Schott,[15] he ultimately returned a blue slip to allow Schott’s nomination to proceed.  The Republican-controlled Senate Judiciary Committee held a hearing on Schott and advanced the nomination on a 13-7 vote on June 16, 2016.[16]  However, Senate Majority Leader Mitch McConnell blocked all further action on the nomination, and it expired at the end of the 114th Congress.

After the election of Trump and the re-election of Johnson in 2016, Johnson and Baldwin renewed their 2013 deal for the recommendations for federal judicial vacancies.[17]  In March 2017, Brennan was contacted by the White House Counsel’s Office to gauge his interest in a federal judgeship.[18]  After interviewing with the White House Counsel’s Office and the Department of Justice in March 2017, Brennan applied to the Commission set up by Johnson and Baldwin.[19]  However, the Commission did not recommend Brennan (or any other applicant) due to the inability to secure five votes.[20]  Despite the lack of recommendation for Brennan (who secured votes from all three Republican Commissioners and one Democratic Commissioner), the White House submitted his nomination to the Senate on August 3, 2017.[21]

As Brennan had not been recommended by the Wisconsin Federal Judicial Commission, Baldwin has indicated that she is “troubled” by his nomination, and has not yet returned a blue slip enabling the Judiciary Committee to hold a hearing.[22]  Nevertheless, the Senate Judiciary Committee is moving to a hearing on January 24, 2018.

Political Activity

Brennan has a long history of contributions and volunteering for the Wisconsin Republican party.  Brennan has volunteered and held positions in the campaigns of several Republicans including Johnson, Gov. Scott Walker, Congressman James Sensenbrenner, and former Governor and Senate candidate Tommy Thompson.[23]  Brennan also served on the Finance Committee of the Wisconsin Republican Party for four years.[24]  Brennan has also contributed financially to Republican candidates, including $1500 to Johnson and $4000 to Thompson.[25]

Additionally, Brennan is connected closely with Walker, serving as the Chair of Walker’s Judicial Selection Advisory Committee.[26]  While he chaired the Committee, it drew criticism for relying heavily on partisan identification and contributions when selecting judges for the state court.[27]  Brennan is also the founding member of the Milwaukee chapter of the Federalist Society, a conservative legal organization advocating for an originalist and textualist interpretation of the Constitution.[28]

Legal Practice

Brennan’s first legal position after his clerkship was at Foley & Lardner as a litigation associate.  In this capacity, Brennan largely represented corporations in federal and state court.[29]  For example, Brennan represented Great-West Life Assurance Company in defending an action for ERISA benefits filed by a widowed plaintiff.[30]  However, Brennan also participated in some more political actions.  In a notable case, Brennan successfully challenged a Fond Du Lac ordinance regulating the sale of tobacco products, arguing that the ordinance was pre-empted by state regulations on tobacco distribution.[31]  In another case, Brennan represented the Wisconsin Republican party who sought to prevent the placement of white supremacist David Duke on the Republican primary ballot in Wisconsin.[32]

From 1997 to 1999, Brennan served as Assistant District Attorney at the Milwaukee County District Attorney’s Office.[33]  In that capacity, Brennan represented Milwaukee County District Attorney E. Michael McCann in defending a Wisconsin statute requiring doctors to tell victims of rape and incest that services are available that allow women to listen to the heartbeat or view images of their unborn child.[34]  The Seventh Circuit upheld the statute in a 2-1 vote.[35]

After stepping off the bench in 2008, Brennan has served as a partner at Gass Weber Mullins LLC.  In this capacity, Brennan handles a combination of commercial litigation, catastrophic injury cases, and mediation.[36]  Among the more significant matters he has handled, Brennan has represented numerous correctional institutions in defending against §1983 suits.[37]

Jurisprudence & Reversals

Brennan served as a judge on the Milwaukee County Circuit Court from 2000 to 2008.  During that time, Brennan handled civil, criminal, landlord-tenant, traffic, juvenile, and probate matters.[38]  Brennan ran for re-election in 2001 and 2007, being unopposed both times.

During his tenure on the state bench, Brennan established a fairly conservative record, including as a strict sentencing judge.  In one notable case, Brennan sentenced a defendant to 66 years in jail after he drove drunk and caused an accident killing four people and injuring two others.[39]  In another case, Brennan sentenced a defendant charged with reckless homicide to 35 years in prison and an additional 20 years of extended supervision.[40]  In another notable case, Brennan presided over the sentencing of four Democrats, including the son of Congresswoman Gwen Moore (D-WI), who had pleaded no contest to slashing the tires of Republican election vans.[41]  Despite prosecutors recommending no jail time, Brennan threw out the plea agreements and imposed sentences of four to six months.[42]

In one of his most widely reported cases, Brennan presided over the criminal trial of a school-bus driver, who was charged with physical and verbal abuse towards a student with disabilities.[43]  Part of the evidence against the driver was from a recorder placed by the student’s parents in his backpack.  Brennan declined to exclude the recorded evidence, holding that the statements were not barred by Wisconsin’s Electronic Surveillance Control Law.[44]  Brennan’s ruling was overturned by the Wisconsin Court of Appeals but ultimately affirmed by the Wisconsin Supreme Court.[45]

Reversals

Over his eight years on the state bench, Brennan has been reversed in approximately fifteen cases.  The majority of these cases involved criminal convictions or rulings against defendants being reversed.[46]  For example, State v. Haas involved a defendant convicted solely on the basis of eyewitness testimony implicating him in a burglary.[47]  The defense sought to bring in the clothing the defendant was arrested in to impeach the eyewitness’ testimony.[48]  However, the clothing had been destroyed by the police and the defendant was convicted.[49]  Brennan denied a motion for a new trial.  However, the Wisconsin Court of Appeals reversed, holding that the destroyed exculpatory evidence clearly required reversal.[50]   Similarly, in State v. Alicea, a police officer failed to comply with a pretrial ruling barring all references to a robbery accusation against the defendant.[51]  Brennan, who presided over the trial, declined to declare a mistrial or allow the defense to explain that the robbery accusation was untrue, instead instructing the jury to disregard the reference.[52]  The Court of Appeals reversed for a new trial, finding that the police officer’s improper reference to the robbery accusation had violated the defendant’s rights.[53]

Surprisingly, some cases in which Brennan’s rulings were reversed by appellate courts appear to have been omitted from his Senate Judiciary Questionnaire.[54]  Among these cases is one where Brennan ruled that a tenant whose hair dryer caused a fire which damaged her rental unit was liable for the damage even without any showing of negligence.[55]  In reversing, the Wisconsin Court of Appeals found that the lease provision dictating liability was invalid under Wisconsin law.[56]  In another case, a landlord sought to evict a deaf tenant for breaching his lease by assaulting another resident.[57]  Brennan rejected the tenant’s argument that he had not been given an opportunity to remedy the breach, holding that quasi-criminal breaches were non-remediable as a matter of law.[58]  The Wisconsin Court of Appeals reversed, noting that Brennan’s ruling “cited no case law to support these conclusions…ignored the procedure set out in the statute and ignored the fact that Greenfield stated in its five’day notice that Tannehill could remedy the breach by having no future contact with Pell.”[59]

Speeches and Writings

Brennan has frequently written on legal issues, including Wisconsin court rulings, judicial politics, and trial tactics.  Brennan’s writings suggest strong conservative underpinnings in his judicial philosophy and will likely draw support from Republican senators and concern from Democrats.

Judicial Activism

Brennan has frequently written on the subject of judicial activism.  In 2005, as a sitting state judge, he authored an article criticizing the Wisconsin Supreme Court for “activist” decisions.[60]  Brennan’s article sparked a response from federal judge Lynn Adelman, who called the charge of activism “a rhetorically charged shorthand for decisions the speaker disagrees with.”[61]

In an earlier article, Brennan took the opposing perspective, disagreeing with calls for judicial restraint on the part of conservative judges, noting that “justices and judges faced with activist legislatures are not required to roll over in the name of judicial restraint.  That would leave in place a one-way ratchet of constantly expanding government.”[62]

Judicial Nominations

In 2011, as Johnson was blocking the Nourse nomination, Brennan, then the Chair of Walker’s Judicial Selection Advisory Committee, wrote in support of Johnson’s actions.[63]  In the op-ed, joined by other attorneys including two current Wisconsin Supreme Court Justices (selected by Brennan’s committee), Brennan notes that Johnson, as an elected Wisconsin senator deserves to “participate in the selection of a judge for a Wisconsin seat” and that the Nourse nomination was moved “in disregard of a senator’s duty of ‘advice and consent’ under Article II Section II.”[64]

Expert Testimony

In early 2012, Brennan and his partner J. Ric Gass gave a presentation on the Daubert standard for expert witnesses and the selection of experts in the context of scientific testimony.[65]  In his notes for the presentation, Brennan focuses on the inherent unpredictability of scientific testimony, noting that “[s]cience is inherently changeable” and “[p]roblems with scientific accuracy have always been with us.”  As such, Brennan encourages attorneys to prepare their scientific expert witnesses well and to recognize possible weaknesses in their scientific opinions.

Overall Assessment

There are two arguments that can made against Brennan’s nomination: one based on process, and one based on substance.  The procedural argument against Brennan’s argument is essentially parallel to the argument he and Johnson laid out against Nourse’s elevation.  Essentially, Brennan’s nomination is moving without the consent of the duly elected senator from his home state.  Democrats can reasonably argue that, given their past willingness to defer to Johnson’s objections to Obama’s nominees, Baldwin deserves the same deference with regard to Brennan.

The substantive argument against Brennan has little to do with his legal ability.  Given his experience as both a trial judge and a complex litigator, Brennan is well-prepared to handle the intellectual rigors of the Seventh Circuit.  As such, the argument against Brennan will likely focus on his conservative ideology.

Specifically, critics may look to Brennan’s strongly conservative rulings as a judge, alongside his ideologically charged writings, and his role in reshaping Wisconsin’s state judiciary in a conservative direction, and argue that Brennan lacks the requisite impartiality to be a federal judge.  In response, supporters will likely argue that the vast majority of Brennan’s rulings have been affirmed by higher courts, and that conservatives should not be denied seats on the federal bench purely based on their ideology.

With a narrow Republican majority in the senate, Brennan remains more likely than not to be confirmed.  However, given the opposition of his home state senator and the Republicans’ narrow margin of error, the outcome is not set in stone.

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