Tomorrow morning at 9:00 am CST, Judge Michael Brennan, President Donald Trump’s nominee for the Seventh Circuit Court of Appeals, will testify before the Senate Judiciary Committee. While I’m hoping to be pleasantly surprised, I suspect that you can expect the normal confirmation hearing antics. To paraphrase the great legal philosopher Oscar Hammerstein, fish got to swim, birds got to fly and politicians got to pander.
Let me unpack what you’re likely to hear.
The Seventh Circuit handles appeals from the federal trial courts in Wisconsin, Illinois and Indiana. While our federal appellate judges are not household names, they have had a significant impact on important issues ranging from the president’s proposed travel ban to environmental rules, labor issues and our civil liberties. The Supreme Court reviews very few of these decisions. What they do matters.
But they must follow precedent established by the United States Supreme Court. The Seventh Circuit may face unresolved questions or be charged with deciding just how the law applies to a new situation but then it may not ignore what the Supreme Court has said on a subject. Therefore, a nominee’s grander musings on the law, while certainly relevant, are not something that he or she will be able to freely implement.
As to those musings, it is important to remember that we are talking about law and not politics. Senators have this way of asking judicial nominees whether they will act in ways that advance certain political objectives. Will they help the middle class? Advance the interests of minorities? Be tough on crime? These are the wrong questions.
Policy is made by our elected officials. Courts exist to ensure that it is made in a way that is consistent with our highest law – the Constitution – and to determine that the law is being applied as enacted. To repeat the famous quote from Chief Justice John Roberts, judges call balls and strikes, they don’t make the rules or play the game.
Many have criticized the Roberts analogy because interpreting and applying the law is far more complicated than calling balls and strikes. Still, he’s essentially right and I like to illustrate the story with one I heard from another lawyer. Think of three umpires. When asked how they call balls and strikes, the first says that he calls them as they are. The second, a bit humbler, explains that he calls them as he sees them. The third responds, with a sly grin, that they are nothing until I call them.
When it comes to judges, we want that second umpire. We want someone who believes that there is a strike zone and, as difficult as calling balls and strikes may be, that’s all he’s there to do.
And that’s Michael Brennan.
There are two things to keep in mind when reviewing a judicial candidate. The first is his or her experience and capabilities as a lawyer. The breadth of Brennan’s experience is unusual. He has been in private practice, having worked at two of Milwaukee’s finest law firms. But he also has experience in criminal law. As an assistant district attorney in Milwaukee County, he prosecuted felony and misdemeanor cases and lead the prosecution’s efforts in approximately 50 trials. And he has served on the bench. As a Milwaukee Circuit Court judge, he presided over nearly 300 trials. In 2005, he was affirmed by higher courts more than any other judge in the state. This trifecta of experience — civil law, criminal law prosecutor and judge — is unusual.
Not surprisingly, Brennan has been recognized by the American Bar Association as “well qualified” for this nomination, the highest rating awarded by the ABA. On a personal note, I have known Judge Brennan for 25 years. I have never heard anyone question his legal capabilities. He is a thoughtful and thorough lawyer.
We also want judges who understand and respect the rule of law who do not regard it, in the astonishing words of one our current Supreme Court candidates, as “garbage.” Judge Brennan once told me something that the role of a judge involves “self-abnegation.” It involves following the law and not one’s personal preferences. Out of the courtroom, Judge Brennan has been a staunch advocate of “originalism” – the idea that the Constitution should be read to mean what those who adopted it would have understood it to mean. This is not an easy task and it does not mean the old principles cannot be applied to new circumstances or that new constitutional language such as the 14th Amendment’s equal protection clause should be ignored. But what originalism does do is root the courts in law and not politics. It is a way of affirming that there is a strike zone. As I noted in a column last year, “By attempting to discern what the people who adopted a constitutional provision understood it to mean, judges seek to limit themselves to those constitutional restraints on democracy that ‘We the People’ actually adopted.” This is what separates judges from legislators
So Senators may bang on about his politics or, as they did with another recent nominee, his religion. They may (falsely and unfairly) excoriate the Federalist Society as the Opus Dei of the legal profession – or at least what they imagine (falsely and unfairly) Opus Dei to be. None of it matters. Judge Brennan will not change the legal strike zone regardless of who is on the mound.