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“Wait! You didn’t see that you were being set up on the second win?”


Pursuant to my article earlier today, here’s an example of exactly what the Democrats should not have been doing:

The Senate voted Thursday to confirm Michael Brennan to a lifetime seat on the U.S. Court of Appeals for the 7th Circuit ― a vacancy that Republicans prevented President Barack Obama from filling for six years.

The vote, 49 to 46, was entirely partisan.

Until now, the seat was the nation’s longest circuit court vacancy. It was empty since January 2010, and it had been up to Wisconsin’s two senators to work with the White House to fill it. The reason it went unfilled for so long largely came down to one person: Sen. Ron Johnson (R-Wis.).

Obama nominated Victoria Nourse to the seat in July 2010. Johnson denied her a confirmation hearing for all of 2011 by refusing to turn in his so-called blue slip, a Senate tradition whereby home-state senators have the ability to stop or advance a judicial nominee in the Judiciary Committee. Nourse withdrew her nomination in early 2012, calling the system “broken.”


After years of denying votes to Obama’s judicial picks, McConnell is now aggressively moving forward with filling those empty court seats with young, conservative, lifetime judges. Trump has been nominating people at record-breaking levels, and many of his picks have records of being anti-LGBTQ rights, anti-abortion rights or anti-voting rights.

“This is my top priority in the Senate,” McConnell told conservative radio show host Hugh Hewitt last week. “By appointing and confirming these strict constructionists to the courts who are in their late 40s or early 50s … I believe we’re making a generational change in the country.”

Brennan’s confirmation is rich with irony. He wrote an editorial endorsing the blue slip process in 2011 after Johnson refused to return his blue slip for Nourse. He didn’t earn the support of Wisconsin’s judicial nominating commission.

And the same Republicans who used blue slips to deny Obama the seat have now ignored the tradition of blue slips to help Trump fill it. Baldwin never turned in her blue slip in for Brennan, but Sen. Chuck Grassley (R-Iowa), the chairman, gave him a hearing anyway and Republicans sent his nomination to the Senate floor.

Democrats have fumed about the hypocrisy surrounding this court seat. Some already opposed Brennan, a 57-year-old Milwaukee lawyer, on his merits. Among other things, Brennan has discounted the concept of the “the glass ceiling” being real, and raised some eyebrows in his confirmation hearing when he couldn’t say if racial bias exists in the criminal justice system.

“How is Sen. Baldwin’s right to consult on judges for her state any less important than Sen. Johnson’s?” Senate Minority Leader Chuck Schumer (D-N.Y.) said Wednesday on the Senate floor. “It’s mind-bending hypocrisy. It’s an appalling double standard.”

I mean, Chuck, it sure is! But who could possibly have expected anything different? McConnell is what he’s always been.

Trying to unilaterally restore the blue slip norm after Orrin Hatch blew it up was exactly the kind of sucker’s bet Democrats should not have made. And it’s particularly egregious in this case; eliminating the blue slip isn’t an an unsustainable, damaging equilibrium like court-packing. It was absolutely inevitable that McConnell would fully abandon the rule, and Lehay et al. left him a lot of extra vacancies by foolishly trying to put Humpty Dumpty together again. And while people seem to think that crying “hypocrisy!” is a devastating response, it pretty much never is.

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