In the News: Blog

By Senator Ron Johnson

When it comes to judicial nominations, President Barack Obama and Senate Democrats are fond of reminding Republicans that elections have consequences. Apparently, they forgot that fact themselves after the 2010 midterm elections. Voters in Wisconsin went to the polls last November and rejected Obama's attempt to fundamentally transform America into the land of big government.

In doing so, they gave me the very high honor of representing them in the United States Senate. Unlike Obama and the Senate Democrats, I respect the will of Wisconsin's voters. That is why I have not submitted my blue slip to the Senate Judiciary Committee regarding the judicial nominations of Louis Butler and Victoria Nourse.

Under the rules of the Senate, all nominations not approved by the end of each Congress expire. That is exactly what happened with the Butler and Nourse nominations. Obama made both nominations during the 111th Congress, and the Democrat-controlled Senate failed to confirm them before adjourning.

So, those nominations no longer existed when I took office. Instead, Obama announced new nominations for Nourse and Butler on Jan. 5 - the day I was sworn in.

To understand the problem with these new nominations, we need to understand the constitutional role of senators in judicial nominations. The Constitution grants the president the power to nominate federal judges "by and with the Advice and Consent of the Senate." That means the voters of Wisconsin are entitled to a say in who the president nominates to judicial vacancies in the state.

And, because elections have consequences, the voters who chose a Republican senator were entitled to have their senator consulted as well. Although Obama may have consulted Sen. Herb Kohl, a Democrat, he chose not to respect the rights of many Wisconsin voters when he dumped the Nourse and Butler nominations on my desk on my first day on the job.

In fact, the White House chose not to contact me until May 10 - months after sending the nominations to the Senate. Had I been consulted, I would have expressed the concerns about these nominees that Wisconsin voters have expressed to me.

There's nothing unusual about a senator registering objection by holding onto a nominee's blue slip. In 2008, for example, both Kohl and then-Sen. Russ Feingold killed the nomination of Timothy Dugan by delaying return of their blue slips.

In the same year, both senators refused to endorse the nomination of Mac Davis, even though he was recommended by the commission that they created. In Nourse's case, for some reason, both Kohl and Feingold held onto her blue slip for two weeks - even though she, too, went through their commission.

I have heard a number of concerns about the nomination of Butler. On two separate occasions, Butler was rejected by the voters of Wisconsin as a candidate for the Wisconsin Supreme Court. The wisdom of the voters was shown after Gov. Jim Doyle appointed Butler to the court in 2004. As a member of the court, Butler demonstrated himself to be a judicial activist with little regard for the rule of law.

In my opinion, it goes without saying that Obama did not show proper respect for the people of Wisconsin in attempting to hand an unaccountable, life-tenured position to an activist judge twice rejected by the voters.

Wisconsin voters also have expressed a number of concerns with Nourse's nomination to the 7th Circuit U.S. Court of Appeals.For starters, seats on the Circuit Court are allotted among the states in that circuit so there will be judges on the bench with experience actually practicing law in each state's system. Nourse simply does not fit the bill.

Nourse was not even licensed to practice law in Wisconsin until Dec. 7, 2010, almost six months after Obama first nominated her. It is true she has been a professor at the University of Wisconsin Law School since 1993, but she has spent a third of that time teaching elsewhere. Most important, she has been a visiting professor outside of Wisconsin since 2008, teaching first at Emory University in Atlanta and then at Georgetown University in Washington, D.C.

But there is an even more important question surrounding Nourse's nomination. Obama first nominated her on July 14, 2010, before I was even elected to the Senate. Nonetheless, the Democrat-controlled Senate Judiciary Committee never held a hearing on her nomination and Senate Democrats never attempted to schedule a vote on it.

Many voters in Wisconsin have been asking why the Democrats chose not to advance Nourse's nomination when they controlled a nearly filibuster-proof majority in the Senate. Kohl was on the Senate Judiciary Committee; I was not. Perhaps that question would be best directed at Sen. Kohl.

Ron Johnson, a Republican, is Wisconsin's junior U.S. senator.

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