Cooperation only goes so far with Sen. Tammy Baldwin
Originally published here in the Milwaukee Journal Sentinel on March 12, 2016.
I'm proud of how Sen. Tammy Baldwin and I worked together, at least for a while, to fill judicial vacancies on Wisconsin's federal courts. That kind of cooperation is what voters have a right to expect, and I've pursued it in good faith every step of the way.
The history of how our cooperative effort was derailed provides valuable insight into why filling the current Supreme Court vacancy has become so highly politicized.
In January 2009, President Barack Obama was sworn into office with Democrats controlling the House of Representatives and enjoying a filibuster-proof majority of 60 in the Senate. That same month, a vacancy opened on the federal district court for Wisconsin's Western District. It took Obama eight months to nominate Louis Butler to fill it — a judge who had twice been rejected by Wisconsin voters.
In January 2010, a vacancy opened for Wisconsin's seat on the Seventh Circuit Court of Appeals. Six months later, Obama nominated Victoria Nourse, a former Senate aide to Joe Biden with no judicial experience and little connection to Wisconsin.
All that time, Senators Russ Feingold and Herb Kohl were members of the Democrats' filibuster-proof majority. They could easily have filled both those vacancies, but they failed to do so. Those two nominations died when the 111th Congress ended.
Only days into the 112th Congress, Obama renominated Butler and Nourse without consulting or receiving input from Wisconsin's new senator — me. By asking me to approve these two holdovers, the administration completely disrespected the voters who elected me. Those Wisconsin voters deserved a voice, so I did not release the holdovers for consideration by the Judiciary Committee.
But I did immediately reach out in good faith to Kohl to establish a judicial nominating commission with equal representation from each senator. For two years, he steadfastly refused to accept a fair nomination process, so those vacancies remained open.
Baldwin replaced Kohl, and, to her credit, she accepted a fair process, agreeing to a judicial nominating commission with three representatives appointed by each senator. Nominees would need support from at least five of the six commissioners. The bipartisan compact worked beautifully, filling the Western District vacancy as well as a vacancy that opened on Wisconsin's Eastern Federal District Court.
Our commissioners then began working on the appeals court vacancy. We worked on this last because it was not a judicial emergency and we knew there would be a smaller pool of applicants. Because of the smaller pool, our commissioners were unable to agree on the minimum required number of candidates — four.
I offered to waive the four-candidate requirement and consider the two who had received at least five votes from commissioners. Baldwin refused this accommodation and instead breached the compact, violated the confidentiality of the process and submitted all eight candidates who had been interviewed by our commissioners. She sent the White House applicants who received only one or two votes, and one who failed to receive any vote, even from her own commissioners.
She blew up this process on May 8, 2015 — only six days before former Sen. Russ Feingold announced his candidacy. Mere coincidence? I doubt it. Immediately after Baldwin stopped our cooperative process, liberal writers began a well-coordinated attack, accusing me of obstructing the nominating process.
I immediately contacted the White House to say I would consider the two candidates who had received at least five votes from Wisconsin's judicial commission. The White House waited eight months, until Jan. 12, 2016, to nominate Don Schott. By all accounts, Schott is a well-respected and well-qualified attorney — but with no experience as a judge. He has made political contributions to Feingold and Baldwin and to Obama.
I have interviewed Schott and reviewed his FBI file. He comes highly recommended as a person of integrity, and I have "signed the blue slip" to recommend that the Judiciary Committee consider him.
Baldwin's partisan decision to blow up our bipartisan process, and the White House's foot-dragging have put Schott's nomination in jeopardy. Throw in the politics that have unnecessarily erupted over the Supreme Court vacancy, and the outcome is impossible to predict.
I also have recommended to the White House that Obama should nominate the other qualified candidate, Richard Sankovitz, to fill the vacancy that recently opened on the Eastern District Court. I sincerely hope the president accepts my recommendation.
I do not control the process for either the appeals court or Supreme Court vacancies. Those decisions are under the jurisdiction of the Senate Judiciary Committee. According to the Constitution, the president nominates and appoints justices with the "advice and consent" of the Senate as a co-equal branch of government.
The advice of the Senate Republican majority is to let the American people decide the composition of the Supreme Court. Instead of a lame duck president and Senate nominating and confirming, a new president and Senate — elected by the people only a few months from now — should make that important decision. I can't think of a fairer or more democratic process.