Trump Nominee Brennan Pressed on Implicit Racial Bias

Jan. 24, 2018, 8:32 PM

Democratic senators expressed concern that a federal judicial nominee wouldn’t acknowledge implicit racial bias in the criminal justice system, at a Senate Judiciary Committee hearing Jan. 24.

Democrats also criticized Republicans for scheduling the hearing for Michael B. Brennan, whom President Donald Trump nominated to the U.S. Court of Appeals for the Seventh Circuit, despite the refusal of a home-state senator to return a “blue slip” approving Brennan.

The Trump administration has already seen 12 circuit nominees confirmed, setting a record for a president in his first year.

Trump announced a “tenth wave of judicial nominees” Jan. 23, including the nomination of John B. Nalbandian to the Sixth Circuit and several district court candidates.

Implicit Bias

Brennan served as a judge on the Milwaukee County Circuit Court for nine years and was also a prosecutor before becoming a partner at Gass Weber Mullins LLC, Milwaukee.

Senators Cory Booker (D-N.J.) and Kamala D. Harris (D-Calif.), both of whom were appointed to the committee this month and are its first black members since the 1990s, wondered if Brennan believed implicit bias affects the criminal justice system.

The “data and the evidence is profound” that it does, as Republican nominees, Democratic nominees, and “FBI leaders” have acknowledged, Booker said.

Brennan responded that he would be able to offer an opinion if he “could take a look at all those statistics and studies that” Booker had seen.

“And you haven’t?” Booker asked. “I find this astonishing” that Brennan was a “judge in the United States of America” yet hadn’t “looked at issues of race in sentencing,” Booker said.

Harris noted that at least half of Brennan’s cases would be in the criminal justice system.

During her career as a prosecutor and as California’s attorney general, Harris saw that law enforcement at the federal, state, and local levels “for years have been leading and certainly participating in a discussion about how we combat implicit bias” in the system, she said.

“So I’m really, really concerned about your qualifications in that area if you refuse to even acknowledge” such bias, she said.

Republican Sen. John Kennedy (R-La.) asked Brennan if he could agree that “unfortunately, for some people in this world, racism is part of the human condition.”

“Absolutely,” Brennan said.

Blue Slips

The blue slip tradition honors the Senators of a nominee’s home state by requiring approval from both and has existed for about a hundred years, Sen. Dianne Feinstein (D-Calif.), the committee’s ranking member, said.

Blue slip objections by Republican senators were always respected, she said.

Brennan is now the second nominee to receive a hearing despite a Democratic senator’s blue slip objection under Senate Judiciary Chairman Charles E. Grassley (R-Iowa), she said.

Grassley allowed Eighth Circuit nominee David Stras to get a hearing last year despite the refusal of then Sen. Al Franken (D-Minn.) to return a blue slip.

Sen. Tammy Baldwin (D-Wis.) objected to Brennan’s nomination and simply wanted her blue slip to “be respected in the same manner” as that withheld in 2011 by her Wisconsin colleague, Republican Senator Ron Johnson, Feinstein said.

Johnson objected to President Barack Obama’s nomination of Victoria Nourse to the same vacancy for which Brennan was nominated, causing Nourse not to get a hearing while Democratic Sen. Patrick Leahy of Vermont chaired the committee.

Brennan said that Johnson’s objection was different because he had just taken his seat as a senator and hadn’t had an opportunity to be involved in the nomination process.

Here, both Baldwin and Johnson had been a part of the process, having each appointed members of the state’s nominating commission that interviewed Brennan, the nominee said.

Grassley said allowing nominees to get a hearing despite a home state senator’s objection was consistent with the policy followed by 16 of the committee’s past 18 chairmen.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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