It's Time to Fix Wisconsin's Federal Judicial
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COUP IN THE COURT IT’S TIME TO FIX WISCONSIN’S FEDERAL JUDICIAL- SELECTION PROCESS MICHAEL E. HARTMANN s part of their Committee if they Constitutional approve of a nomi- A“advice-and- nation in their home consent” role, any sin- state being advanced gle one of the 100 to the hearing stage. members of the United One withheld blue States Senate — slip from a nomi- including Wisconsin’s nee’s home-state two current members, senator seriously Democrats Herb Kohl impedes a nomina- and Russ Feingold — tion; two effectively can vote either for or kill it. against anyone nomi- While not con- nated to be a federal templated in the judge by any presi- Constitution, “blue dent, including the slips” and “blue- current one, slipping” have Republican George W. become a well-prac- Bush. Any of the nine- ticed —albeit oft teen members of the overly and sometimes overtly political — part U.S. Senate’s Committee on the Judiciary, more- of the same selection process. over — again including Senators Kohl and Feingold — can easily investigate, interview, Now, however, Wisconsin’s two senators derail, defend, and/or vote either for or against have added a new wrinkle to the process, man- any federal judicial nominees at that level, aging to amass more power to themselves, lim- before a nomination would even reach the iting the president’s options, and short-circuit- Senate floor. ing a process they themselves created. All of this is part of the normal, accepted, In June 1995, Kohl and Feingold signed an institutional process of filling federal judge- amended charter pledging to continue to use a ships. nonpartisan commission to give them merit- based advice about candidates for vacancies in As well, any senator has the right to “blue- the state’s federal courts and its two U.S. slip” nominations to federal judgeships in his Attorney positions, along with certain vacan- or her own home state that are made by any cies on the Seventh Circuit U.S. Court of president. That’s “blue-slip” as a verb, and it’s Appeals. This Wisconsin Federal Nominating used as such by the Senators and Senate- watchers. “Blue slips” as nouns are the forms Michael E. Hartmann is an attorney and the assistant director for program at The Lynde and Harry Bradley that Senators submit to the Judiciary Foundation in Milwaukee. Wisconsin Interest 21 Commission was first used by Wisconsin’s not mentioned or even contemplated in the senators in 1979. Its responsibility is to consid- charter they signed in 1995. er all applications for these jobs and to recom- After the interviews, without any public mend between four and six individuals for explanation whatsoever (at this writing), Kohl each vacancy. These names are then forwarded and Feingold struck two people from the list. by the senators to the White House as accept- Although they claim to be advocates of open- able to them. According to initial research by ness in government, they privately eliminated the American Judicature Society in Chicago, the person generally considered the most-qual- only seven other states have even roughly sim- ified candidate, Wisconsin Supreme Court ilar commission mechanisms — California, Justice N. Patrick Crooks, and Milwaukee Colorado, Massachusetts, Oklahoma, County Circuit Judge Elsa Lamelas, the only Pennsylvania, Texas, and Washington. woman and the only minority on the list. The senators’ implicit promises are always Feingold reportedly conducted his interviews that, if appointed by the President, none of the at his office in the federal building in down- names on their commission’s list will be “blue- town Milwaukee, and Kohl reportedly con- slipped.” ducted his in the coffee shop at the Pfister hotel. After the tony, crème-colored bills with Given the Wisconsin commission’s actual which diners are presented when done there, makeup, its effect has become to provide Kohl we’ll call Crooks and Lamelas — the two com- and Feingold with yet another, low-profile mission-recommended, senator-rejected candi- opportunity to deny the nomination of those dates — “crème-slipped.” either politically or ideologically undesirable to them. Since presumably prepared and print- What Happened ed on nice white bond paper, let’s just call their The Kohl/Feingold commission has a total charter and the commission it created — if of eleven members — six of them liberal and used this way — a de facto “white slip.” five of them conservative. Of the liberals, two Again, this is only part of the process in are appointed by Kohl (attorneys Stephen eight states. Glynn and James Hall, Jr., of Milwaukee), two are appointed by Feingold (attorneys Charles In 2001, for the first time since the commis- Curtis of Madison and Greg Conway of Green sion’s creation, neither of Wisconsin’s senators Bay), and one is appointed by the State Bar of belonged to the same political party as the Wisconsin (Milwaukee attorney James President. Of the other seven states with judi- Brennan). cial screening commissions, only California, Massachusetts, and Washington have two Of the conservatives, four are appointed Democratic senators. by U.S. Representative F. James Sensenbrenner of Menomonee Falls, the state’s senior Further complicating the nomination Republican in Congress who also happens to process is the one-vote margin Democratic be chairman of the House of Representatives’ control of the U.S. Senate. Each nomination Judiciary Committee, (former U.S. thus becomes a delicate balancing of the power Representative Mark Neumann of Hartland, of President Bush and the Democratic Senate attorney William Curran of Mauston, and majority. attorneys Rick Graber and John Savage of Last fall saw the first test of the new align- Milwaukee), and one is appointed by the State ment. After the Wisconsin Federal Nominating Bar (attorney John Knuteson of Racine). Commission recommended five names to them The chairman of the commission, when it’s for a new Green Bay-based federal judgeship making recommendations for positions in the created by Congress, Kohl and Feingold decid- Eastern District, is the dean of Marquette ed each to interview separately the recom- University’s law school. (When making recom- mendees by themselves, a part of the process 22 Winter 2002 mendations for Western District jobs, it’s the Lamelas was also “crème-slipped.” A dean of the University of Wisconsin Law judge since 1993 and a federal prosecutor for School.) Marquette’s dean is the highly ten years before that, Lamelas is smart and respected Howard Eisenberg. He’s a liberal, personable. As a Hispanic female (she is of making it a 6-5 liberal-majority commission. Cuban descent), Lamelas would have been an especially appealing candidate for a Bush The commission itself, which is staffed by White House anxious to build ties with the the State Bar, had already pared down eigh- nation’s growing Hispanic electorate. But per- teen applicants to ten for interviews. Of the ten haps Lamelas’ attraction as a “diversity” can- interviewees, five were recommended by the didate made her objectionable to the commission (with Conway not participating). Democratic senators. Other Hispanic nominees In addition to Justice Crooks and Judge of a conservative hue have similarly lan- Lamelas, they were Brown County Circuit guished in the Senate. Voting against or “blue- Judge William Griesbach, Green Bay attorney slipping” a minority woman, however, had Thomas Schober, and Outagamie County obvious political downsides for Kohl and Circuit Judge Joseph Troy. Feingold, who chose instead to veto her quiet- With the best judicial ly, without awkward credentials, Crooks was public debate, publicity, considered the heavy Voting against … a or explanations. (Another favorite for the $145,100- person’s name was also per-year position and his minority woman … had removed from the list of removal shocked even obvious political down- recommended candidates some Democrats. A for- to be U.S. Attorney for mer Brown County sides for Kohl and the Eastern District.) Circuit Court judge, he is After Crooks and known as smart and Feingold, who chose Lamelas were crossed off savvy, and he is political- the commission’s list, the ly well-connected — instead to veto her qui- remaining three names including to Republican were submitted on U.S. Health and Human etly, without awkward November 16 to the White Services Secretary and public debate. House. Sensenbrenner former Governor Tommy publicly co-submitted the Thompson and Green smaller list along with the Bay’s U.S. Representative Senators, though protested its paring. Mark Green, who fought with Kohl for the new judgeship’s very creation. According to a statement released that day by Sensenbrenner, The front-running Crooks was a finalist for federal judgeships in Milwaukee in both 1986 Although I believe everyone on the list sent and 1991. He ran unsuccessfully for the to President Bush to be good candidates Wisconsin Supreme Court in 1995, losing to who are qualified for their respective posi- Justice Ann Walsh Bradley, but then won the tions, the Senators’ actions have resulted in a pared down list. This has the effect of seat he now holds the next year, beating state reducing the President’s options for filling appellate-court Judge Ralph Adam Fine. For these positions — even though these this seat, of course, Crooks was chosen by the appointments are to be filled by President same statewide electorate that gave Kohl and Bush and not by Senators Kohl, Feingold, Feingold their jobs. The only real potential or myself. drawback to a Crooks’ appointment had been “I am pleased with the results of the considered his age, 62. Commission,” he then pointedly noted, “and I Wisconsin Interest 23 support and commend the members of the Given that which has occurred, Commission for their hard work and commit- Sensenbrenner should just plain old refuse to ment to our state.” participate any further in the Kohl/Feingold commission’s process to select acceptable fed- Seemingly slightly more steamed that eral judicial nominees, including to replace Crooks and Lamelas were “crème-slipped,” Coffey.