Wisconsin Senator Ron Johnson is once again playing politics with the nation's oldest appellate court vacancy. This time, he's changing the rules when they don't work for him, violating an agreement he previously made with fellow senator Tammy Baldwin. His latest efforts to delay filling a five year-old vacancy on the Seventh Circuit are absurd and should simply be ignored by the White House.
Here's the background: Since taking office in 2011, Johnson has been anything but cooperative. He set the tone just five days into his term, when he expressed opposition to nominee Victoria Nourse as well as district court nominee Louis Butler because he had not been consulted in advance on their nominations, both of which had occurred before he was even elected.
He also demanded changes in how Wisconsin's senators identify potential judges to recommend to the White House. For decades, senators had used a Federal Nominating Commission comprised of members selected by the senators. Consistent with practice in other states when one senator is not of the president's party, and regardless of whether the president at the moment happened to be a Democrat or a Republican, a Wisconsin senator of the president's party chose more commission members than the other senator. But Johnson refused to go forward unless he could name as many members as Baldwin, a demand Baldwin agreed to in 2013 in an effort to get the long-stalled process moving after years of inaction.
Under their agreement, each senator would name three commissioners. But to make sure he could keep the Seventh Circuit seat vacant for as long as possible, Johnson ensured that the commission not address that vacancy until it first made recommendations for two district court vacancies. Slowing the process even further, the commission was not allowed to work on the second district court vacancy until the president made a nomination for the first one. This meant that it was not permitted to even start looking for potential Seventh Circuit judges until last summer, 15 months after its formation.
The White House, consistent with its practice of extensive outreach to senators of both parties on judicial nominees, opted to cooperate with this effort. Although presidents generally give home-state senators substantial influence in selecting district court judges, senators usually play a much smaller role in filling circuit court seats. Nevertheless, even with the substantial delay built into the system, President Obama gave Johnson the benefit of the doubt and chose to hold off on a Seventh Circuit nomination until the Wisconsin senators could receive and act on the recommendations of the nominating commission.
But that effort failed. The Commission's charter required it to recommend no fewer than four and no more than six potential nominees to the senators within 75 days of the application deadline. If it couldn't do that, the senators could grant it a one-time 30-day extension. By the end of last year, it was clear that – under the charter that Johnson agreed to – the commission could not make any recommendations.
With the process that the senators asked the president to wait for completely broken down, the White House can make its nomination knowing that they've done all they can do to give the senators input.
Earlier this month, Sen. Baldwin sent the White House the names of the eight people who had advanced as far as the interview stage with the commission. She didn't express support or opposition for any of them. But with the commission process having failed under its own terms, Baldwin acted to make sure the White House could exercise its constitutional prerogative to move forward on the nomination with at least some useful information.
Johnson's response has been interesting. A couple of weeks ago, Johnson said the whole committee process should start again. Then late last week, he released a statement suggesting the White House should consider two of the applicants (those who had the support of five of the six commissioners). He accused Baldwin of a "unilateral breach of a successful agreement," although it is hard to describe an agreement as "successful" when it has undeniably failed under its own charter to make recommendations to the senators. He also claims that "[f]illing vacancies for federal judges in a particular state is the prerogative of the U.S. senators of that state," glossing over the distinction between circuit and district court nominations.
In his statement, Johnson claims he never wanted the commission charter to require a minimum number of circuit court recommendations. So now he is just ignoring the part of his agreement he negotiated that he didn't like. That turns the "give and take" of negotiating an agreement into a "take and take," which summarizes Johnson's actions relating to judicial nominations since he took office.
It isn't just Johnson's own history that provides context for recognizing the motivations behind his current actions. The past few weeks have seen plenty of examples of Republican senators trying to keep circuit court vacancies open for as long as possible rather than let President Obama fill them. Pennsylvania's Pat Toomey blocked committee consideration of Third Circuit nominee Phil Restrepo for half a year, until the local press coverage became too much for him to bear. In Indiana, Republican Senator Dan Coats this month called for the creation of a nominating commission to fill an Indiana slot on the Seventh Circuit. This came as a surprise to Democratic Senator Joe Donnelly, who noted that he's been working on identifying potential nominees for over a year consistent with an agreement he and Coats had reached. Of course, up-ending that agreement and moving to a commission process would create so much delay that it would likely be up to the next president to fill the vacancy, a president that Coats hopes will be a Republican.
But back to Wisconsin, where it is long past time to fill a vacancy that has been open for more than five years. Both President Obama and Senator Baldwin have gone to incredible lengths to accommodate Ron Johnson. Now that the system that he demanded and agreed to has fallen apart, it's time he got out of the way. If he has objections to whoever the president nominates, the proper place to air them will be at a Judiciary Committee hearing.