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Today Senators Herb Kohl and Russ Feingold released the names of the candidates they were forwarding on to the White House for consideration to fill the spot of retiring Judge Rudolph Randa of the Eastern District of Wisconsin federal court. Today the Senators punished a candidate for openly holding a judicial philosophy faithful to the Constitution, a philosophy different than their own.

The Senators set up the Federal Nominating Commission. They charged the Commission, which is bipartisan, with screening candidates for judicial vacancies. The commission recommended six people to the Senators, who in turn make a recommendation to the President. The six candidates, the commission concluded, were well-qualified for the position.

But the Senators only passed four names on to the White House. They struck the names of Judge Michael Brennan and Judge Gerald Ptacek. I am not familiar with Judge Ptacek. He may have removed himself from consideration, or he may have been struck. If it was the latter case, I’d like to know why. On the surface, he seemed qualified. But in the case of Judge Brennan, those familiar with the facts recognize this was an act of blatant partisanship.

Michael Brennan received his BA from Notre Dame (1986) and his JD from Northwestern (1989), where he was an editor of the Northwestern Law Review and Miner Moot Court champion. He served two years as a law clerk to Hon. Robert W. Warren of the Eastern District of Wisconsin, and two years as a law clerk to Hon. Daniel A. Manion of the United States Court of Appeals for the Seventh Circuit. He started his career as an Assistant DA here in Milwaukee County. He was a litigation associate at Foley & Lardner, then served as Staff Counsel to the Wisconsin Criminal Penalties Study Committee.

In January 2000, Governor Tommy Thompson appointed him to the Milwaukee County Circuit Court, a position to which the voters have since elected him twice. According to data collected by the WI Law Journal, in 2005 he was the circuit court judge with the best record in the state on review before the Court of Appeals, a perfect 24 and 0.

He is also a respected scholar, with published articles and essays in the Northwestern Law Review, Marquette Law Review, Wisconsin Lawyer, Illinois Bar Journal, the Milwaukee Journal Sentinel, and ENGAGE: The Journal of the Federalist Society’s Practice Groups. These articles, in turn, have been cited in such journals as the Illinois and Minnesota Law Reviews and the Georgetown Journal of Legal Ethics. He was selected to give the annual Chief Justice Warren E. Burger Memorial Lecture at the William Mitchell College of Law in 2003.

It is entirely legitimate to ask, then, what Senators Kohl and Feingold found so objectionable. Judge Brennan is a respected and experienced judge. Before that, he was involved in both criminal and civil litigation. He is a thoughtful scholar of the law. His clerkships and publications show he is an accomplished intellect. The Journal Sentinel tagged him as the “favorite” for the seat when Randa’s retirement was first announced. What, then, would cause the Senators to strike his name from the Commission’s recommendations?

I fear the answer is both simple and straightforward. He is a judicial conservative and an intellectual conservative.

He is a former co-chair of the Milwaukee Chapter of the Federalist Society, and currently serves on the chapter’s Board of Advisors. His article in the Milwaukee Journal Sentinel was critical of judicial activism on the Wisconsin Supreme Court. He has received praise from conservative bloggers. He sentenced the Democrat tire-slashers to prison after they sabotaged GOP get out the vote efforts on Election Day 2004. This was perhaps his greatest offense - sentencing Gwen Moore’s son to jail for four months for breaking the law.

Senator Feingold was able to set aside ideological differences to vote for Attorney General John Ashcroft’s nomination. Both Senators Kohl and Feingold supported John Roberts’ confirmation to the US Supreme Court. They recognized that honest differences about important issues does not make someone unqualified for the bench. They recognized that the voters picked the President, and the President gets to pick his nominees. Judge Brennan is neither unfit or unqualified, as his biography shows and the Nominating Commission’s recommendation confirmed. For the Senators to strike his name from the list was a pure act of partisanship: they didn’t want a clear conservative to get a lifetime appointment to Milwaukee’s federal bench. It is very disappointing that they did so.

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