Oct

Right on Congressman

Cong. Jim Sensenbrenner is quite right to call out the nominating process by which defeated Justice Louis Butler was selected for the federal bench. Earlier this week, the White House announced its selection of Justice Butler for the open seat of Judge John Shabaz on the Western District of Wisconsin. Justice Butler was one of two names forwarded to the White House by Sens. Kohl and Feingold after the Wisconsin Judicial Nominating Commission had given the senators four names.

Congressman Sensenbrenner, a former chairman of the House Judiciary Committee, put out a sharply worded statement after the nomination of Justice Butler was announced:

“I’m disappointed in the process the Obama Administration and Wisconsin’s two Senators took in the nomination of Louis B. Butler to serve as U.S. District Judge for the Western District of Wisconsin. Under the Bush administration, we showed great care and concern for these appointments and worked on them in a bipartisan way.
“Senator Kohl and Senator Feingold sent this nomination to the White House with no input from individuals on the other side of the aisle.
“The fact of the matter is that Mr. Butler lost a state-wide election, held by the people of Wisconsin, to continue serving on Wisconsin’s Supreme Court. Now, the man who was voted off the bench in Wisconsin is being given a promotion, a lifetime appointment and a pay raise. This is another example of the mismanaged way Washington is working under President Obama. The people of Wisconsin deserve better.”

We’ve been on the “Louis Butler is a Liberal” kick for a while here at GOP3, and we were quite happy to see Michael Gableman win that race. We also pointed out when the Commission was convened that it consisted of “10 Democrats and 1 Neutral,” contrary to the promises of bipartisanship offered in the past by Sens. Kohl and Feingold.

Senators Feingold and Kohl have now fired back. Sen. Kohl said that they had “follow[ed] the 30 year-old guidelines established by the Wisconsin Federal Nominating Commission Charter to fill judicial vacancies.” Similarly, Sen. Feingold said, “The current makeup of the Wisconsin Federal Nominating Commission follows the same rules that have been in effect for decades.” Both of them are correct in saying this. HOWEVER, those rules are no guarantee of a bipartisan judicial selection process, which is what they have previously promised.

When the President and both United States Senators are from the same party, then there is no provision in the charter for any representation of the other political party. The State Bar of Wisconsin also gets two picks for commission members – currently both are Democrat donors. So to say that this Commission followed the process laid out in the Charter is to ignore that the Charter does not guarantee a bipartisan process, even though the Senators have often promised a bipartisan process. Perhaps it is time to amend the charter to include both parties regardless of how the particular political slots of the day are allotted.

(For a general history of this process, see Annie L. Owens, “ALL POLITICS IS LOCAL”: THE POLITICS OF MERIT-BASED FEDERAL JUDICIAL SELECTION IN WISCONSIN, 88 Marq. L. Rev. 1031 (2005)).

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