February 14, 2018

Submitted Via Email:

The Honorable Charles Grassley, Chairman
United States Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Dianne Feinstein, Ranking Member
United States Senate Committee on the Judiciary
152 Dirksen Senate Office Building
Washington, DC 20510


Dear Chairman Grassley and Ranking Member Feinstein:

On behalf of the National Employment Lawyers Association (NELA), and its 4,000 circuit, state, and local affiliate members across the country, I write to express our strong opposition to further advancing the nomination of Michael Brennan to serve as circuit court judge on the U.S. Court of Appeals for the Seventh Circuit in Wisconsin.

NELA is the largest professional membership organization in the country comprised of lawyers who represent workers in labor, employment, and civil rights disputes. Founded in 1985, NELA advances employee rights and serves lawyers who advocate for equality and justice in the American workplace. Our members litigate on behalf of employees in every circuit, affording NELA a unique perspective on how employment cases, courts, and the judges who are entrusted with decision-making affect the lives of thousands of working people.

NELA, our members, and their clients take very seriously the role of the judiciary, and accordingly, the process by which federal judicial nominees are considered, and ultimately confirmed or not. Upholding the processes and traditions that have been established to ensure fairness and protect against partisanship in judicial confirmations is a cornerstone of a fair, impartial, and independent judiciary.

We were concerned on January 24, when Chair Grassley held a hearing for Michael Brennan over the objection of Mr. Brennan’s home-state Senator Tammy Baldwin who did not return her blue slip on Mr. Brennan. Not only was the objection of Senator Baldwin ignored, but Mr. Brennan’s nomination also did not get the requisite five-vote approval of the bipartisan Wisconsin Federal Nominating Commission, a Commission that has been functioning since 1979. The five-vote standard has been agreed upon by Senators Johnson and Baldwin. Throughout President Obama’s presidency, the blue slip tradition was adhered to by both Senator Leahy, the former Democratic Chair of the Committee, and Chair Grassley.

This Committee is entrusted with the responsibility to ensure that the core democratic principles of fairness and bipartisanship are upheld in the process of judicial confirmations. Discarding the processes and traditions that have allowed every home-state senator a voice in judicial nominations in his or her state diminishes the power of every United States senator, as well as that of the senator’s constituents. The blue slip tradition is critical to ensuring that the federal judiciary remain an independent branch of government and minimizes partisanship in the federal judiciary by helping to ensure that only well-qualified consensus nominees are confirmed to the lifetime appointments as federal judges. Indeed, Mr. Brennan himself recognized the importance of the blue slip when he supported Senator Johnson’s withholding his blue slip in 2011 for President Obama’s nominee for the very same seat he now seeks, writing, “[t]here are now two senators from Wisconsin from different political parties, so to exclude Johnson and those citizens who voted for him would be a purely partisan move.” [Emphasis added].

NELA strongly urges Chair Grassley and the Senate Judiciary Committee to adhere to Senator Grassley’s promise to maintain this important tradition and to not to move forward with its consideration of Michael Brennan.


James H. Kaster
NELA President


Terry O'Neill
Executive Director