WASHINGTON – Republican Sen. Ron Johnson’s opposition to one of President Joe Biden’s nominees surprised Democrats on Wednesday and presented a fresh test to a tradition that over the years has allowed individual senators to block the confirmation of judges from their home states.
William S. Pocan, a trial court judge in Milwaukee County, was scheduled to testify Wednesday at his confirmation hearing before the Senate Judiciary Committee. But those plans were scuttled after Johnson said he could not support Pocan and he looked forward to working with Biden on finding a suitable replacement.
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It has been the committee’s longstanding practice not to proceed with hearings on district court nominees until both home state senators have returned a “blue slip” that signals the Senate can move forward. The practice is designed to generate consultation between the executive branch and the Senate on judicial nominees.
Republicans scaled back that practice for appellate court judges during the presidency of Donald Trump, infuriating Democrats. But they continued the practice for district court judges. The question now is whether Democrats will disregard Johnson' opposition to the Pocan nomination and proceed, a move certain to anger Republicans that would set a new precedent for other district court nominees in the years ahead.
“It’s too soon to make that judgment,” said Sen. Dick Durbin, the Democratic chairman of the Senate Judiciary Committee.
The White House and Durbin pushed back against Johnson's stated reasons for opposing Pocan, who is the brother of Rep. Mark Pocan, D-Wis. They noted that Johnson, along with Democratic Sen. Tammy Baldwin, included William Pocan back in June when listing four candidates they would recommend to serve on the U.S. District Court for the Eastern District of Wisconsin.
“Senator Johnson’s arbitrary reversal is unfortunate, and the rationale given for it is without foundation,” said White House spokesman Andrew Bates.
Johnson said that he has been hearing concerns from the Green Bay legal community that they need a judge who is locally based and actively involved in their community. He also seemed to tie Pocan indirectly to the horrific attack that occurred in downtown Waukesha, Wis., on Nov. 21 when a man drove his SUV through a suburban Christmas parade, killing six people and injuries dozens more.
Johnson called the attack “the direct result of soft-on-crime low bail policies and court orders.”
“I cannot support someone for a lifetime appointment that has granted low bail for someone charged with violent felonies,” Johnson said.
In a subsequent statement, Alexa Henning, a Johnson spokeswoman, acknowledged there was no connection between Pocan and what occurred in Waukesha. She pointed to a case, State of Wisconsin v. Davario D. Washington, that Johnson learned about after Pocan's nomination. In that 2015 case, she said, Pocan granted a low bail to an individual charged with violent felonies.
In light of the tragedy that occurred in Waukesha, “he cannot support someone who has a history of granting low bail to violent criminals," she said.
CNN reported that a transcript of the 2015 bail hearing showed that Pocan sided with the prosecutor who was seeking to increase the defendant’s bail to $5,000.
The White House emphasized that Pocan had nothing to do with what happened in Waukesha, and since 2017 has presided only over cases involving civil and family matters that do not involve bail. Further, Pocan lives in the same place that he did when Johnson recommended him last June and had committed to moving if confirmed.
Durbin said his staff had reached out to Johnson's office on four occasions leading up to Wednesday's hearing, but only learned Tuesday night that Johnson opposed Pocan.
“Such a lack of communication is unacceptable, and frankly, disrespectful to the nominee and his family," Durbin said.
Durbin said he wanted to consult with Baldwin before determining how to proceed. But it's clear that Pocan's nomination is in trouble if Johnson declines to give the the go-ahead for a hearing and committee vote. That presents a dilemma for Durbin, who is hoping to win Republican support for whoever emerges as Biden's choice to serve on the U.S. Supreme Court.
Pocan has received the American Bar Association’s top rating of “well qualified.” If confirmed, he would be the first LGBTQ federal judge serving in the Wisconsin-based court.
If Democrats did away with the blue slip in the Pocan case, “all hell would break loose,” said Republican Sen. John Kennedy, R-La.
“Congress keeps giving away its power. We've given our power to the courts. We've given our power away to the administrative state. We've given our power away to the executive branch," Kennedy said. “I'm just not in favor of giving away any more power."
Sen. Sheldon Whitehouse, D-R.I., said it would not surprise him to see Durbin honor Johnson's wishes.
“I got a judge through during the Trump years because Senator (Lindsey) Graham protected my blue slip rights, so I'm in no position to turn against that now," Whitehouse said.