Wisconsin Gov. Scott Walker’s (R) reelection campaign received an inadvertent leg up from a liberal Democratic senator, thanks to that senator’s decision to give individual senators an unusual degree of control over federal judicial appointments. Sen. Patrick Leahy (D-VT) is chair of the Senate Judiciary Committee. In that role, he has given each senator veto power over any person nominated to a federal judgeship in their home state. This veto enabled a single Republican senator to control the balance of a key federal appeals court, which just handed down a decision restricting voting rights in Wisconsin.
To explain in more detail, earlier this month, a conservative three judge panel of the United States Court of Appeals for the Seventh Circuit reinstated Wisconsin’s voter ID law, which had been halted by a federal trial judge. Voter ID laws ostensibly target voter fraud at the polls, but such fraud is virtually non-existent. A study of the 3 million votes cast in Wisconsin during the 2004 election, for example, found only seven cases of voter fraud, and none of these cases would have been stopped by a voter ID law.
What voter ID does accomplish is that it disproportionately disenfranchises young people, voters of color and low-income voters, all of whom are less likely than the population as a whole to have IDs, and all of whom tend to prefer Democrats over Republicans. In 2012, for example, former New York Times numbers guru Nate Silver estimated that a voter ID law in the state of Pennsylvania “would reduce President Obama’s margin against Mitt Romney by a net of 1.2 percentage points.” The Real Clear Politics polling average currently shows Gov. Walker neck and neck with his Democratic challenger Mary Burke, so a 1.2 percent swing in the polls could easily transform a Burke victory into a Walker victory this November.
Although the panel of three judges who reinstated the voter ID law was particularly conservatve, the median judge on the Seventh Circuit is somewhat less so. The plaintiffs challenging the voter ID law asked the full Seventh Circuit — a panel of ten active judges — to withdraw the panel’s decision reinstating the law. On Friday, the full Seventh Circuit announced that its judges were evenly split on this issue. Five judges voted with the plaintiffs, including Republican appointees Richard Posner and Ilana Rovner, while 5 other judges, all of whom are Republicans, voted to leave the voter ID law in place. The practical effect of an even split is that the panel decision stands, so the voter ID law remains in effect in Wisconsin.
Which brings us back to the Senate Judiciary Committee and the judicial confirmation process. Although ten judges voted on whether to reconsider Wisconsin’s voter ID law, there are actually eleven active judgeships on the Seventh Circuit. The eleventh seat, however, has been vacant for more than four years.
In 2010, President Obama nominated a University of Wisconsin law professor named Victoria Nourse to this vacancy — Nourse was one of four potential nominees suggested to the White House by a nominating commission sponsored by the state’s two senators. This nomination died, however, after Sen. Ron Johnson (R-WI) defeated incumbent Sen. Russ Feingold (D-WI) in the 2010 election. Shortly after his election, Johnson objected to Nourse’s nomination, claiming that the University of Wisconsin law professor “has very little connection to the state of Wisconsin.”
Johnson’s objection to Nourse took on particular significance after he declined to return a “blue slip” on Nourse to the Senate Judiciary Committee. The blue slip process has taken on varying degrees of significance through the Senate’s history. For much of the Twentieth Century, for example, it was merely a mechanism home state senators could use to voice their opposition to a nominee, but nominees who were opposed by their home state senator would typically still receive a vote from the full Senate. Leahy, however, is one of only two Senate Judiciary Chairs in American history who has given each home state senator an absolute veto over anyone nominated to a judgeship in their state. Under Leahy’s rule — a rule that Leahy could unilaterally change at any time if he chose to — Johnson’s decision not to return a blue slip on Nourse held up her nomination indefinitely.
Eventually, in early 2012, Nourse asked President Obama to withdraw her nomination.
It’s possible that Johnson had a particular objection to Nourse and that there is some other lawyer that Johnson and Obama could agreed upon to fill the vacancy judgeship, but Johnson hasn’t exactly been in a hurry to find a mutually acceptable nominee. Johnson and his Democratic counterpart, Sen. Tammy Baldwin (D-WI), did not establish their own judicial nominating commission to screen potential nominees until April of 2013. Moreover, the commission waited until July 25, 2014 to announce that it was accepting applications for the Seventh Circuit vacancy — that’s more that four years after this vacancy opened and more than two years after Nourse withdrew her name.
If there were no blue slip process, then it is very unlikely that President Obama would not have successfully appointed someone — perhaps Victoria Nourse — to fill the vacancy on this appeals court. That Obama appointee would have likely provided the sixth vote to reconsider the voter ID case, a sixth vote that could potentially mean the difference between Governor Scott Walker and Governor Mary Burke.