Wisconsin Republican Sen. Ron Johnson said Tuesday he would not support a federal court nominee he had previously recommended to President Joe Biden – a move that could stop the nominee, Wisconsin state court Judge William Pocan, from being confirmed.
Johnson’s reversal prompted criticism from Senate Judiciary Chairman Dick Durbin, who nonetheless signaled he would honor the so-called “blue slip” practice that allows home states senators to stop the district court nominees from moving forward.
“Sen. Johnson is blocking this committee from proceeding on a nominee he recommended to President Biden,” Durbin said at a committee hearing Wednesday. Pocan, nominated for the district court for Wisconsin’s Eastern District, had been slated to testify at the hearing until Johnson announced that he would not support the nomination.
Pocan would be the first LGBTQ federal judge in Wisconsin, according to the White House.
This is the first instance of a home state senator withholding a blue slip – which indicates their approval of a nominee – for a Biden nominee, and is notable given that Johnson previously said he was “pleased to recommend” him.
Pocan, whose brother is Democratic Rep. Mark Pocan of Wisconsin, was one of four potential nominees recommended in June by Johnson and his Democratic counterpart for the vacancy. Johnson and Democratic Sen. Tammy Baldwin used a bipartisan judicial selection committee for vetting potential nominees to the bench.
In a statement Tuesday night, Johnson said that he had “been hearing concerns from the Green Bay legal community that they needed a judge who is locally based and actively involved in their community.”
Pocan, a Milwaukee County Circuit Court judge since 2006, does not live in Green Bay, where the vacancy in question is based. However, according to Durbin, Pocan had said that he would move to Green Bay if confirmed.
“Sen. Johnson knew full well back in June that Judge Pocan did not live in Green Bay at this time,” Durbin, a Democrat from Illinois, said.
Johnson’s statement also attempted to connect Pocan’s nomination of the December tragedy in Waukesha, in which six people were killed when a man drove into a Christmas parade, even though Pocan had no connection to the case.
The man, Darrell Brooks, had been previously released on an $1,000 bail after being accused of running over a woman in a domestic abuse case – a matter Pocan also was not involved in.
“I cannot support someone for a lifetime appointment that has granted low bail for someone charged with violent felonies,” Johnson said Tuesday.
Since 2017, according to the White House, Pocan has served on the Milwaukee court’s civil and family divisions, where the cases do not concern bail.
White House spokesperson Andrew Bates noted that the American Bar Association had granted Pocan its highest rating and Bates said in a statement that said that Pocan had “absolutely no connection to the Waukesha tragedy.”
“Judge Pocan would also make history as the first LGBTQ federal judge for Wisconsin,” Bates said. “Senator Johnson’s arbitrary reversal is unfortunate, and the rationale given for it is without foundation.”
Johnson’s office, in a follow up statement to CNN Wednesday, pointed to a case called State of Wisconsin v. Davario D. Washington, where, according to Johnson spokesperson Alexa Henning, Pocan granted a “low bail” to an “individual charged with violent felonies”
According to a transcript obtained by CNN of the 2015 bail hearing that Pocan presided over, the judge sided with the prosecutor who was seeking to increase the defendant’s bail to $5,000.
“Senator Johnson has the right to overrule the recommendation of his judicial commission as new information comes to light, just as Senator Tammy Baldwin did in 2018 during the nomination process of Gordon Giampietro for Wisconsin’s Eastern District,” Henning said.
(Baldwin asked then-President Donald Trump to withdraw Giampietro’s nomination after learning about 2015 comments – not disclosed in the vetting process for the nomination – in which the nominee bashed Supreme Court rulings expanding the rights of same-sex couples.).
Home state senators’ leverage over nominees
Blue slips have historically been used as a tool to force presidents to work with senators to fill judicial vacancies in their states. Under Trump, Senate Republicans eliminated the blue state practice for appellate court nominees and ultimately 17 circuit court judges were confirmed over the objections of their home state senators.
Last week, the Senate Judiciary Committee approved a 6th Circuit nominee who was the first Biden appellate nominee to be opposed by the senators from the state of the vacancy, Tennessee. Republicans argued that the Biden White House did less to negotiate with the Tennessee delegation than the Trump White House offered Democratic senators – a claim Democrats rebuked.
Durbin said Wednesday that his office only learned at 7 p.m. on Tuesday that Johnson would prevent Pocan’s nomination from moving forward. Durbin said that over the course of nearly a month, his staff reached out to Johnson’s staff on four separate occasions and received no response.
“Such a lack of communication is unacceptable and frankly disrespectful to the nominee and his family,” Durbin said.
This story has been updated with additional details.