It was a new test for a tradition that has allowed senators to block confirmations of judges from their own states over the years.
William S. Pocan was to testify Wednesday before the Senate Judiciary Committee. Johnson opposed Pocan's nomination and Johnson stated that he couldn't support Pocan. He said that he was looking forward to working with Biden in finding a replacement.
The committee has been following a long-standing tradition of not proceeding with hearings about nominees for district courts until both senators from their home states have returned a "blue Slip", which signals that the Senate can proceed. This practice is intended to encourage consultation between the Senate and the executive branch on nominees for judicial office.
Infuriating Democrats, Republicans reduced the practice for appellate judges under Donald Trump's presidency. They maintained the practice for judges in district courts. Now the question is whether Democrats will ignore Johnson's opposition to the Pocan nomination, or whether they will proceed. This move would anger Republicans and set a precedent for future district court nominees.
"It's too early to make that judgement," stated Sen. Dick Durbin (Democratic chairman of the Senate Judiciary Committee).
Durbin and the White House reacted against Johnson's stated reasons to oppose Pocan. Pocan is the brother of Rep. Mark Pocan (D-Wis). They pointed out that Johnson and Democratic Sen. Tammy Baldwin included William Pocan in June's list of four candidates they recommended for the U.S. District Court of the Eastern District of Wisconsin.
Andrew Bates, White House spokesperson, stated that Johnson's arbitrarily reversed decision was regrettable and unfounded.
Johnson stated that he had been hearing from the Green Bay legal communities that they needed a judge who was locally based and involved in their community. Johnson also implied that Pocan was indirectly involved in the attack on downtown Waukesha (Wis.) Nov. 21 by a man driving his SUV through a suburban Christmas parade. Six people were killed and many more were injured.
Johnson described the attack as "the direct consequence of soft-on crime low bail policies, court orders"
Johnson stated, "I cannot support someone who has granted low bail to someone charged with violent felonies," Johnson.
Alexa Henning, a Johnson spokesperson, stated that there was no link between Pocan's nomination and the events in Waukesha. Johnson was made aware of the case State of Wisconsin D. Washington v. Davario D. Washington after Pocan was nominated. She said that Pocan had granted low bail in 2015 to an individual accused of violent felonies.
She stated that in light of Waukesha's tragedy, "he cannot support someone with a history of granting low bails to violent criminals."
CNN reported that Pocan was in agreement with the prosecutor during the 2015 bail hearing, which saw the defendant's bail increase to $5,000.
The White House stressed that Pocan was not involved in Waukesha's events. Since 2017, Pocan has only presided over civil and family cases that don't involve bail. Pocan still lives in the same location he lived when Johnson recommended him last Juni and has committed to moving if confirmed.
Durbin claimed that his staff had reached Johnson's office four times prior to Wednesday's hearing but learned on Tuesday night that Johnson was against Pocan.
Durbin stated that "so much communication is inexcusable, and frankly, disrespectful for the nominee and his loved ones."
Durbin stated that he would consult with Baldwin to determine the best way forward. It is clear that Pocan's nomination will be in jeopardy if Johnson refuses to allow a hearing or a vote by the committee. Durbin is trying to win Republican support to whoever becomes the U.S. Supreme Court's nominee.
Pocan was awarded the American Bar Association's highest rating of "well qualified." He would be the first LGBTQ federal judge to serve in the Wisconsin-based court.
According to Republican Senator John Kennedy (R-La), if Democrats got rid of the Pocan blue slip, "all hell would break out."
"Congress continues to give away its power. We have given our power over to the courts. We have given our power to the administrative state. Kennedy stated that we have given our power to the executive branch. Kennedy stated, "I'm not in favor giving away any more power."
Sen. Sheldon Whitehouse (D-R.I.) said that it wouldn't surprise him to see Durbin honor Johnson’s wishes.
Whitehouse stated, "I was able to get a judge through during Trump years because Senator Lindsey Graham protected my blue slip rights. So I'm not in a position to turn against that right now."