Why an Obama Judicial Pick Could Go Down in the Democratic-Controlled Senate

A post-nuclear Senate doesn’t mean liberal judges galore.

National Journal
Elahe Izadi
May 14, 2014, 1 a.m.

There was a time when the pro­spect of eas­ing the rules for how the Sen­ate con­firms ju­di­cial nom­in­a­tions in­voked fear among con­ser­vat­ives: Why, Pres­id­ent Obama would go to town and pack courts with lib­er­al judges!

Months later, and pro­gress­ives are the ones up in arms over Obama’s nom­in­a­tion of a Geor­gia state judge to fill a va­cancy on the fed­er­al bench.

The nom­in­a­tion of Mi­chael Boggs to Geor­gia’s U.S. Dis­trict Court has be­come a flash­point for pro­gress­ives, due in part to Boggs’s past le­gis­lat­ive re­cord as a Demo­crat­ic state law­maker and the stances he took on abor­tion, same-sex mar­riage, and even sup­port for the Con­fed­er­ate flag.

But his nom­in­a­tion, of­fi­cially made in Decem­ber, was part of a deal struck with Geor­gia’s two Re­pub­lic­an sen­at­ors to fill va­can­cies on the courts. Johnny Isak­son and Saxby Cham­b­liss both test­i­fied Tues­day at a Sen­ate Ju­di­ciary Com­mit­tee hear­ing in fa­vor of Boggs and six oth­er ju­di­cial picks. As part of  the ar­range­ment, Re­pub­lic­ans ended a two-year old hold on the nom­in­a­tion of Jill Pry­or to serve on the 11th Cir­cuit Court.

Prom­in­ent black Demo­crats, such as Rep. John Lewis of Geor­gia, have con­demned the Boggs nom­in­a­tion. And abor­tion-rights act­iv­ists, who have tar­geted the nom­in­a­tion, are turn­ing their fo­cus to Demo­crat­ic sen­at­ors to block Boggs from go­ing for­ward.

“The Obama ad­min­is­tra­tion ful­filled their end of the bar­gain by put­ting Boggs for­ward as a nom­in­ee and now is the time for the Sen­ate to vote their con­science and keep him off the bench,” NARAL Pro-Choice Amer­ica Pres­id­ent Ilyse Hogue said in a state­ment.

Sen­ate Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy handed over the gavel to Sen. Richard Blu­menth­al, a crit­ic of Boggs, to chair Tues­day’s hear­ing on his nom­in­a­tion. But Leahy said in a state­ment that he wasn’t part of the “deal” the White House struck, and there “is no such thing as a bind­ing deal that neg­ates each sen­at­or’s re­spons­ib­il­ity to de­term­ine the fit­ness of a ju­di­cial nom­in­ee for a life­time ap­point­ment.”

Throughout the hear­ing, Boggs at­temp­ted to dis­tance him­self from past ac­tions, in­clud­ing his vote on an amend­ment that would al­low the pub­lic list­ing of abor­tion doc­tors. Many Demo­crats raised con­cerns about it be­cause of the pub­lic-safety risk posed to such doc­tors. “I re­gret vot­ing for it,” Boggs told the sen­at­ors.

Com­mit­tee rank­ing mem­ber Chuck Grass­ley asked Boggs about com­ments he made in 2004 as state le­gis­lat­or re­lated to same-sex mar­riage. But Boggs de­clined to even in­dic­ate how he felt about the is­sue now: “My per­son­al opin­ion was, at the time, over a dec­ade ago, that I was in sup­port of a pro­posed con­sti­tu­tion­al amend­ment that would have banned same-sex mar­riage. My po­s­i­tion on that, sen­at­or, may or may not have changed since that time, as many people’s have over the last dec­ade.” 

At one point, un­der ques­tion­ing by Sen­ate Ma­jor­ity Whip Dick Durbin about Boggs’ vote to have the Con­fed­er­ate flag in­signia on the Geor­gia flag, Boggs said: “My vote was nev­er in­ten­ded to be dis­respect­ful,” and that his con­stitu­ents wanted it. He also said he was “of­fen­ded” by the flag.

Boggs said his track re­cord as a judge shows he holds no bi­as; he es­sen­tially said he wasn’t a ra­cist, cit­ing sup­port he re­ceived from black politi­cians and voters in his primary elec­tion, which took place after the Con­fed­er­ate flag vote.

Re­peatedly, Boggs dodged ques­tions re­lated to his per­son­al be­liefs on abor­tion and mar­riage. “My per­son­al feel­ings would be ir­rel­ev­ant to how I would act as a judge,” he told sen­at­ors.

Many Demo­crats still soun­ded un­sat­is­fied by such re­sponses, such as Sen. Di­anne Fein­stein of Cali­for­nia. “For my vote, I have to have cer­tainty, and I don’t know quite how to get it in view of this re­cord,” she said.

A num­ber of lib­er­al law­makers who don’t sit on the com­mit­tee, such as Sens. Bernie Sanders and Tom Har­kin, said they don’t have an opin­ion yet about the pick.

But even law­makers who sit on the com­mit­tee, in­clud­ing Blu­menth­al, haven’t come to a con­clu­sion yet.

“I have ser­i­ous con­cerns about some of the ac­tions and state­ments he has sought to dis­avow or dis­claim,” Blu­menth­al told Na­tion­al Journ­al. “I’m go­ing to re­view the re­cord to as­sess the sin­cer­ity and sig­ni­fic­ance of his dis­avow­als, and make a de­cision very shortly.”

The White House is stand­ing by their man. White House Press Sec­ret­ary Jay Car­ney re­it­er­ated Tues­day that Obama “be­lieves he is qual­i­fied for the fed­er­al bench” and that Boggs “ought to be con­firmed.”

“Of all the re­cent cri­ti­cisms offered against Mi­chael Boggs, not one is based on his re­cord as a judge for the past 10 years,” Car­ney ad­ded.

Demo­crats will have to de­cide soon wheth­er to con­cede to pro­gress­ives’ con­cerns or go along with what the White House wants. A markup hasn’t been sched­uled yet, but the com­mit­tee break­down of 10 Demo­crats and eight Re­pub­lic­ans means that even if Boggs gets every Re­pub­lic­an to sup­port his nom­in­a­tion, he’ll still need at least two Demo­crats to back him, too.

In the­ory, ju­di­cial nom­in­ees were sup­posed to be one of the few things that Demo­crats wouldn’t have to fight or make con­ces­sions over. The Sen­ate rules change that took place in Novem­ber means that most ju­di­cial nom­in­ees can be con­firmed by a simple ma­jor­ity. But the blue-slip pro­cess — a pro­ced­ur­al cour­tesy that al­lows sen­at­ors to block nom­in­a­tions of fed­er­al judges to serve in their state dis­trict courts — has be­come an­oth­er av­en­ue by which Re­pub­lic­ans have forced Demo­crats in­to con­ces­sion-mak­ing mode. 

Sen­ate Ma­jor­ity Lead­er Harry Re­id told BuzzFeed on Wed­nes­day that he “can’t vote” for Boggs “un­less I have a bet­ter ex­plan­a­tion.” Re­id ad­ded: “This is a life­time ap­point­ment. He’s said some things and made some de­cisions I think are not very good.” Re­id has yet to to talk to Leahy and Lewis about the nom­in­a­tion.

But it’s still un­clear wheth­er Re­id will bring the Boggs nom­in­a­tion to the floor for a full vote, should he pass the Ju­di­ciary Com­mit­tee, giv­en the White House’s po­s­i­tion. When asked that on Tues­day, Re­id simply re­spon­ded: “We’ll see.”

This story has been up­dated to in­clude Sen­ate Ma­jor­ity Lead­er Harry Re­id’s latest re­marks on the sub­ject.

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