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Congress

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

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

(Shutterstock)

photo of Elahe Izadi
May 14, 2014

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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