How an Obama Nominee Can Still Stall Out in the Senate

The fate of Michael Boggs’s nomination to a Georgia District Court shows just how tumultuous the nomination process can be, even in a changed Senate.

President Obama waves as he arrives to attend the international D-Day commemoration ceremony on the beach of Ouistreham, Normandy, on June 6, 2014.
National Journal
Elahe Izad
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Elahe Izad
June 18, 2014, 1:05 a.m.

It’s been months since the Obama ad­min­is­tra­tion nom­in­ated Mi­chael Boggs to serve on Geor­gia’s U.S. Dis­trict Court, and nearly a month since he test­i­fied be­fore the Sen­ate Ju­di­ciary Com­mit­tee. And he still hasn’t got­ten a vote.

While Sen­ate Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy has moved ahead the oth­er nom­in­a­tions for Geor­gia’s courts, Boggs’s has been held back. “More time is needed to fol­low up on his re­cent testi­mony be­fore his nom­in­a­tion will be sched­uled for a vote,” Leahy said in a state­ment last week.

Boggs went be­fore the full com­mit­tee back in May, where he re­ceived a grilling for his re­cord as a con­ser­vat­ive Demo­crat­ic Geor­gia state le­gis­lat­or on is­sues ran­ging from abor­tion to the Con­fed­er­ate flag. Since then, Sen­ate Ma­jor­ity Lead­er Harry Re­id, the Sen­ate’s No. 2 Demo­crat Dick Durbin, and oth­ers have said they are against Boggs’s nom­in­a­tion, or will vote against it in com­mit­tee.

Boggs’s nom­in­a­tion was the res­ult of a deal struck by the White House and Geor­gia’s two Re­pub­lic­an sen­at­ors, Saxby Cham­b­liss and Johnny Isak­son. They had agreed to re­lease their two-year hold on a Cir­cuit Court nom­in­ee in re­turn for Boggs’s nom­in­a­tion to the Dis­trict Court. The deal in­cludes six oth­er nom­in­ees, the rest of whom are be­ing moved ahead by the Ju­di­ciary Com­mit­tee.

In ad­di­tion to Boggs’s testi­mony, there are now more than 60 pages of writ­ten re­sponses to fol­low-up ques­tions posed by sen­at­ors after his hear­ing.

One such ques­tion came from Demo­crat­ic Sen. Di­anne Fein­stein of Cali­for­nia, who asked Boggs about his vote to move an “Eng­lish-only” bill through the Geor­gia State­house. In­tro­duced in Feb­ru­ary 2004, HB 1411 would have pro­hib­ited state agen­cies, counties, and mu­ni­cip­al­it­ies from us­ing or print­ing of­fi­cial doc­u­ments and forms and trans­act­ing busi­ness in lan­guages oth­er than Eng­lish, as well as re­peal­ing some ex­ist­ing ex­emp­tions. Boggs voted to move the bill ahead via the pro­ced­ur­al mo­tion to en­gross. The bill even­tu­ally failed.

Fein­stein wrote that she was “con­cerned about the ser­i­ous im­plic­a­tions of this bill had it been en­acted — es­sen­tially bar­ring first re­spon­ders, po­lice of­ficers, phys­i­cians, 911 op­er­at­ors, or a whole host of oth­er state or loc­al gov­ern­ment em­ploy­ees from com­mu­nic­at­ing with non-Eng­lish-speak­ing in­di­vidu­als.” She asked Boggs wheth­er he con­sidered such rami­fic­a­tions be­fore vot­ing to en­gross the bill.

“I do not re­call what my po­s­i­tion was on that bill 10 years ago or even if I had formed an opin­ion on it. As such, I do not re­call wheth­er I con­sidered these sorts of situ­ations or oth­er rami­fic­a­tions pri­or to vot­ing to en­gross this bill,” Boggs wrote in re­sponse.

Ad­di­tion­ally, Boggs ex­plained his vote by point­ing out that the Geor­gia House Demo­crat­ic lead­er­ship had also voted for it: “It was not en­tirely un­usu­al for me to fol­low the lead of my caucus on pro­ced­ur­al votes such as mo­tions to en­gross.”

That ex­change fol­lows oth­er writ­ten an­swers on what he knew re­gard­ing the pub­lic safety risks posed to abor­tion doc­tors when he sup­por­ted a Geor­gia amend­ment to re­quire doc­tors to post their names and num­ber of abor­tions they per­formed on­line.

The con­tro­ver­sial pick has sparked out­rage by abor­tion-rights and civil-rights groups, as well as the revered civil-rights icon John Lewis.

Boggs, to the sur­prise of many, hasn’t with­drawn his nom­in­a­tion. And the White House, for its part, is stand­ing by its nom­in­a­tion of Boggs to re­ceive a life­time ap­point­ment on the fed­er­al bench. “Based on Judge Boggs’s 10-year track re­cord as a state tri­al and Ap­pel­late Court judge, the pres­id­ent be­lieves he is qual­i­fied for the fed­er­al bench,” White House press sec­ret­ary Jay Car­ney said in May.

When asked if Obama sup­ports Demo­crats “vot­ing their con­science” on this nom­in­a­tion, Car­ney said, “The pres­id­ent sup­ports vot­ing your con­science as a gen­er­al mat­ter.”

The pro­longed de­bate is tak­ing place after the Sen­ate changed its rules late last year to al­low most ju­di­cial nom­in­ees to be con­firmed by a simple ma­jor­ity (read: with only Demo­crat­ic votes needed). Even still, Obama picks aren’t al­ways get­ting through the up­per cham­ber.

It’s an open ques­tion as to how far the ad­min­is­tra­tion will push Demo­crats on the Boggs nom­in­a­tion. But, at least for now, it doesn’t seem they are push­ing very hard. Just look at how the White House re­acted when its pick to head the Justice De­part­ment’s Civil Rights Di­vi­sion, Debo Ad­e­g­bile, failed be­cause Demo­crats blocked it: Obama called it “a “trav­esty based on wildly un­fair char­ac­ter at­tacks against a good and qual­i­fied pub­lic ser­vant.” And Durbin had told re­port­ers the White House went on a “full-court press” to garner sup­port. Even Vice Pres­id­ent Joe Biden was dis­patched to the Sen­ate floor, in case his vote was needed to break a tie.

But it’s not look­ing like there will be any vice pres­id­en­tial at­tempts at hero­ics for Boggs. Even if he makes it through the Ju­di­ciary Com­mit­tee this sum­mer, without Re­id’s back­ing, he may not even get to the Sen­ate floor for a full vote.

Cor­rec­tion: An earli­er ver­sion of this story mis­stated the nom­in­a­tion in the story’s sub-head­line. Mi­chael Boggs has been nom­in­ated for a Geor­gia Dis­trict Court.

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