President Obama's nomination of Judge Michael Boggs for a lifetime appointment to a federal District Court has been a source of fierce opposition from progressive Democrats, who scored a victory this week by effectively killing the nod in the Senate Judiciary Committee. Opposition to Boggs' nomination centered around his vote, as a Georgia state legislator, against removing the Confederate emblem from the Georgia state flag, his opposition to same-sex marriage, and his support for anti-abortion organizations and laws. Boggs has since disavowed his votes on the Confederate flag and abortion rights, but has declined to clarify his views on marriage, other than to say that he would adhere to precedent.
At Monday's White House briefing, Jen Bendery of The Huffington Post asked Press Secretary Josh Earnest if the president would urge Boggs to withdraw his nomination, given Senate Judiciary Committee chairman Sen. Pat Leahy's (D-Vt.) statement that Boggs doesn't have the votes to get out of the committee. The short answer: no.
"[T]he President believes that Mr. Boggs has the -- that Judge Boggs has the necessary qualifications to serve in this role. That’s why the President nominated him. And in terms of Senator Leahy’s comments to The New York Times, I hadn’t seen them, I’ve heard about them, but ultimately the president believes that Judge Boggs has the qualifications necessary to serve in that very important role."
The Boggs controversy has been roiling for months, pretty much since President Obama nominated him in December. On several occasions, then-White House Press Secretary Jay Carney tried to explain the years-long Republican obstruction that led to Boggs' nomination, as in this briefing from May 14:
In the case of Georgia, this nominee, supported by the Republican senators of Georgia -- we’ve been trying to fill these judicial vacancies in that state for more than three years, but two of the president’s nominees were blocked for nearly 11 months, and returned at the end of 2011.
So the choice is clear in a circumstance like this -- and this is what I mean about the context around how a nomination like this is made. Do we work with Republican senators to find a compromise, or do we leave the seats vacant? What is the better option? And I’m sure there are arguments on both sides, but you’re talking about seats that are vacant in four cases where you have judicial emergencies because of the vacancies. And we believe it would be grossly irresponsible for the president to leave those seats vacant.
That deal, like it or not, necessarily constrains the White House from throwing Boggs under the bus, even now, if they ever want to make such a deal with Republicans again. Since President Obama held up his end of the deal, and continues to do so, the rest of his nominees should advance in the Senate thanks to the nuclear option, Boggs' nomination goes down in flames, and everybody wins, right? Here's how that's going:
Tanya S. Chutkan: Nominee for the United States District Court for the District of Columbia - Confirmed 95-0
Mark Howard Cohen: Nominee for the United States District Court for the Northern District of Georgia - Reported by Judiciary Committee, awaiting confirmation.
Judge M. Hannah Lauck: Nominee for the United States District Court for the Eastern District of Virginia - Confirmed 90-0
Leigh Martin May: Nominee for the United States District Court for the Northern District of Georgia - Reported by Judiciary Committee, awaiting confirmation.
Judge Eleanor Louise Ross: Nominee for the United States District Court for the Northern District of Georgia - Reported by Judiciary Committee, awaiting confirmation.
Judge Leo T. Sorokin: Nominee for the United States District Court for the District of Massachusetts - Confirmed 91-0
Judge James Alan Soto: Nominee for the United States District Court for the District of Arizona - Confirmed 93-1
Wow, good thing we got that nuclear option going for us. As the White House has pointed out over and over again, Republican obstruction of this process isn't even about opposition, in most cases, it's for its own sake. Given whom the president was negotiating with, we're probably lucky not to be seating Judges Roscoe P. Coltrane and Jefferson D. Hogg. At least Boggs is a Democrat.
On the other hand, since the Democrats in the Senate have already gone with the nuclear option for presidential nominations, couldn't they just as easily have said, "Fuck your blue slips"? The custom of allowing home state senators a de facto veto over judicial nominees is no more written in stone than the filibuster is, even less so. For all the hand-wringing about what might happen if the Republicans regain the majority, and even (shudder) the White House, it's a pretty sure bet they'll do whatever they want no matter what Democrats do. What do you think a Senate Majority Leader McConnell and President Perry will do with a blue slip?