The nomination of Michael Boggs to serve on the federal district court in Georgia was supposed to embody bipartisan compromise — part of a deal between the White House and Senate Republicans to fill seven judicial vacancies in the state.
But this week, it became the latest example of how Capitol Hill remains difficult terrain for the Obama administration — even, at times, with members of its own party.
Senate Majority Leader Harry M. Reid (D-Nev.) announced Wednesday, without advance notice to the White House, that he would not support Boggs based on his past positions as a legislator on abortion, same-sex marriage and the Confederate flag. On Thursday, Reid doubled down, saying that “somebody should have looked a little deeper into his record” before he was nominated.
Meanwhile, Obama’s nominee for the U.S. Court of Appeals for the 1st Circuit, David J. Barron, has come under fire from both parties for his role in justifying the 2011 drone strike in Yemen that killed Anwar al-Awlaki, an American-born member of al-Qaeda.
White House counsel Kathryn Ruemmler made a pitch on Barron’s behalf during a closed-door session Thursday with Senate Democrats. Reid also took steps Thursday afternoon to schedule a vote on the Barron nomination for next week.
Sen. Rand Paul (R-Ky.) — a vocal critic of Obama’s drone policy — announced plans Thursday to oppose and filibuster Barron’s nomination, but Senate rules now require only 51 senators to end a filibuster in such a case, a threshold Democratic aides expect Barron to surpass.
The relationship between the White House and Senate Democrats “has never been better,” Sen. Charles E. Schumer (D-N.Y) said in an interview. “The closeness of the relationship is exemplified by the fact that we scheduled a lunch so the White House could explain the logic behind the Barron nomination.”
The administration’s outreach to Democrats comes as many Senate Republicans have been increasingly frustrated with Reid’s leadership style, and have questioned what has happened to the push that Obama made last year to have a series of private dinners and meetings with them.
Senate Minority Leader Mitch McConnell (R-Ky.) complained this week that the Senate “has been fundamentally changed” by Reid, “who has the ability to impose a gag rule on the rest of us.”
Boggs’s nomination has drawn serious criticism from groups representing women, African Americans and gays — all of which are critical to the Democrats’ voter mobilization efforts this fall. Aides said they expected Boggs will either opt to withdraw his nomination in the coming days or will eventually face likely defeat in the Judiciary Committee, because several Democrats have already expressed concerns or opposition to confirming him.
A conservative Democrat, Boggs supported keeping the Confederate emblem on the Georgia state flag; backed measures that would have required parents to accompany a daughter to an abortion clinic if she was younger than 18 and would have posted the names of abortion doctors and how many procedures they had performed; and voted to ban same-sex marriage.
He faced sharp questions about his legislative record and public statements during a Judiciary Committee hearing on Wednesday, and was faulted for appearing unprepared for the grilling. Two senior Democratic aides said Boggs “skated” through the hearing and “didn’t make a strong pitch for himself.”
Sen. Richard Blumenthal (D-Conn.) said his concerns “have only deepened” since the hearing in part because Boggs has yet to provide a copy of an opinion he joined related to abortion issues that was issued by the state appeals court he serves on.
“Withholding documents can result from either sloppiness or carelessness or deliberate effort to hide or conceal,” Blumenthal said.
Blumenthal said he believed that the White House was aware of concerns Democrats had about Boggs before his nomination, but added: “I don’t know how seriously they took them.”
The White House nominated Boggs as part of a years-long tradition known as “blue slips,” under which home-state senators sign permission slips before a nomination is made and a confirmation hearing is held. This required the administration to negotiate judicial picks with GOP Georgia Sens. Saxby Chambliss and Johnny Isakson, who agreed to move seven federal judicial nominations. The group included five women, two of whom would be the first African American female lifetime-appointed judges in Georgia.
“In the case of Georgia, we have been trying to fill these judicial vacancies for more than three years,” White House spokesman Eric Schultz wrote in an e-mail. “Our choice is clear: do we work with Republican senators to find a compromise or should we leave the seats vacant? Four of these vacancies are judicial emergencies, and we believe it would be grossly irresponsible for the president to leave these seats vacant.”
Schultz added that Obama considered Boggs qualified to serve on the federal bench, noting that as a judge Boggs “has taken a keen interest and leading role in criminal justice reform.”
University of Pittsburgh law professor Arthur Hellman said it is rare for a district court nominee to inspire such opposition because such judges lack the power and reach of circuit court judges. According to the White House, only seven of the 257 judges Obama has nominated have encountered any Democratic opposition.
“You have three red flags there in one nominee, so it creates this huge controversy,” Hellman said. “These fights are more important to the outside groups than to the senators, but because they’re important to the outside groups, they become important to the senators.”
Advocacy groups said they were compelled to fight Boggs because they found his record so troubling and because he failed to assuage their concerns during his recent hearing.
David Stacy, government affairs director for the Human Rights Campaign, said he can understand that many Democrats are “conflicted” over the Boggs pick, because “Democratic senators also like to support the president in his nominations. I don’t think our opposition to the nomination makes it easier for them, but that’s not our job.”
Sen. Chris Murphy (D-Conn.) said he hasn’t decided how he would vote on Boggs, but added: “You have to be careful about the precedents you set on people who’ve worked on controversial cases as a lawyer or advocate.”
Isakson wouldn’t say this week whether he thought Boggs would be confirmed, and has declined to criticize the White House or his Democratic colleagues.
“We worked very hard to come up with a great package with the White House,” he said Wednesday. “I trust the president’s judgment, Kathy Ruemmler’s judgment. All seven people are very qualified. I think every member should make their own determination and do their own due diligence.”