Stalled Georgia Judicial Nominee Presents a Dilemma for Senate Democrats

Posted September 10, 2014 at 3:22pm

The troubled judicial nomination of Michael P. Boggs is stuck in the Senate Judiciary Committee as the days grow short for congressional action this year, and the panel is moving other nominations ahead of his.

The committee added a slate of 10 judicial nominees to its agenda for votes this month, likely next week. That agenda does not include Boggs, one of President Barack Obama’s nominees to a federal district court in Georgia.

A vote now on Boggs’ nomination would unnecessarily risk a potentially awkward intraparty conflict among Democrats, Senate aides and nominations experts familiar with the nomination said. Committee Democrats either could reject one of Obama’s judicial picks for the first time. Or the nomination could advance to the full Senate with opposition from many Democrats and Senate Majority Leader Harry Reid, D-Nev.

The White House has backed Boggs’ nomination—although not vigorously—as part of a larger deal cut with Georgia’s two Republican senators for a group of district and appellate court nominees from the state. A White House spokesman did not respond to a request for comment.

Most Democratic members of the Judiciary Committee, however, oppose Boggs’ nomination based on positions Boggs took on abortion and same-sex marriage as a Democratic state lawmaker in Georgia in the early 2000s. Reid voiced opposition to Boggs, and so did progressive groups such as NARAL Pro-Choice America.

Yet one Democrat on the committee indicated he would vote for Boggs’ nomination, which adds another wrinkle to any committee vote. Sen. Sheldon Whitehouse, D-R.I., said in an interview on Tuesday that he backs district court nominees who have the support of their home-state senators.

Whitehouse said he spoke on the Senate floor in 2010 of the “powerful spirit of deference” to home-state senators, as Republicans tried to filibuster U.S. District Judge John McConnell for the federal bench in the District of Rhode Island. McConnell was confirmed in 2011.“It would be inconsistent of me to depart from that now,” Whitehouse said.

Along with votes in favor from the committee’s Republicans, the result could possibly be an unusual 9-9 tie vote, which means the nomination would not move to the full Senate. Even if the committee did vote to report the nomination, Reid has not indicated whether he would refuse to hold a floor vote on it.

In the meantime, a number of judicial nominations are set to leapfrog Boggs’ with votes this month. Boggs was first nominated Dec. 19. One of the nominees on the agenda, Madeline Cox Arleo for the District of New Jersey, was nominated June 26 and had her confirmation hearing July 29.

This isn’t the first time the committee has left Boggs behind. The committee held confirmation hearings for Boggs and six other judicial nominees from Georgia on the same day in May. The committee voted June 19 to advance all those nominees—except Boggs.

Ahead of that vote, Sen. Patrick J. Leahy, D-Vt., the Judiciary Committee chairman, said June 11 that more time was needed to follow up on Boggs’ testimony before a vote. Boggs answered follow-up questions in writing on June 15.

That was the last Boggs response posted to the committee’s website. There are no outstanding questions to Boggs, aides say. Boggs, currently a Georgia state appeals court judge, did not respond to a call for comment to his chambers.

Democrats took issue with Boggs for his previous support for efforts to ban gay marriage, keep the Confederate emblem on the state’s flag and publish information about the number of abortions performed by individual doctors.