Critics Question Nominee's 'Bias'

Conservative views make him unsuitable as Obama nominee for U.S. judge, they say.

        

R. Robin McDonald, Daily Report

          
February 21, 2014

 

When federal judicial nominee Michael Boggs recounted bills he had sponsored as a Georgia legislator in a questionnaire for the U.S. Senate Judiciary Committee, he sounded earnest and, occasionally, even a little dull.

 

But his list of legislation—which included strengthening the state's child pornography laws, rewriting the state Probate Code and requiring criminal background checks for bail bondsmen—didn't mention his sponsorship of far more controversial measures reflecting a conservative political agenda at odds with the president who has nominated him to the U.S. District Court.

 

Boggs, who served as a Democrat from 2001 to 2004 in the Georgia House of Representatives, made no mention of a resolution he introduced in the House in 2004 calling for a constitutional amendment to ban same-sex marriage. Speaking on the floor of the House, Boggs said the amendment was "premised on good conservative Christian values" and intended to guard against rulings by "activist judges" who might overturn a state law that already barred gay marriage.

 

Now a judge on the Georgia Court of Appeals, Boggs also failed to mention his sponsorship of bills that remain anathema to progressive Democrats—enacting more limits on abortion and placing the Ten Commandments in Georgia's 159 county courthouses—and his vote to retain the Confederate battle emblem on the state flag.

 

A lawyer from the southeast Georgia district Boggs used to represent said Boggs was merely reflecting his conservative, "Bible Belt" constituency by promoting those legislative efforts. She and another attorney who also tried cases before Boggs when he was a Superior Court judge in Waycross said Boggs would have no trouble separating his advocacy role as a legislator from his mandate as a judge to fairly and impartially administer the law.

 

But Boggs' legislative record has provided fodder for more than two dozen national progressive and civil rights organizations that are urging the Democratic-controlled Senate to reject his nomination.

 

Boggs could not be reached for comment and—like other federal judicial nominees—has avoided comment on issues associated with his nomination.

 

Package deal

 

Boggs' nomination is part of a package deal that the White House cut with Georgia's two Republican senators last year. That deal allowed U.S. Sens. Johnny Isakson and Saxby Chambliss to name one nominee to the U.S. Court of Appeals for the Eleventh Circuit and three of four nominees to the district court.

 

In return, Isakson and Chambliss have reportedly agreed to lift their objections to Atlanta litigator Jill Pryor, whose nomination to the Eleventh Circuit they have stalled for two years. Pryor's nomination has been championed by her longtime law partner, Emmet Bondurant, the former chairman of Georgia Common Cause who has challenged Republican-sponsored measures such as Georgia's voter photo ID law.

 

The deal also has Georgia's senators agreeing to the nomination of Leigh Martin May, whose candidacy for the federal bench they first rejected in 2009. May, a co-founder of the Red Clay Democrats, is a law partner of James Butler Jr., one of the state's most prominent plaintiffs attorneys.

 

A spokesman for the progressive group Democracy for America dismissed the idea that Boggs' nomination was a necessary compromise.

 

"We understand there are times you do some kind of horse-trading in politics," said Neil Sroka. "But there is a difference in horse-trading and caving on core values. This is an example of the White House caving and giving far too much to the right in a lifetime judicial appointment."

 

"From everything we have learned about him," Sroka continued, "he [Boggs] is a candidate that the right wing has been desperate to have on the federal judiciary."

 

Abortion, religion and race

 

Among the bills Boggs sponsored as a legislator but omitted from his Senate Judiciary questionnaire was one establishing a "pro-life" license plate that would have generated funds for crisis pregnancy centers that didn't provide abortion counseling or abortion-related procedures. Other bills he sponsored would have required minors to seek permission of a parent or guardian before they could obtain an abortion, even in cases of incest and rape, and required that a minor seeking an abortion also must be accompanied by a parent or guardian with a state-issued photo identification.

 

Last week, NARAL Pro-Choice America launched a campaign to stop Boggs' confirmation. "We look to our judicial branch to protect and uphold our values and freedoms," Ilyse Hogue, president of NARAL Pro-Choice America, told the Daily Report. Boggs' legislative record, she added, "shows that he will push his personal agenda instead of listening to the cases in front of him without bias."

 

UniteWomen.org Action this week launched a Twitter campaign, #No2Boggs, to defeat his confirmation. In conjunction with the Twitter campaign, the organization posted on its website an open letter to President Barack Obama, calling Boggs' nomination "an extreme step backwards" and asking the president to withdraw it.

 

Another bill that is generating concern is one he sponsored with then-House Minority Leader Glenn Richardson and four other lawmakers, calling for the display of the Ten Commandments in all of Georgia's 159 county courthouses. The bill, which said the display was also to include copies of the Mayflower Compact and the Declaration of Independence, authorized the state attorney general to defend the counties against federal lawsuits challenging the practice as unconstitutional. That bill included language that "Biblical literacy contributed importantly in the development of American law and constitutionalism."

 

A spokeswoman for Americans United for Separation of Church and State said what the organization has uncovered so far about Boggs has already caused "great concern."

 

Along with the Ten Commandments bill, Maggie Garrett noted that Boggs backed a measure asking the U.S. Congress to affirm that the U.S. is a Judeo-Christian nation and a resolution in support of "In God We Trust" as the national motto.

 

Those bills show "a fundamental misreading of the U.S. Constitution, which is not really a trait you want in a federal judge," said Garrett, a former lawyer with the American Civil Liberties Union of Georgia. "At this point, we have reservations and concerns, but we are still examining the record."

 

Boggs' civil rights record and his 2001 vote to retain the Confederate battle emblem as part of Georgia's state flag have also drawn the ire of the NAACP, Georgia's Democratic congressmen, and a coalition of the state's minority bar associations. At a Dec. 23 news conference in Atlanta, state Sen. Vincent Fort, D-Atlanta, said that the NAACP's examination of Boggs' legislative record "shows that Michael Boggs is on the wrong side of history. The votes we have looked at tell us that Michael Boggs does not understand the idea of inclusion, the idea of diversity, the idea of simple justice."

 

'Conservative judicial philosophy'

 

A 1990 graduate of Mercer University's Walter F. George School of Law, Boggs was in private practice from 1990 until 2004, first at McKenzie & McPhail and its successor, McKenzie, Martin, Taylor & McConnaughey in Atlanta, then at Thomas & Settle in Waycross, Landers & Boggs in Waycross, and as a sole practitioner.

 

After he was appointed to the Waycross Circuit Superior Court by Republican Gov. Sonny Perdue in 2005, Boggs founded the circuit's drug court and served until 2012, when he was appointed to the Court of Appeals by Republican Gov. Nathan Deal. For the past two years, Boggs has served as co-chairman of Deal's Council on Criminal Justice Reform.

 

"The judiciary continues to endure criticism, fairly earned in some cases, of abrogating their constitutionally created authority by issuing decisions that venture into policy making," Boggs wrote. "Partisan political campaigns are increasingly politicizing our judiciary, in part because of judicial decisions that have ignored or violated the basic tenets of the judiciary, that policy making is the sole province of a duly elected citizen legislature."

 

Blackshear attorney John Thigpen, who told the Daily Report this week that he probably has tried more cases, both criminal and civil, in front of Boggs than any other lawyer, said Boggs' political stances while a state legislator would not affect his ability to be fair on the bench. "I don't think that would interfere one bit with him doing the right thing," Thigpen said. "He's a man's man, OK? He knows what to do and how to do it. I've been practicing law 35 years. As far as I'm concerned, he's top of the line."

 

Thigpen said that Boggs represented his district while he was a Georgia legislator and that he thought highly of him in that role as well. "He was conscientious. He knew what his constituents wanted," Thigpen said. "We're in the Bible Belt down here. … I think he was doing what his constituency wanted him to do. And that was his job."

 

Thigpen also dismissed criticism that legislation Boggs had sponsored might signal he would entertain a bias should those matters be litigated in his courtroom. "He will look way beyond that," Thigpen said.

 

Brunswick attorney James Durham, a former member of the state Judicial Qualifications Commission and former president of the State Bar of Georgia, also defended Boggs. He told the Daily Report this week that he has tried cases in front of Boggs in the Waycross Judicial Circuit, saying, "I have never seen anything but complete fairness from Mike Boggs in a courtroom."

 

"I don't know that you can equate what somebody did as a representative," with his role as a judge, Durham said. "That's a different job. That's representing a constituency. I assume, in most cases, people try to represent their constituencies as they think they would vote."

 

Durham added: "It doesn't have anything to do with how somebody would be on the bench as a judge and how they would apply the law. I have never seen anything that would indicate to me that Judge Boggs would have a personal opinion in his rulings."

 

Doesn't reflect 'Obama's values'

 

State Rep. Karla Drenner, the first openly lesbian woman elected to the Georgia House of Representatives, served with Boggs during his four years there. She told the Daily Report, "He doesn't depict any of the values the Obama administration stands for. … I don't know why we would want to appoint someone for life who doesn't share the visions, the values that this current president has."

 

Drenner described Boggs as "a vocal opponent" of same-sex marriage and identified him as "the first Democrat to come out in favor of a constitutional amendment to ban it in Georgia. At the time, the state already had a law on the books barring same-sex marriage, and Drenner called the constitutional amendment "one of the most contentious issues" the legislature has faced.

 

Drenner, D-Avondale Estates, recorded the resulting debate on the resolution in February 2004, including Boggs' introductory speech, which she supplied to the Daily Report. In that speech, Boggs said, "It's my opinion, both as a Christian, as a lawyer and as a member of this House, that it's our opportunity to stand up in support of this resolution."

 

"I think it's important to recognize the dangers that we face with respect to activist judges, with respect to mayors who are operating in derogation of current state law," he continued.

 

"I submit to you that proposing a constitutional amendment that, in fact, mirrors the language, for the most part, that is ... codified in Georgia's Defense of Marriage Act will give us an additional safeguard," Boggs said, according to a transcript of Drenner's recording. "It will, in fact, prohibit state constitutional challenges to the proposition … that is outlined in Georgia law already. … I submit to you that whether you're a Democrat or whether you're a Republican, whether you're rural from a rural area, like myself, or whether you represent an urban area, we have opportunities seldom [seen] in my short tenure in the legislature to stand up for things that are commonsensical; things that are premised on good conservative Christian values, and, in this instance in particular, to support the sanctity of marriage. I'm going to ask all of you like me to support this proposition."

 

In recalling that debate, Drenner said, "I don't think that Judge Boggs, in this new capacity, would be any friend to the gay community or any other progressive agenda that the Obama administration has supported. … He's going to be part and parcel of the reason why the South won't move forward. Look at his history: no on same-sex marriage, no on a woman's right to choose, no on changing the flag."

 

That Boggs omitted from his Senate questionnaire his sponsorship of the socially conservative legislation "shows that he knew they are points of contention, and he has probably not changed his opinion," she said. "Either by omission or commission, it is still a lie."

 

At the December news conference, Fort said the constitutional amendment to ban same-sex marriage was part of a nationwide, and largely successful, push by "the far right of the Republican Party" to turn out the vote in 2004.

 

Last October, after the Daily Report identified Boggs as one of the possible nominees for the federal bench in Atlanta, Fort and representatives of several civil rights organizations in Georgia—including the Georgia Coalition for the People's Agenda, the NAACP, and Georgia Women's Action for New Directions—voiced their objections to Boggs because in 2001 he had cast a vote to retain Georgia's old state flag, emblazoned with the Confederate battle emblem.

 

Boggs was one of 82 legislators, including current state Democratic Party chairman Dubose Porter, who voted not to strip the flag of its Confederate symbol.

 

At a news conference, Fort said, "We are very concerned that a judge, while a legislator, in the 21st century voted for the Confederate flag. It is reasonable for the public to be concerned about whether he is committed to fairness."

 

A coalition of African-American lawyers and bar associations in Georgia which also is opposed to Boggs has asked Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., for permission to testify in opposition to the slate of nominees at their confirmation hearings.

 

A committee spokeswoman told the Daily Report this week that those hearings have not been scheduled because neither Isakson or Chambliss have returned blue slips to the committee signaling their willingness to support the president's nominees and because committee Republicans are still reviewing background materials on the Georgia nominees. Spokeswomen for both Chambliss and Isakson could not be reached for comment.

 

U.S. Rep. David Scott, a Democrat whose district includes parts of Clayton, Cobb, Douglas, Fulton, Fayette and Henry counties, also has sought permission to testify at the Senate judicial confirmation hearings, and at a meeting earlier this month with the Congressional Black Caucus and presidential adviser Valerie Jarrett challenged Jarrett and the White House to have Boggs' name withdrawn.

 

"Why should we have judges nominated for life who have such biases in their backgrounds," Scott said. "Sometimes it's better to have these positions vacant than to put these people in with prejudiced opinions against African-Americans, against gay people, against women's reproductive rights. … It can't stand. Georgia is better than that."