Follow-up questions ask for more details on former state legislator's stance on abortion, same-sex marriage and Georgia's flag
R. Robin McDonald
Daily Report June 4, 2014
Members of the U.S. Senate Judiciary Committee weren't content to interrogate Georgia federal judicial candidate Michael Boggs for nearly two hours at his May 13 confirmation hearing.
Seven senators asked the Georgia Court of Appeals judge follow-up questions in writing—and, as in the hearing, focused on his conservative stances as a state legislator more than a decade ago. Boggs on Monday responded with 74 pages of answers.
The inquiries largely pressed Boggs to elaborate on his positions on abortion, same-sex marriage, activist judges, judicial ethics, and his support for the old Georgia flag, which included the Confederate battle emblem. Democrats who sent questions included Richard Blumenthal, Conn., Dianne Feinstein, Calif., Al Franken, Minn., Christopher Coons, Del., and Patrick Leahy, the panel chairman, of Vermont. Republicans Charles Grassley of Iowa and Ted Cruz of Texas also added queries.
At his confirmation hearing, Boggs took fire from Democrats for his support of bills that would have: created a public registry of doctors who offered abortion services in Georgia; required minor teenagers who sought an abortion to be accompanied by a parent or guardian who would have to provide photo identification; and created a state license plate promoting a pro-life philosophy that would have funded pregnancy centers as long as they not offer abortion services or counsel young women about abortion.
Coons also pushed Boggs on whether he violated the Georgia Code of Judicial Ethics when his campaign re-election committee contributed $2,500 to Georgia Conservatives in Action in 2012.
At the hearing, Boggs disavowed many of the positions he had taken as a legislator, calling them ill-conceived or inappropriate. He also acknowledged that, as a legislator, he had made mistakes, not paid attention, or was otherwise unaware of the nature or impact of the more controversial bills or amendments he had favored. He also urged committee members to look at his track record as a judge, which he said was built on his intent "to follow the rule of law and follow precedent."
Of significant concern to committee Democrats who posed additional questions to Boggs was the former legislator's 2001 vote in favor of a bill that would have publicized the names of doctors who provided abortion services. Boggs explained in his response to questions from Blumenthal, who was publicly skeptical of Boggs before the hearing, that he had no recollection of the amendment, which was first voted on by the Georgia House of Representatives in February 2001 and again on the last day of the 2001 legislative session.
Boggs also said that while he understands "from recent press reports that the issue of violence against abortion doctors was debated on the House floor that day … I do not remember having even heard of the amendment prior to the author presenting it on the floor of the House just prior to the final vote."
Boggs said the underlying bill to which the abortion registry amendment was attached was the creation of a patient-accessible registry of doctors that would include their credentials, their hospital privileges, participation in the state Medicaid program, a criminal background check, and disciplinary actions by regulatory boards and resignations from previous medical facilities.
"The underlying bill," Boggs wrote, "had nothing to do with women's reproductive rights, and I was not focused on that issue."
Boggs also said that in voting for the amendment, he gave no consideration to the issue of violence against abortion doctors. "I was considering the bill as a whole, the purpose of which was [predominantly] to educate and make available to the public information concerning a physician's disciplinary history and malpractice judgments," he wrote.
Leahy zeroed in on a comment Boggs made at the hearing as he explained some of his earlier stances. Boggs said that when he was a legislator, "I did not have an obligation to be faithful to the rule of law."
"Why," Leahy asked in the first of his written questions, "do you believe legislators are not obligated to be faithful to the rule of law?"
Boggs replied: "I did not mean to imply that legislators are above the law or not bound to the laws of our society. ... I simply meant that legislators do not have the same obligations of faithfulness to precedent as judges. Legislators have discretion to make any law deemed appropriate within its powers, whereas the judiciary has a more specific and constrained duty of adherence to precedent."
Comments on Georgia flag
Asked at his hearing about votes against removing the Confederate battle emblem from the Georgia flag, Boggs testified that he was representing the will of his south Georgia constituents, who, he said, wanted a referendum on whether to replace the flag.
In written questions, Leahy asked Boggs whether he had consulted African-American constituents before the flag vote. Boggs replied: "I considered the views of all of my constituents when I cast that vote 13 years ago."
Boggs wrote that he spoke with "several African-American constituents, including both elected officials and members of the general public. While they generally made known their support for changing the flag, those with whom I spoke always stated that they supported me regardless of how I voted, and indeed, when I faced a challenger in my 2002 Democratic primary election, roughly one year after the flag vote, I was re-elected with 90 percent of the vote in my district."
During the hearing, Boggs testified that in voting to retain the old flag, he had voted against the dictates of his conscience. Leahy asked for examples of votes where Boggs had cast a vote of conscience that placed him at odds with his constituents.
Boggs said that as a legislator he cast "thousands of votes, some of which I am sure were based on my personal beliefs which differed from that of the majority of my constituents or were not in alignment with my political party's interest."
He also clarified what he meant by voting his conscience. "For me, voting my conscience as a legislator sometimes meant casting votes contrary to what I considered to be the will of the majority of my constituents, and on other occasions voting my conscience meant casting votes contrary to what party leadership desired," Boggs said. "I did not mean to suggest that my particular 'votes of conscience' were necessarily cast only when presented with a moral choice on a public policy matter."
Following up on Boggs' public statement of regret for his vote to retain the old Georgia flag, Blumenthal asked whether Boggs, prior to his nomination, had ever disavowed the vote.
"The vote occurred over 13 years ago and during the intervening years, no one has ever sought to discuss this vote with me publicly or privately until my consideration for the district court," Boggs replied. "Until my confirmation hearing, I have never publicly discussed the vote or my personal position on the matter."
Same-sex marriage
During his hearing, Boggs also had to explain his 2004 introduction of a constitutional amendment to bar same-sex marriages in Georgia and reject as legitimate same-sex marriages that legally had taken place in other states. Judiciary Committee Democrats representing states where same-sex marriage is legal had more questions for the nominee.
When Boggs introduced the resolution, he said the amendment was "premised on good conservative Christian values" and that "as a Christian and a lawyer" he urged his fellow legislators to support it. In that speech, Boggs also said amending the state constitution was necessary to prohibit challenges to a Georgia law already on the books banning same-sex marriage and to guard against "the dangers that we face with respect to activist judges."
Feinstein asked Boggs why he voted for the amendment. Boggs said he did so because "I was personally opposed to same-sex marriages …. The overwhelming majority of my constituents agreed with this position at that time as evidenced by the fact that when the constitutional amendment was presented to the public for a vote in November of 2004, 90 percent of the constituents from my legislative district who voted, voted in favor of the proposed amendment."
But, he added, "The issue looked different to me 10 years ago when I was serving in a very different role as a state legislator than it looks now, especially having been a judge for the last 10 years." Boggs said he introduced the measure because the House Speaker, Terry Coleman, a Democrat, asked him to do so "to demonstrate that there was support for this resolution within the state from among rural Democrats," 48 of whom subsequently voted with Boggs.
Feinstein and Leahy also targeted Boggs' references to activist judges in that speech, asking questions intended to clarify whether Boggs believed that three U.S. Supreme Court opinions written by Justice Anthony Kennedy in 1996, 2003 and 2013 that expanded civil rights for homosexuals made Kennedy an activist judge.
Wrote Boggs: "Judges have an obligation to apply precedent and uphold the Constitution, and if confirmed, I am committed to faithfully applying precedent," he said. That, he said, includes Kennedy's opinions in United States v. Windsor, 570 U.S. 12 (2013), Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996).
"I believe that my record as a state court judge for 10 years demonstrates my commitment to precedent and to treating all litigants who appear before me fairly, equally, and with respect and dignity," Boggs wrote.
Boggs said that he would now define judicial activism as "the act of judges who decide cases based on their own personal public policy preferences or who decide cases without regard to strict compliance with the law and precedent."
"I have no reason to believe that any judge who decides, under the constitution of a state or the United States, that gay and lesbian Americans have a right to marry or to have a marriage recognized is activist," he said.
Feinstein also pushed Boggs as to why, when he was campaigning for the Waycross Superior Court bench in 2004, that he told his constituents, "you don't have to guess where I stand—I oppose same-sex marriages …. I have a record that tells you exactly what I stand for."
Said Boggs: "I have no idea why I would have said that other than, like any other candidate for public office, I was running based on my record of community and legislative service. Given the jurisdiction of the court for which I was seeking office, this issue was not likely to come before me. Looking back, I regret that I was not more articulate and wish that I had better explained myself and the role of the office which I was seeking more artfully. This comment was made while I was running for judge, but also while I was still a state legislator, and I should have done a better job of separating the roles."
