Tuesday, October 14, 2014

Senate Candidates Differ on Boggs Nomination

R. Robin McDonald
Daily Report, October 14, 2014

Democratic senatorial candidate Michelle Nunn says the stalled nomination of Georgia Court of Appeals Judge Michael Boggs to the federal bench in Atlanta is "problematic" and one that she has "serious reservations" about.

Republican opponent David Perdue, on the other hand, says that, based on Boggs' judicial record, "He deserves serious consideration."

The two candidates, who are vying to fill the seat being vacated by Republican U.S. Sen. Saxby Chambliss, are virtually tied in recent polling, with the Libertarian candidacy of Amanda Swafford creating the possibility of a runoff. Nunn was asked her views on Boggs during a raucous debate at the Georgia National Fair in Perry last week.

"I have real concerns about it, as a number of other senators do," Nunn said. "I have said that I would, as any senator would expect to do ... have a conversation with him … but I have real, serious reservations about him and his nomination."

In a follow-up response to the Daily Report, Nunn said that she shared the concerns about Judge Boggs' record expressed by several Georgia leaders, as well as senators from outside the state. "That said, as a senator, I would extend him and every other judicial nominee the courtesy of a face-to-face meeting to discuss their record and judicial philosophy," she said.

Perdue was not asked at the Perry debate to address Boggs' nomination. But Perdue spokeswoman Megan Whittemore told the Daily Report afterward that, if elected, Perdue would "do his own due diligence."

"Based on what we know about Judge Boggs' judicial record, he deserves serious consideration," she said, "but with any judicial nominee David would want to speak with them personally to hear their views on the Constitution and how they would run their courts."

The chairman of the U.S. Senate Judiciary Committee signaled shortly before Congress adjourned last month that Boggs' nomination was dead because a majority of committee members did not support sending it to the Senate floor for a confirmation vote. Boggs' nomination stalled after he became the beleaguered star of a group confirmation hearing of seven federal judicial nominees from Georgia last June.

At that hearing, Boggs—whom Gov. Nathan Deal appointed to the state appellate court in 2012—quickly became the focus of Democratic senators, who grilled him on the conservative—and often controversial—stances he had taken while a Georgia legislator from 2001 to 2003. Boggs fielded questions on his support for a constitutional amendment barring same-sex marriage that he had introduced in the Georgia Senate, his votes to retain the Confederate battle emblem on the Georgia flag and his support for bills restricting abortions and requiring that the names of physicians who performed them be published on an Internet registry.

At the hearing, Boggs disavowed some of his more controversial stances that had generated national opposition to his nomination. In response to questions from Democratic senators, Boggs said he personally was "offended" by the former state flag, that his vote to establish a public registry of doctors who performed abortions was not appropriate and that he no longer believes that a judge who might overturn Georgia's same-sex marriage ban would be engaging in judicial activism.

Boggs was nominated by President Barack Obama to the Northern District of Georgia bench last year as part of a package deal the White House cut with Chambliss and U.S. Senator Johnny Isakson to end a stalemate that had left vacancies for two Georgia-based judgeships on the U.S. Court of Appeals for the Eleventh Circuit and three posts on the Northern District bench in Atlanta.

Boggs' nomination gave new life to the nomination of Atlanta lawyer Jill Pryor to the Eleventh Circuit, which the two senators had refused for two years to approve. In exchange for the senators' agreement to return blue slips—a courtesy where home state senators signal their approval of a judicial nominee—on Pryor's Eleventh Circuit nomination and the nomination of Atlanta attorney Leigh Martin May for a seat on the Northern District of Georgia bench, the White House allowed Chambliss and Isakson to select candidates for the second Eleventh Circuit seat and three Northern District slots. (A fourth post opened on the Northern District when Obama nominated then-Chief Judge Julie Carnes to the Eleventh Circuit.)

Carnes and Pryor were confirmed over the summer. May's nomination is not scheduled for a vote until after the November election and will require a cloture vote to break a Senate filibuster. The nominations of two other candidates in the package deal to the federal bench in Atlanta—Troutman Sanders partner Mark Cohen and DeKalb County State Court Judge Eleanor Ross—and the nomination of Assistant U.S. Attorney Leslie Abrams to the Middle District bench in Albany are awaiting as-yet-unscheduled votes by the Senate.

Shortly before Pryor's confirmation last month, Senate Judiciary Committee Chairman Patrick Leahy blamed Republicans for confirmation delays, saying they had filibustered Pryor's nomination in spite of the deal and were "delaying her vote for the sake of obstruction."

Nunn, in a statement to the Daily Report, blamed "the current dysfunction in Washington" on "the inability of the Senate to confirm judges to fill vacancies in a timely manner" and promised to work with members of both parties "to ensure that the judicial nominees of every president I serve with are fairly considered and voted upon."

Perdue's campaign, in an email to the Daily Report, singled out Democratic Senator Majority Leader Harry Reid and Senate Democrats for derailing Georgia's bipartisan agreement that would have put Boggs on the federal bench. Said Perdue spokeswoman Whittemore: "While there was a bipartisan agreement in place for judicial nominations, it was ultimately derailed by Senate Democrats. As majority leader, Harry Reid has been nothing but an obstructionist preventing Congress from doing its job. David is working to create a Republican majority in the Senate, and if successful he will then have a strong voice in judicial nominations and advocate for a confirmation process that works."

The current nominations will expire in December if the Senate does not vote to confirm them, meaning the White House would have to renominate anyone it still wishes Congress to consider after the new congressional term begins in January.

Whittemore said that if Perdue and his fellow Republicans are successful in taking over the U.S. Senate, "The president will have to face a new political reality while making his nominations. Hopefully, that new reality will force the president and Senate Democrats to work with Republicans to confirm qualified judges and begin reducing the growing caseload."

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