Senate Power Switch Could Revive Michael Boggs' Judicial Confirmation

R. Robin McDonald

Daily Report, November 6, 2014

The Republican takeover of the U.S. Senate this week might give new life to the stalled nomination of Michael Boggs, the Georgia Court of Appeals judge tapped for the U.S. District Court in Atlanta.

Boggs was nominated by President Barack Obama as part of a package deal with Georgia's U.S. senators, Republicans Saxby Chambliss and Johnny Isakson. The Democratic-controlled Senate Judiciary Committee has not moved Boggs' name to the full Senate, unlike six other nominees in the group, including two who have been confirmed. Democrats at a hearing for all seven of the nominees criticized Boggs' opposition as a state legislator to same-sex marriage and a change in the Confederate emblem on the state flag and his support for a bill registering doctors who perform abortions.

 

"I would be cautiously optimistic" about Boggs' nomination going forward, said Randy Evans, a McKenna Long & Aldridge partner with close connections to state and national Republicans. Evans, who co-chairs Gov. Nathan Deal's Judicial Nominating Commission, said he does not expect Boggs to get a confirmation vote during Congress's upcoming lame duck session while Senate Democrats still hold the majority.

 

Evans also said that, given the president's commitment to Boggs and the deal that led to his nomination, the Georgia appellate judge would have "a reasonable chance" of securing a newly constituted Senate Judiciary Committee's approval and then winning a simple majority of the Senate under relaxed filibuster rules adopted last year.

 

 

Boggs' longtime campaign counsel, Atlanta attorney Douglas Chalmers, declined comment on whether Tuesday's election had brightened Boggs' prospects for the federal bench. Federal bench nominees typically do not speak to the news media.

 

Republican U.S. Senate candidate David Perdue, who defeated Democrat Michelle Nunn for Chambliss' seat on Tuesday, last month signaled from the campaign trail that Boggs' nomination "deserves serious consideration." Perdue spokeswoman Megan Whittemore reiterated that on Wednesday.

 

"Given what we know about Judge Boggs' judicial record, he deserves serious consideration, but David still hopes to have an opportunity to meet with him personally."

 

Whittemore also said that, if the other Georgia judicial nominees now awaiting a confirmation vote by the full Senate are not confirmed by the time Perdue is sworn in next January, "He looks forward to meeting with them as well. He understands the strain that the ongoing vacancies are having on the courts, and he's hopeful it can be resolved quickly."

Marietta attorney Robert Ingram—one of six members of an ad-hoc committee of lawyers and judges who advised Chambliss and Isakson on their federal judicial picks—said the Senate's transition to a Republican majority "may very well revitalize [Boggs'] nomination."

"The president stood by him and said he was a worthy nominee and worthy of a vote in the Senate, which he never got," Ingram said. "The people who know him best—lawyers from all perspectives, plaintiffs' lawyers, defense lawyers, prosecutors … who have appeared before him or tried cases before him said he is smart and fair. That's what you want in a judge."

Charles Johnson, a partner at Atlanta's Holland & Knight who has been pushing for more diversity in appointments to the federal bench in Georgia, acknowledged that Boggs' nomination could be resurrected. For that to happen, Johnson said someone on the judiciary committee who has opposed Boggs would have to switch positions during the lame duck session or the White House would have to renominate him next year.

"If he's renominated, I think it's a whole new ballgame," Johnson said. Yet, because of Boggs' track record as a Georgia legislator, Johnson said there is still a question about whether the president will be comfortable with Boggs' appointment becoming part of his presidential legacy.

U.S. Rep. David Scott, a Democrat who represents Georgia's 13th Congressional District and has vigorously opposed Boggs' elevation to the federal bench, said he believes that when Boggs' nomination officially expires in December, the White House will not renominate him. "I think that Boggs' [nomination] is dead, and I think that is a battle that has been very courageously fought by a broad and wide and energetic coalition of Americans who have come together all across this country," he said. If the president were to renominate Boggs "it would be just plain stupidity," Scott added. "However, we've always got to stay vigilant … to always make sure that the victory remains a victory."

The deal in which Boggs was nominated ended 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.

The deal revived the nomination of Atlanta lawyer Jill Pryor to the Eleventh Circuit, which Chambliss and Isakson 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.)

The Senate confirmed Carnes in July and Pryor in September. The Senate is scheduled to vote to end a filibuster of May's nomination on Nov. 12. Three other nominees—Troutman Sanders attorney Mark Cohen, DeKalb State Court Judge Eleanor Ross (both nominated for seats on the Northern District bench) and Assistant U.S. Attorney Leslie Abrams (for a seat on the Middle District of Georgia in Albany)—are awaiting as yet unscheduled votes by the full Senate.

Boggs' nomination stalled after he became the beleaguered star of a group confirmation hearing of Georgia's federal judicial nominees last June. At that hearing, Boggs—whom Gov. Nathan Deal elevated from the trial bench to the state appellate court in 2012—quickly became the focus of Democratic senators. They 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.

Although Judiciary Committee Chairman Pat Leahy, D-Vt., declared Boggs' nomination dead in September, Boggs didn't withdraw his name, and the White House also has remained steadfast, signaling at a daily press briefing that the president was holding firm, despite national opposition from civil rights and reproductive rights groups.