Boggs, a current judge on the Georgia Court of Appeals, has a long history of opposition to civil and reproductive rights, but he tried to minimize that record during his testimony. When questioned on his vote to keep the Confederate stars and bars on the Georgia state flag, he said he was just voting the will of his constituents. When asked why he had failed to fully supply the committee with information related to controversial measures like his support for a Georgia law that would have funded deceptive crisis pregnancy centers or another that would have required that all county courthouses display the Ten Commandments, he responded that a technical glitch—“old servers”—was to blame for those omissions.
Progressive groups and civil rights leaders have targeted Boggs, arguing that his votes on issues related to civil and reproductive rights should disqualify him from consideration for a lifetime appointment to the federal bench. Boggs’ nomination was reportedly part of a deal struck between the Obama administration and Republican senators from Georgia whereby the administration agreed to appoint three nominees pre-approved by Republicans to the federal district court in Georgia. In exchange, Republicans agreed to end their filibuster of the nomination of Jill Pryor to the 11th Circuit Court of Appeals. Pryor’s nomination is the second longest pending nomination in a jurisdiction labeled a “judicial emergency” due to lingering judicial vacancies. Among those pre-approved candidates was Boggs, who was one of seven nominees the committee considered Tuesday.
Senate Judiciary Committee Chair Patrick Leahy (D-VT) addressed the reported deal to advance Boggs’ nomination in his written testimony. “I have noted before that there is no ‘deal’ negotiated with me as chairman of the Senate Judiciary Committee or with any of the other senators,” said Leahy. “The constitutional responsibility of advice and consent resides with each individual senator, and there is no such thing as a binding deal that negates each senator’s responsibility to determine the fitness of a judicial nominee for a lifetime appointment.”
Leahy continued, “Moreover, the purpose of these hearings is to produce a record by which senators can make an informed decision about these nominees. The committee welcomes written testimony from anyone who has first-hand knowledge of a nominee’s fitness to serve as a judge.”
While Boggs tried to distance himself from some of his controversial positions, including a vote in favor of a constitutional amendment to ban same-sex marriage—he said his views on the subject “may or may not have changed” since that vote—he outright disavowed one piece of legislation he had previously supported: a measure that would have publicly listed the names of doctors who perform abortions. During his testimony, Boggs said he regrets that vote now that he’s learned that doctors who perform abortions are often the target of violence. He said that during his time as a state legislator, violence against abortion providers was not something he was aware of or considered. “In light of what I subsequently learned, I don’t think it would be appropriate to be listing the names of doctors,” Boggs said.
Sen. Al Franken (D-MN) pressed Boggs on that point, suggesting that Boggs’ explanation didn’t quite add up. “You were a state legislator at the time and you weren’t aware of any of the public safety issues that were involved around this whole issue?” Franken asked. “Doctors were murdered for this, and yet you were not aware of that at all?”
“I wasn’t,” Boggs said. “That was probably attributable to the fact that this was a floor amendment to a bill … and not something that I had an opportunity to study.”
“Thirty-seven years old. A state legislator. Were not aware of anything,” Franken responded. “OK.”
NARAL Pro-Choice America is among the groups leading the opposition to Boggs’ nomination. The group’s president, Ilyse Hogue, reacted to Boggs’ testimony before the judiciary committee in a statement:
The more we hear about Boggs, the more we find that he stands against the majority of Americans who want the freedom to make their own choices about when they start a family. Even today, Boggs spoke of a court case he adjudicated on reproductive rights that he failed to disclose earlier and exacerbated existing concerns regarding women’s ability to get a fair hearing in a Boggs court. Democratic Senators displayed a strong commitment to both the process and the substance of the concerns about Michael Boggs. But, we have to wonder what else might be out there that will reflect on those who confirm him to the bench and the ripple effect on the rights of those who are judged upon the bias he displayed as a lawmaker in his home state.
Tuesday’s hearing closed without a vote on Boggs’ nomination. The Senate Judiciary Committee is reportedly keeping the hearing record open for a week to allow time for senators to bring any follow-up questions. Once the record closes, the committee must vote on the nomination. Committee member Diane Feinstein (D-CA) told Boggs she may not be able to vote for his confirmation given his record, despite his assurances that he would respect precedents like Roe v. Wade and not allow any personal objections to abortion or marriage equality to color his rulings should those issues come before him as a judge. “I want you to know that for my vote I have to have certainty,” she said. “I don’t know quite how to get it in view of this record.”
Should Boggs’ nomination clear committee, he still must be approved by the full Senate, something Hogue and other progressive leaders are urging Senate Democrats to prevent. “The Obama administration fulfilled their end of the bargain by putting Boggs forward as a nominee and now is the time for the Senate to vote their conscience and keep him off the bench,” Hogue said in her statement.
So far, Senate Majority Leader Harry Reid (D-NV) has declined to say if he supports Boggs’ nomination or if he’ll allow a full Senate vote.