Posted by: Patrick Allen Foster | May 15, 2014

Why is President Obama Nominating Judges Like Michael Boggs?

When I first heard, via this Althouse post, about the President’s nomination of Michael Boggs to the US District Court for the Northern District of Georgia, I was surprised and confused. Boggs is a judge on the Georgia Court of Appeals, and previously, he was a trial judge for eight years on the Georgia Superior Court. Before that, he was a member of the Georgia House of Representatives, from 2000 to 2004.

He is a Democrat (or was, anyway, when he was elected to the Georgia legislature), but he’s the type of Democrat that makes ThinkProgress and Daily Kos not happy. In the Georgia legislature, Boggs championed an amendment to the Georgia constitution to ban gay marriage (he urged his fellow legislators “to stand up for things that are common-sensical, things that are premised on good conservative Christian values.”) He voted twice to keep the Confederate battle emblem as part of Georgia’s state flag. He backed a proposal that would require Georgia physicians to post online the number of abortion-related procedures they had performed over the past ten years. (FWIW, Boggs said during his confirmation hearing this week that “he now sees the vote was a mistake.” And, “In the hearing, he tried to draw a hard line between his opinions as a state lawmaker and his rulings as a judge.”)

In any case, some groups in Obama’s base are not happy about this nomination. NARAL Pro-Choice America, the National Organization for Women, and the Human Rights Campaign all oppose Boggs’s nomination. Presumably, he would be unacceptable (to various stakeholders) as CEO of Mozilla; but the Administration thinks he should receive a life-time appointment as a federal judge.

So, I was surprised and confused by this nomination.

This post by Jamelle Bouie helps make the situation clearer: “In return for nominating Judge Julie Carnes to the 11th Circuit Court of Appeals and giving Boggs (and two other Republican-picked attorneys) a place on the Northern District Court of Georgia, Sens. Chambliss and Isakson would end a more than two-year hold on Jill Pryor’s nomination to the 11th Circuit.”

Ok. So, one way of reading this deal is: Obama agreed to nominate someone like Boggs to a district court post in return for being able to get Jill Pryor on the appellate court. From a president’s perspective, and in terms of long-term impact on the law, appellate court appointments are more important than district court appointments.

(As part of the deal, the President is also nominating Julie Carnes, a Bush 41 district court appointment, to the same appellate court; but consider that Pryor is 13 years younger than Carnes.)

But why do Georgia’s Senators Chambliss and Isakson get to exercise effective veto over President Obama’s nominees to the 11th Circuit and the Northern District of Georgia? Tradition! Stupid, stupid Senate tradition. Tradition aggravated and enabled by Democratic Sen. Pat Leahy, chairman of the Senate Judiciary Committee. Once again, Slate’s Bouie:

It should be said that, in its original use, the blue-slip was a simple note on the acceptability of the nominee. But, as traditions are wont to do, its role changed with the circumstances. Under Mississippi Sen. James Eastland, for example, it became a tool for Southern Democrats desperate to keep pro-Brown judges from the courts. Indeed, during Eastland’s tenure as committee chairman any blue-slip in opposition to a nominee was an automatic veto.

After Eastland’s retirement in 1978, subsequent chairs abandoned the practice of an automatic veto, giving weight to the blue-slip—“one negative blue-slip would be ‘a significant factor to be weighed,’ ” said then-Sen. Joe Biden when he led the committee—but treating it as a recommendation, not a final judgment. Still, the general practice was that one positive blue-slip was needed for a nominee to move forward.

That changed in 1995 when Republicans took the Senate. Eager to stymie the Clinton administration, Republicans required two blue-slips for a nominee to go forward, which made it easier to kill Clinton’s nominees. With the election of George W. Bush, however, Republicans reverted to the one-slip rule, in order to expedite the process. It flipped again in 2001 after Sen. Jim Jeffords defected from the GOP caucus, giving Democrats control of the Senate, and then again in 2003, when Republicans won the chamber and announced a zero blue-slip rule, allowing hearings on nominees even if there wasn’t a note in favor of the candidate.

It’s in response to this that Leahy restored the two blue-slip rule when Democrats took the Senate in 2006 and he became chairman of the Judiciary Committee. Yes, the single-senator veto slows the pace of nominations, but, he argues, it’s more consistent than the haphazard approach of the past.

The problem, of course, is that it empowers Republican obstruction and gives substantial leverage to GOP senators…

I suppose that’s a feature or a bug, depending on your perspective.

I don’t like the current arrangement for appointing federal judges. I don’t like how much power over the process this arrangement gives to the Senate as a body and to individual senators. The Constitution vests the appointment of federal judges with the president. The Senate’s advise-and-consent power is supposed to be a subsidiary function, essentially a double-check to keep the president honest and prevent the most egregious forms of cronyism and corruption. I see nothing in the Constitution’s text or in the writings of the Framers and Founders to indicate that home-state senators should be exercising anything like the influence that they currently have over judicial appointments. As I have said before, I believe that all judicial nominees deserve a reasonably prompt up-or-down vote by the full Senate. Were it in my power, I would abolish the use of negative blue slips to block a judicial nomination.

But, it seems that this is the system we have right now:

All along, the White House has quietly stood by Boggs. It’s not because Obama necessarily wants him on the federal bench. It’s because Boggs is part of an all-or-nothing package of six judicial nominees that the president signed off on last summer with Georgia’s Republican senators, Saxby Chambliss and Johnny Isakson.

The White House’s thinking is that Democrats get some judges they like in the package, Republicans get some too, and all six empty seats get filled. Everyone wins. Not that the deal was great for Obama: Four of the six nominees are GOP picks, and only one is black in a state with a large black population. But still, the White House can say it filled some long-vacant seats.

Well, if this batch of appointments helps relieve some congestion at the appellate court level, it can’t be all bad.

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