Early in the Trump Administration, a judicial nominee with strongly conservative credentials faced critical questioning from senators regarding a motion he had filed in a case involving LGBTQ rights. In response to questioning, he noted:
“The views I express in litigation are those of my clients.”
The nominee in question is Howard Nielson, the Utah attorney whose involvement in defending California’s Proposition 8 was deeply controversial. Nielson was ultimately confirmed this year by a narrow margin but his battle has a curious coda. Just as Nielson took the bench in Utah, another nominee, Michael Bogren, withdrew his nomination to a U.S. District Court seat. The reason: his defense of an East Lansing ordinance that barred businesses that discriminated against LGBT customers from taking part in city events.
Bogren went down, essentially, for engaging in the practice of law, which requires lawyers to make reasonable arguments on behalf of their clients. Others on both sides of the aisle, including Bogren himself, have pointed out the absurdity of the attacks on Bogren. Rather than reiterate those points, I’ll focus on a unique irony.
Bogren’s nomination was the result of a detailed negotiation between the White House and Michigan’s Democratic senators. The negotiations lasted over two years before they produced the nominations package of Bogren and Judge Stephanie Davis (nominated for the Eastern District of Michigan). Now, Bogren’s withdrawal costs the White House half of their deal. More specifically, it costs them the conservative half of the deal.
Bogren, derailed by Sen. Josh Hawley and other conservatives, was a member of both the Federalist Society and the Republican National Lawyers Association. Furthermore, he has contributed solely to Republicans including Presidential candidates John McCain and John Kasich, and the Republican National Committee. In contrast, almost every single Republican who objected to Bogren had no problem approving Davis, who conducted election protection for the Obama campaign and served on the transition committee of former Detroit mayor Dennis Archer.
This is not to say that Davis, who has an impressive resume, should be opposed. Rather, it is to note the absurdity of judging a nominee’s entire career by three lines in a legal brief. It is also telling that Bogren was opposed for defending a municipal government’s right not to support businesses who discriminate, and not for, in another case, representing the Bay View Association, a Methodist resort association, which barred a Jewish buyer from purchasing property.
In any case, Bogren is not likely to be forgotten. Democrats are sure to chant his name as a talisman the next time Republicans complain that a Trump nominee is being judged on the basis of his advocacy rather than his ability.