President Donald Trump faces a growing Republican rebellion on one of his judicial nominees, throwing his confirmation into doubt.
Michael Bogren, who Trump nominated to serve on a federal district court, is already opposed by three Republicans on the Senate Judiciary Committee — Josh Hawley of Missouri, Ted Cruz of Texas and Thom Tillis of North Carolina — and others could emerge, according to multiple GOP sources. It’s an unusual conflict for a GOP-controlled Senate, which has breezed through nominees.
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Their complaint centers on a belief that Bogren is no friend to religious liberty after he signed a brief while defending the City of East Lansing against a Catholic couple that opposed same-sex marriage.
“To repeatedly compare this family to the KKK, to compare them to radical Muslim imams who want to take rights away from women… these are inflammatory remarks and they were meant to be inflammatory,” said Hawley, who has been the most vocal opponent of the nominee to sit on the District Court for the Western District of Michigan.
Key conservative advocacy groups, like the Judicial Crisis Network, Heritage Action and Conservative Action Project, have also criticized or come out against Bogren, which could further dampen GOP support.
If Trump ends up withdrawing the nomination or it fails on the Senate floor, it would be an embarrassment to the president and a rare stumble in his push to reshape the judiciary. The episode also underscores the power of social conservative activists to threaten even Republican judicial nominees who don’t completely toe the party line.
But unlike most other Trump judicial nominees, Bogren could still be confirmed with backing from Democrats.
A managing partner at the law firm Plunkett Cooney, Bogren has support from his two Democratic home-state senators, Debbie Stabenow and Gary Peters of Michigan.
“This is somebody with a 30-year legal career who was strongly recommended by a bipartisan committee in Michigan and he’s a Republican nominee,” Stabenow said. “I’m surprised that there would be this kind of reaction to him.”
The case that sparked the controversy involves a Catholic couple that was barred from the city of East Lansing’s farmers market after the couple refused to host a same-sex marriage on their farm, citing religious beliefs. The couple sued the city in response.
In its motion to dismiss the case, the city argued, as an analogy, that a member of the White Camelia Knights of the KKK, which opposes interracial marriage, would not be able to refuse service to an interracial couple.
“An adherent of that particular brand of Christianity who ran a business similar to the plaintiffs’ business would not be able to invoke the free exercise clause to avoid the antidiscrimination provisions of Federal, State and local laws that apply to public accommodations if interracial couples were refused service,” the motion said.
The motion also noted some imams believe that women should not drive but that if someone adhered to that belief and taught driver’s education, he would not legally be able to refuse female customers because of his religion.
Bogren defended the analogies at a tense confirmation hearing, arguing that he merely wanted to make the point that “religious beliefs trying to justify discrimination, if extended to sexual orientation which the City of East Lansing protects, could be used to try to justify any other sort of discrimination.”
But Bogren’s testimony did not sit well with some Republican members of the committee or social conservative activists. Hawley grilled him during the hearing, and Cruz and Tillis later cited Bogren’s performance in the committee as their reason for voting against him.
“I get the idea that we should not necessarily oppose a judicial nominee because they advocated for a client,” said Tillis. “But when he was given an opportunity to say, ‘Can you really rethink the arguments that you use’ and he goes back and doesn’t really respond and says he stands by them, if nothing else it speaks to temperament.”
Hawley and some other Republicans have expressed concerns about Bogren to the White House and it’s unclear if the administration will stand by the nomination. The White House did not respond to a request for comment.
Some key Judiciary Committee Republicans are backing Bogren, including Chuck Grassley (R-Iowa). Meanwhile, Senate Judiciary Chairman Lindsey Graham of South Carolina and GOP Sens. John Kennedy of Louisiana and Marsha Blackburn of Tennessee said they remained undecided.
Stabenow and Peters both said they remained optimistic that Bogren would be confirmed and defended him for merely speaking on behalf of his client in the brief. Peters accused Hawley and Cruz of mischaracterizing the brief.
The Bogren fight also highlights how Democratic senators still maintain some small influence over judges through the use of “blue slips” on district court nominees.
Under the blue-slip policy, a home-state senator can effectively veto a nomination if he or she does not approve. The blue-slip policy previously applied to both appellate and district court nominees, but Republicans changed it to only apply to the less-influential district court nominees.
Conservatives cite the blue-slip process as among the reasons the White House has gotten into this mess in the first place.
“Bogren was approved by the two Democrat senators from Michigan — it should come as no surprise that conservatives have grave concerns,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network. “He is the product of a failed ‘blue slip’ process that needs reform.”
Unlike many Trump judicial nominees, Bogren is not actively involved in the conservative Federalist Society and does not have the backing of conservative judicial groups willing to spend money to ensure he gets confirmed.
“Parts of the conservative movement are opposing him and other parts of the conservative movement are just not weighing in one way or the other because they view him as a Democrat nominee,” said one conservative leader. “If the Democrats in Michigan want to get him confirmed they can drag him along the finish line on their own.”
Not all on the right are pleased with the pile-on.
Hawley has drawn criticism for the attacks from the conservative Wall Street Journal Editorial Board, which called his legal reasoning “short-sighted.”
“Mr. Hawley’s questioning is a precedent that conservatives will regret,” the Editorial Board wrote. “If nominees can be disqualified for every argument they make for a client, conservative judicial nominees will soon find themselves blocked from judgeships for defending religious liberty.”
It’s also the second time that Hawley has taken friendly fire for scrutinizing a Trump judicial nominee.
Earlier this year, Hawley voiced concerns about Neomi Rao’s views on abortion — prompting a backlash from JCN, which threatened to launch a $500,000 ad buy against the freshman from Missouri. Hawley ultimately voted for Rao to sit on the powerful D.C. Circuit Court of Appeals.
This time, Hawley is unlikely to back down. And he insists the Journal is wrong.
“You can represent a client very vigorously without stooping to personal insults and to really vicious, in this case, anti-faith attacks,” he said.