Two GOP senators oppose pick for Michigan bench, urge Trump to nix it

Melissa Nann Burke
The Detroit News
Attorney Michael S. Bogren

Washington — Michigan attorney Michael Bogren's nomination to the federal bench could be in jeopardy as conservatives pummel how he has represented East Lansing in litigation over Country Mill Farms in Charlotte. 

Two key Republican senators say they intend to oppose Bogren in the Senate Judiciary Committee, where his nomination to serve on the U.S. District Court for the Western District of Michigan is pending. 

GOP Sens. Josh Hawley of Missouri and Ted Cruz of Texas are asking the White House to withdraw Bogren's nomination, accusing him of comparing Catholic beliefs to those of the Ku Klux Klan and exhibiting personal "hostility" toward religious faith. 

U.S. Sen. Josh Hawley, R-Missouri

A group of 70 conservatives signed a statement also urging the White House to withdraw the nomination, including former Attorney General Edwin Meese III; Tony Perkins, president of the Family Research Council; and Saul Anuzis, former chairman of the Michigan GOP.

Gary Glenn, president of the American Family Association of Michigan and a former state lawmaker, also called on Trump to pull the nomination. 

At issue is a case in which East Lansing barred Country Mill from participating in its farmers market in 2017 after its Catholic owner announced he would not host same-sex weddings at his farm, citing his religious beliefs.

Bogren, a lawyer in Kalamazoo, wrote in a legal brief "there can be no constitutionally sound argument that sincerely held religious beliefs would permit a secular business to avoid the prohibitions against racial discrimination or gender discrimination found in federal, state and local laws.”

Bogren offered an example of how a Ku Klux Klan member opposed interracial marriage “who ran a business similar to the plaintiffs’ business would not be able to invoke” the First Amendment free-exercise clause to avoid anti-discrimination statutes that apply to public accommodations if interracial couples were refused service.

Hawley, the former attorney general of Missouri, quoted the brief during a hearing last month and urged Bogren to recant the statements, saying "this kind of rhetoric demonstrating anti-religious animus is wrong." 

"I represent clients, not causes," Bogren told Hawley at the hearing. "Under my role as an advocate, it's different than what my role would be as" a judge. 

Hawley wasn't satisfied, saying after the hearing he found Bogren's views "offensive." 

"Michael Bogren's answers are not acceptable for a judicial nominee. We can and must do better," Hawley wrote in the National Review on Friday.

U.S. Sen. Ted Cruz, R-Texas

Cruz, who did not question Bogren during his hearing, also said he would vote no on Bogren.

".⁦@HawleyMO⁩ is right. The nominee didn’t just represent a client; at his confirmation he affirmatively declared 'there is no distinction' btwn Catholic teachings and KKK bigotry," Cruz tweeted. "I’m a NO. And POTUS should withdraw the nomination."

But some legal experts, in addition to the Wall Street Journal editorial board, say Bogren is being unfairly attacked for making legal arguments on behalf of his client, which he still represents, and was not expressing his personal views. 

"Mr. Hawley’s questioning is a precedent that conservatives will regret," the Journal 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."

The Journal highlighted the circumstances of Kyle Duncan, recently confirmed to the U.S. Court of Appeals for the Fifth Circuit, who as an attorney had challenged the Affordable Care Act's contraceptive mandate and whom Democrats opposed. 

Ed Whelan, president of the conservative Ethics and Public Policy Center, said Bogren's arguments "strike me as exactly what you'd expect from someone representing his client." 

"Bogren was making exactly the point of principle that I have made: To argue that a principle that applies to A also applies to B is not to 'compare' A to B or to assert that they are equivalent," Whelan wrote in a National Review blog

"Do conservatives really want to embrace the general proposition that arguments that a lawyer makes on behalf of a client should, without more, be held against the lawyer?" Whelan added.

"That’s a proposition that, apart from being unsound, could redound to the detriment of conservative nominees who have defended religious liberty or pro-life legislation in unpopular contexts."

Hawley had also raised concerns this year about Trump's nomination of Michigan native Neomi Rao to a federal appeals court over her views on abortion. After additional questioning, Hawley ultimately said he was satisfied and voted for Rao. 

On Bogren, "it didn’t seem to me that Hawley is going to budge," said Carl Tobias, who studies the judicial selection process at the University of Richmond School of Law.

Tobias said Bogren's nomination could be in trouble, but it’s not clear. A lot will depend on the dynamics when senators discuss him in committee, Tobias said.

He doubted the White House would withdraw the nomination, which doesn't happen often. 

"It could happen but I think they’ll let him make the decision. I think they’ll probably press ahead. Why not? What's to lose?" Tobias said. 

Some observers have suggested Bogren's nomination was part of a deal between the White House and Michigan's two Democratic senators, which can effectively veto district-court nominees if they don't agree with the pick. 

Sens. Debbie Stabenow, D-Lansing, and Gary Peters, D-Bloomfield Township, have not confirmed such a deal, but both voted in favor of former Michigan Supreme Court Justice Joan Larsen last year when Trump selected her to fill a vacancy on the U.S. Court of Appeals for the 6th Circuit.

Larsen has been put on Trump's short list for the U.S. Supreme Court. 

If Bogren withdraws or is voted down, "then the Democratic senators from Michigan will say, we’ll put up somebody else," Tobias said. 

"But that just shows you how much time is going to be wasted because you've got to restart the process, and you'd be lucky to have anybody nominated and confirmed this year. Then you're into 2020, an election year, which is messy."