Michigan judicial nominee Bogren withdraws from consideration

Melissa Nann Burke
The Detroit News
Attorney Michael S. Bogren

Washington — Michigan attorney Michael Bogren says he has written to the White House asking to withdraw his nomination to the federal bench, following growing Republican backlash over his record. 

Bogren declined to comment further when reached Tuesday by The Detroit News. 

Bogren's withdrawal comes after his nomination had faced unusual public rebuke by three Republicans on the Senate Judiciary Committee who accused him of comparing Catholic beliefs to those of the Ku Klux Klan and exhibiting personal "hostility" toward religious faith.

GOP Sens. Josh Hawley of Missouri, Ted Cruz of Texas and Thom Tillis of North Carolina have said they would vote against Bogren in committee, citing concerns about his views. 

In recent weeks, groups including the Catholic League, the Judicial Crisis Network and the Family Research Council had also urged President Donald Trump to pull Bogren's nomination to the U.S. District Court for the Western District of Michigan. 

Other conservative voices argued it was unfair to condemn Bogren for his advocacy on behalf of a client, the city of East Lansing.

"Lawyers have a duty to their clients, as I well know," Hawley countered in the National Review. "But a lawyer can give his clients a vigorous defense without stooping to personal attacks and vicious rhetoric."

At issue was a case in which East Lansing barred a Charlotte farm from participating in its farmers market in 2017 after its owner said he opposed same-sex marriage and wouldn't host such ceremonies on his premises, citing his Catholic beliefs. 

Bogren had signed onto a legal brief arguing "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.”

He 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 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 they demonstrated “anti-religious animus."

Bogren disputed Hawley's characterization of what he'd written, saying he wasn't arguing the KKK and Catholics are equivalent.

"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.

Bogren, board chairman and managing partner at the firm Plunkett Cooney in Kalamazoo, had the support of Michigan's Democratic U.S. Sens. Debbie Stabenow Lansing and Gary Peters of Bloomfield Township.

They had submitted his name to the White House last year after Bogren was interviewed and recommended by a bipartisan selection committee in Michigan.

Bogren was treated “unfairly” under questioning at his committee hearing and his positions skewed out of context, Stabenow said.

Michigan's senior senator said she had reiterated her support with the White House and Judiciary Chairman Lindsey Graham, R-South Carolina. 

"I just think it's very unfortunate. This is somebody we worked with. We had a bipartisan committee. We worked with the White House and put forward somebody who is a Republican, who is extremely competent and has a lifetime of legal service and (to) Michigan," Stabenow said Tuesday before the news of Bogren's withdrawal. 

"The questioning came out of right field and was, I thought, very unfair, and mischaracterized his positions and who he is." 

Despite three GOP senators' opposition, Stabenow said she expected the majority of Democrats on the Judiciary Committee would "accept the recommendations from myself and Sen. Peters."

It was unclear whether Bogren would have gotten a confirmation vote in committee. 

His name was not listed by the panel for a potential vote on Thursday, though other judicial nominees who also had a hearing on the same date in May were included on the committee's agenda for consideration. 

"He answered it very clearly that he was representing his client," Peters said Tuesday of Bogren. 

"He's fully qualified, and we got a lot of very positive feedback from people in Michigan who thought that he would make an excellent judge. ... But, ultimately, this is the president's nominee."

Partners from Bogren's firm wrote to Judiciary Committee leaders last week urging Hawley, Cruz and Tillis to withdraw their objections as "misinformed and incorrect." 

They said East Lansing is a longtime client of the firm and that Bogren was bound by rules of ethics and professional conduct to advocate zealously on his client's behalf.

"Mike was not equating Catholics with the KKK in any way, shape or form," the lawyers wrote.

"The comparison was discrimination based on race versus discrimination based on sexual orientation — a comparison that not only has been made by many respected counsel and jurists but has been countenanced by the Supreme Court."

They noted that Chief Justice John Roberts was questioned during his confirmation hearing about his representation of clients, and he said he had never declined to take a client for ethical or moral reasons.

“I appreciate that may sound like I’m a hired gun. I think that’s a disparaging way to regard what is in fact an ennobling truth: That lawyers serve the rule of law," said Roberts, with whom Hawley once clerked. 

Roberts also said "it was my view that lawyers don’t stand in the shoes of their clients, and that good lawyers can give advice and argue any side of a case."

Margot Cleveland, Bogren's cousin, writes from a conservative perspective on issues of religious freedom, contributing to publications such as The Federalist, National Review and the Washington Examiner.

She has defended Bogren extensively online, saying he's a Catholic Republican who also handled a religious freedom case involving a housing association in northern Michigan that prohibited non-Christians from buying a home there.

She was disappointed he decided to withdrawal, she said.  

“There is no anti-religious bias in Mike. He is an amazing attorney, and he’s taken both sides on issues of religious liberty. I think what it really comes down to is, how are we going to be looking at nominees on religious liberty issues in the future?” said Cleveland, an adjunct professor in the College of Business at the University of Notre Dame.

“I think it is an unfair situation that has taken legal advocacy and presented it in a very unfair light: Assuming that someone who has been a zealous advocate cannot also hold views contrary to what they are espousing in court.”