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Bogren: 'Unfounded personal attack' derailed judgeship bid

Melissa Nann Burke
The Detroit News
Attorney Michael S. Bogren

Washington — Michigan attorney Michael Bogren said he withdrew his nomination to the federal bench after Senate Judiciary Committee staff told him there was "no path to confirmation."

In a Wednesday statement, Bogren pushed back against accusations by Republican Sen. Josh Hawley of Missouri and others who claimed Bogren had compared Catholic beliefs to those of the Ku Klux Klan and exhibited personal "hostility" toward religious faith.

Bogren said the derailment of his nomination was the "direct result of gross mischaracterizations" of his legal defense of East Lansing against a Catholic couple who opposed same-sex marriage and wanted to participate in the city's farmer's market.

"I have been accused of being anti-religious, anti-Catholic and a religious bigot. Those who know me — my family, my friends, my partners at Plunkett Cooney, my clients, the judges before whom I practice, and the attorneys involved in cases I litigate — know these claims to be untrue," Bogren said. 

"The claim is I compared Catholics to the KKK. That claim is utterly untrue," Bogren added. 

"What I argued on behalf of my client is the First Amendment does not create an exception to anti-discrimination laws based on religious beliefs — whatever those religious beliefs might be. It was not my intention to compare Catholics to the KKK, and the brief cannot be fairly read as doing so."

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 wouldn't host same-sex weddings on his premises, citing his Catholic beliefs. 

Bogren in a legal brief argued "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.

After Hawley criticized the brief at a hearing last month, groups including the Catholic League, the Judicial Crisis Network and the Family Research Council urged President Donald Trump to pull Bogren's nomination to the U.S. District Court for the Western District of Michigan. 

Hawley, the former attorney general of Missouri, said Wednesday that Bogren's decision to withdraw his name from consideration was the "right result." 

"I look forward to getting back to confirming pro-Constitution judges. I think that religious liberty is incredibly important guarantee in the First Amendment, and this is really what this is about," Hawley said at the U.S. Capitol. 

"To say that this family following the teachings of their church and the Scripture, that there's 'no distinction' — that was his phrase — between them and the KKK, that I think is really beyond the pale."

Defenders of Bogren said it was unfair to condemn him for zealous advocacy on behalf of a client. Hawley countered that lawyers can defend a client without resorting to personal attacks and "denigrating" religious faith. 

"Vigorously defending your clients? Absolutely," Hawley said.

"But the way he went about doing it — over and over and over.  Look, he knew that these comments were inflammatory, and he meant for them to be inflammatory. That's why he went to the media with them, that's why he used them in litigation — for their shock value. So it was a legal strategy that I think was wrong."  

Bogren addressed this in his statement, defending the manner in which he argued for East Lansing's position and saying Hawley's argument is "a distinction without a difference."

"The ethical rules of conduct that apply to lawyers in Michigan require a lawyer to seek the lawful objectives of a client through reasonably available means permitted by law, and to zealously advocate the client’s best interests," said Bogren, managing partner of Plunkett Cooney in Kalamazoo. 

"If my legal arguments or language have caused offense, that was not my intention. My intention has only been to vigorously advocate in the best interests of my client."

Bogren said he has "paid a heavy price for complying with my ethical responsibilities" but his family has paid a higher one.

"My family had to witness an unfounded personal attack on me, as well as ensuing personal attacks in the media," Bogren said. "It is truly unfortunate that what used to be a dignified process has sunk to this level.”

Bogren 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.

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

"It's really outrageous the way he was treated. He was eminently qualified and broadly supported in Michigan, and highly recommend by our committee," Stabenow said Wednesday. "We're figuring out next steps at this point." 

Bogren’s withdrawal is a loss for the judiciary and the “process," said Carl Tobias, who studies the judicial selection process at the University of Richmond School of Law.

“This will come back to haunt Republicans. They are the ones who always say their nominees shouldn’t be judged by the people or positions that they represent. I think this just makes it difficult for other people like Bogren who are consensus candidates,” Tobias said.

David E. Bernstein, a professor and executive director of the Liberty & Law Center at George Mason University’s Antonin Scalia Law School, called Hawley’s win a “triumph of demagoguery.”

“It's going to make Trump and future presidents more reluctant to nominate anyone who has ever represented a controversial client, from either side of the political spectrum, as it's shown that demagoguing a lawyer’s efforts for his client, and indeed wildly misrepresenting the content of those efforts, can work to derail a nomination,” Bernstein said.