Analysis Law and Policy

Why the Campaign Against Conservative Judicial Nominees Like Michael Boggs Matters

Jessica Mason Pieklo

NARAL Pro-Choice America is challenging the Obama administration's nomination of Michael Boggs, who has a long history of opposition to civil rights, to the federal district court in Georgia. But the organization's campaign is about more than just one nominee.

Late last year, as the Obama administration wrestled with Republicans over their continued obstruction of the president’s judicial nominations, reports surfaced of a deal brokered between the administration and Republican senators from Georgia on at least some federal court nominees. According to reports, the Obama administration agreed to appoint three nominees, pre-approved by Georgia Republican senators, to the federal district court of Georgia. In exchange, Republicans agreed to end their filibuster of the nomination of Jill Pryor to the 11th Circuit Court of Appeals.

The judicial candidates pre-selected by Republicans and later nominated by President Obama include Michael Boggs, currently a judge on the Georgia Court of Appeals, who has a long history of opposition to civil rights. Prior to his time on the Georgia Court of Appeals, Boggs was an attorney and then legislator who championed anti-choice causes. While serving in the state legislature, Boggs co-sponsored legislation to make even more severe the state’s existing parental involvement law. Under Boggs’ proposal, before a minor could have an abortion, a parent or guardian would have to accompany the patient in person and display a photo identification to prove their status as guardian/parent before the procedure could take place. Similar in effect to voter identification laws, the photo ID requirement would have disproportionately affected low-income individuals, minority communities, and the elderly, who are less likely to have state-issued photo identification cards. Boggs’ restriction did not include any exception for pregnancies resulting from rape or incest. Boggs also worked as a legislator to channel state funds into anti-choice crisis pregnancy centers by sponsoring a bill promoting “Choose Life” license plates.

Boggs’ hostility to fundamental civil rights is not confined to issues of reproductive choice. While a legislator, Boggs sided with segregationists and voted against a proposed change to the Georgia state flag to remove a Confederate emblem. Not surprisingly, Boggs also voted against recognizing marriage equality in the state.

It’s not surprising that Republican senators from Georgia would offer up Boggs’ nomination to the federal bench. What is surprising is that the administration would go along with it.

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Shortly after the deal clearing the way for Boggs’ nomination was reported, Democratic lawmakers from the state, led by long-time civil rights activist Rep. John Lewis, urged the administration to withdraw the nominees over concerns about their ideology and lack of diversity. On Wednesday, NARAL Pro-Choice America joined with Lewis and a growing list of organizations and lawmakers in opposing Boggs’ nomination.

“Michael Boggs actually believes that there is one definition of what it means to live your life as an American,” said Ilyse Hogue, president of NARAL Pro-Choice America, in a statement. “The thing is, that’s anti-American.”

Boggs’ nomination, and the deal that got him there, represents a step backwards for the administration’s goal of opening up the federal courts, and threatens to slide an already conservative federal bench further to the right. It’s no wonder civil rights advocates oppose his nomination and like the deal that got him nominated even less. “Americans don’t like backroom deals on the courts any more than they like backroom deals on laws that affect the most vulnerable,” Hogue told Rewire. “We want the administration to aggressively nominate qualified candidates. … We don’t believe Boggs is such a candidate.”

Hogue told Rewire that what’s ultimately at stake is more than just the Boggs nomination, and she said to expect to see more advocacy from NARAL on the courts. A focus on the state and federal judiciary must be a “critical thrust” for the reproductive rights movement, and NARAL specifically, she said.

“In the next decade, these courts are going to issue rulings on a host of issues that are important to us, including state-level attacks on reproductive choice,” Hogue said. “We just can’t risk having judges on the bench like this when there are so many issues that will define who we are as a nation.”

NARAL’s campaign, and the mounting pressure from civil rights advocates against Boggs’ nomination generally, represents an increased focus by progressives on the future of federal and state courts. This is an important thing to focus on: Georgia is part of the 11th Circuit Court of Appeals, a federal circuit that includes Alabama and Florida. Federal and state courts in this jurisdiction alone will consider the constitutionality of state-level reproductive rights challenges, attacks on immigrant rights, voting rights, and “stand your ground” laws, while electoral data suggests historically red-state Georgia is turning blue.

While an evolving liberal electorate may not seem to have an immediate impact on the state of the federal courts, peeking just to the east, to the neighboring Fourth Circuit Court of Appeals, encompassing North Carolina, South Carolina, West Virginia, Virginia, and Maryland, illustrates why these Georgia nominations matter. After decades of control by conservative senators, the Fourth Circuit was once considered the most “aggressively conservative federal appeals court in the nation.” But since 2009, following the confirmation of six judges to the Fourth Circuit under the Obama administration, even the Fourth Circuit is veering toward center, most recently striking as unconstitutional North Carolina’s anti-choice “Choose Life” license plates law that was almost identical to the one Boggs promoted as a lawmaker.

That may be the most maddening part of the Boggs nomination and the deal the administration struck with Republicans to nominate him. After decades of manipulation by conservatives, there is finally an opportunity to offer some balance, but the Obama administration is apparently passing on the chance.

Conservatives have succeeded in stymieing civil rights advances by using electoral gains to fill the federal courts with conservative justices and by using party politics to obstruct any nominee but the most centrist. While the Obama administration deserves praise for diversifying the federal bench, going along with conservatives on nominees who embrace anti-equality positions in jurisdictions where these issues may matter most is both bad politics and bad policy. And it comes at a time when the federal courts and this country can’t afford any more of either.

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