Michael Boggs, President Barack Obama’s controversial judicial nominee, stayed on the defensive Tuesday during his Senate confirmation hearing, facing pointed questions over his past votes as a legislator.
Even though Boggs is an Obama nominee for the U.S. District Court in Atlanta, he is strongly opposed by liberal groups because of his votes against abortion rights, same-sex marriage and the removal of the Confederate battle emblem from the state flag.
Boggs, now a judge on the Georgia Court of Appeals, told members of the Senate Judiciary Committee in Washington that he regretted some of those votes while serving in the state House in the early 2000s. For example, he said he voted against his conscience — and for the will of his constituents — when he opposed removing the Confederate emblem from the flag.
“I’m glad the flag was changed,” Boggs said of the 2001 vote. “It reflected something Georgia could do better with.”
Whether Boggs can clear the Senate Judiciary Committee remains to be seen. A number of Democrats on the committee told Boggs they were troubled by his record.
Boggs was one of seven Obama nominees to appear before the committee on Tuesday:
- U.S. District Court Chief Judge Julie Carnes and Atlanta lawyer Jill Pryor are nominated to the federal appeals court in Atlanta.
- DeKalb County Judge Eleanor Ross and Atlanta lawyers Mark Cohen and Leigh Martin May are nominated, along with Boggs, to the U.S. District Court in Atlanta.
- Federal prosecutor Leslie Abrams is nominated to the U.S. District Court in Macon.
All except Boggs appear to be safe bets for committee confirmation. The package of nominees are part of a compromise worked out between the White House and Georgia’s two Republican senators. A vote is expected in the coming weeks.
Boggs suggested that some of his controversial votes reflected his constituents’ views, said University of Richmond law professor Carl Tobias, who closely follows judicial nominations. “The question is whether he persuaded enough senators to secure a majority committee vote and, thus, move to the floor.”
Throughout his testimony, Boggs stated he would not let his personal beliefs or his Christian faith guide his judicial decision-making.
Boggs said he has found it comforting over the past decade he has served as a judge that he did not have to gauge public sentiment like he did while a legislator. “You don’t stick your finger in the wind to see what is popular,” he said. “Popularity is not the test of whether justice has been done.”
On abortion, he said, he would adhere to Roe v. Wade, the decision legalizing abortion rights. “I am committed to following the rule of law.”
But U.S. Sen. Diane Feinstein, D-Calif., said the committee has heard the same pledges before from Supreme Court nominees. “Then, bingo, it all changed,” she said. “It makes us feel very foolish to believe what we hear.”
She then told Boggs, “I want you to know that for my vote I have to have certainty. I don’t know quite how to get it in view of this record.”
Boggs was questioned repeatedly over his vote supporting an amendment that would have posted on the Internet the names of abortion doctors and how many times they had terminated a pregnancy.
Boggs said he followed the wishes of his southeast Georgia district, describing it as “a very conservative and pro-life constituency.”
But he said he now regrets that vote and believes the amendment was “ill-conceived.”
U.S. Sen. Richard Blumenthal, D-Conn., thanked Boggs for his candor. But he and other senators asked Boggs whether he had thought about the public-safety implications of disclosing the names of abortion doctors, given the fact that some abortion clinics had been bombed and some doctors murdered.
At the time, Boggs said, he did not consider the implications and was unaware of the dangers.
“I find it frankly incredible you would not understand this amendment would put doctors at risk,” Blumenthal said.
Boggs also was asked about his support for a resolution that allowed Georgia voters to pass a constitutional amendment banning same-sex marriage.
In 2004, that was “my personal opinion,” Boggs said. “My position on that … may or may not have changed since that time, as many people’s have over the past decade.”
He said he would not support such an amendment now. While a trial judge in Waycross, he said, he allowed a lesbian couple to adopt a child from foster care, saying he handled their case like he would for any other couple.
Boggs called his deliberations before casting his vote on the state flag “terribly agonizing.”
“I was offended by the flag,” he said, adding that he knew the Confederate emblem was used by groups espousing “overt racism.”
But U.S. Sen. Al Franken, D-Minn., said he found inconsistencies in Boggs’ explanations. In a recent meeting, Franken noted, Boggs told him his vote supported the will of his constituents who wanted a referendum to let them decide what the flag should look like.
But Boggs cast two votes against removing the Confederate emblem, and on one of those occasions there was no referendum attached to the measure, Franken noted. And Boggs told a local newspaper he voted the way he did because his constituents opposed the removal of the emblem, Franken said.
“I hear wonderful things about you,” Franken said. “The thing that gave me some pause is that we had this meeting, and in this meeting you gave me a slight misrepresentation on this.”
U.S. Rep. David Scott, an Atlanta Democrat who opposes Boggs’ nomination, said Boggs’ testimony did not change his position.
South Georgia Democrats and then-Gov. Roy Barnes paid a political price for changing the state flag in 2001, Scott said. “I see this guy as someone who took the coward’s way out,” Scott said. “It would be shameful if the Senate doesn’t reject Michael Boggs.”
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