Conservatives have long maintained that they have no litmus test for judicial nominees. Rather, the right claims, it is a question of judicial philosophy and whether a future judge or justice is an originalist—a man or woman dedicated to interpreting the Constitution consistent with its original understanding. But over the course of the last three weeks, a shortsighted faction on the right has unwittingly argued itself into a scorched-earth litmus test unrelated to judicial philosophy.
Freshman Republican Sen. Josh Hawley unveiled this new litmus test during questioning of President Trump’s nominee for the Western District of Michigan, Michael Bogren, who happens to be my cousin. At the Senate Judiciary Committee’s hearing held on May 22, 2019, to consider Bogren’s nomination, Hawley condemned the Michigan lawyer for his advocacy on behalf of his client, the city of East Lansing, in a case challenging the city’s decision to bar a family-owned orchard from the local farmer’s market because it refused to rent its facilities for same-sex marriage celebrations.
“You think those things are equivalent. You think that the Catholic family’s pointing out the teachings of their church is equivalent to a KKK member invoking Christianity [to justify discrimination],” Hawley barked at Bogren. “Respectfully, that is not what I said,” Bogren responded.
The Right Stands Up for Bogren
Several conservative commentators added their voice to Bogren’s drowned-out denial, pushing back against Hawley’s misrepresentation of Bogren’s legal argument. Notwithstanding Hawley’s spin, Bogren did not compare Catholics to the Klu Klux Klan. Rather, as Ed Whelan stressed in countering Hawley’s tirade, “To argue that a principle that applies to A also applies to B is not to ‘compare’ A and B or to assert that they are equivalent.”
Whelan and others likewise pointed out the fallacy of holding lawyers responsible for the positions they advocate for their clients. Bogren “was advancing legal arguments on behalf of his client, not expressing his personal views,” Whelan wrote, adding that his “arguments strike me as exactly what you’d expect from someone representing his client.”
The editorial board of the Wall Street Journal concurred: “An acute danger in these polarized times is that partisans will trample core American principles to achieve their political goals. One such principle is that every American deserves legal representation, and a corollary is that lawyers don’t have to agree with their clients to represent them.”
Bogren’s partners at Plunkett and Cooney also stressed this point in a letter sent late Friday to Sens. Lindsey Graham and Dianne Feinstein in defense of Bogren. “Mike was retained by his client to provide a defense,” they wrote. “As a result, he was bound by the Rules of Ethics and Michigan’s Rules of Professional Conduct, both of which require zealous advocacy on his client’s behalf.”
In their letter, Bogren’s partners also pointed out that Justice John Roberts, for whom Hawley clerked, had also been “asked questions during his confirmation hearing about his representation of clients on various issues.” As a nominee, Roberts testified that he had never turned down a client for ethical or moral reasons, stating: “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.”
Conflating a Lawyer’s Job With His Legal Philosophy
Attempts to counter this concern actually prove the problem. Ramesh Ponnuru in “The Case Against Bogren” wrote: “Would conservative senators be obligated to look past a judicial nominee’s past work for Planned Parenthood — arguing, let’s say, for a constitutional right to subsidies for abortion — because everyone has a right to a lawyer? Would a conservative White House be so obligated? What if the nominee had spent much of his career providing such representation? Or — if the social-issue context is too much of a distraction — would conservatives be obligated to say it’s perfectly fine for a Republican administration’s nominee to have argued for Obamacare’s individual mandate while working for health insurers?”
These hypotheticals expose that behind the umbrage, the Hawley approach consists of a series of single-issue litmus tests. Did the nominee defend a city’s decision to enforce an ordinance barring LGBT discrimination? He is anti-religious freedom. Did the nominee defend a city ordinance banning high-capacity magazines? He is anti-Second Amendment. What about defending city employees sued for excessive force? He is pro-police brutality.
The positions a judicial nominee advocates for a client tell us nothing of the would-be-judge’s own legal views, much less insight into an overriding judicial philosophy. That is not to say that an attorney’s representation decisions will never raise concerns about a nominee’s judicial philosophy. But the long-term representation of a liberal organization dedicated to the slaughter of millions of innocents, such as Planned Parenthood, is so different in degree from the handling of legal work for a municipality—which may or may not involve issues of ideology—that it is different in kind.
But why accept the case? Critics point out that Bogren could have refused to represent East Lansing. This ignores the countervailing demands that attorneys in private practice face.
Bogren is an equity partner at Plunkett Cooney and, as such, has a duty to his partners to develop business. East Lansing is a long-time client of the firm, with Bogren currently representing the city in two other cases—one involving a challenge to East Lansing’s billboard ordinance and a second defending the city against a malicious prosecution claim. The reality is that if Bogren had refused to represent East Lansing, the firm would likely have lost the client and Bogren would have violated his fiduciary obligations to his partners.
So, are we as conservatives saying that Bogren had a moral imperative to withdraw from the firm, which would have been the only way to avoid this Catch-22? And do we believe his failure to do so renders him unfit to serve as a federal court judge? If so, where do we draw the line? How do we draw the line?
Impartiality Doesn’t Equate to Bigotry
Those opposing his nomination fail to appreciate that their real beef with Bogren is not his legal advocacy, but how he balanced his obligations to his partners and his personal beliefs. This balance no doubt presents difficult moral and philosophical questions, but no one is having that discussion. Instead, critics are unjustly condemning Bogren as an anti-Catholic bigot—or, at a minimum, implying he is one.
Given the bashing religious conservatives and religious liberties have taken of late, it is understandable that senators seek assurances that Bogren and other judicial nominees do not hold an anti-religious bias or a hostility to religious liberty. Without my relation to Bogren—he is my cousin—I too might have zoned in on a few passages in his briefing in the East Lansing case and equated his advocacy with his personal views and judicial philosophy.
But here I have an unfair advantage: I know that Bogren is respectful of persons of all faiths and a Catholic himself. From conversations over the years about the Constitution, court decisions, judges, and justices, I know that Bogren is a solid choice for the district court nomination.
This knowledge allowed me to avoid a knee-jerk response to Bogren’s representation of East Lansing, even though I condemned East Lansing’s decision in an article I wrote for National Review nearly two years ago. For others seeking assurance of Bogren’s bona fides, there is plenty of evidence.
Bogren Has Also Advocated for Religious Liberty
First, Bogren’s representation of other clients demonstrates that he is a strong advocate for all, and has zealously defended religious freedom. His advocacy for the Methodist summer resort of Bay View’s right to a religious exemption under the Fair Housing Act provides a case-in-point.
Second, his Plunkett Cooney partners who, as they note, “other than his family, know Mike best,” countered the claims of bigotry in their Friday letter to the Judiciary Committee: “Several of us are devout Catholics, having attended Catholic grade schools, high schools, colleges, and law schools and having also sent our children to these institutions. Others of us are Jewish or Christians of other denominations. We would not support Mike or his nomination if he held anything resembling the anti-religious-rights or anti-Catholic bias he is falsely accused of holding.”
Finally, conservatives should find comfort in Trump’s unimpeachable record of screening judicial candidates. Yes, the Republican-controlled Senate continues to honor the blue-slip tradition at the district court level, but in a deal reportedly made with Michigan’s two Democratic senators, Trump got his pick for one district court slot—and Bogren was Trump’s choice. If nothing else, that should tell you something.
UPDATE:
THREAD: I just learned that my cousin, Mike Bogren, has sent White House a letter withdrawing his name from consideration of the district court position. For those celebrating this as a win for religious liberty, it is not–it is a Pyrrhic victory at best. Here's why. 1/
— Margot Cleveland (@ProfMJCleveland) June 11, 2019
3/ for people of faith. But as Mike made clear, his words were not his personal views, but his legal advocacy. Conservatives by condemning Mike have condemned other conservatives representing conservative causes. The Left could have easily have branded Mike an anti-Semite for
— Margot Cleveland (@ProfMJCleveland) June 11, 2019
5/ MOST, thankfully, on the right did not descend to that left. But some have. I have seen people I respect calling Mike an anti-Catholic bigot. And that is shameful. You might disagree with his decision to represent a client, or the arguments made, but unjustly slandering
— Margot Cleveland (@ProfMJCleveland) June 11, 2019
7/ "Why doesn't he tell people he likes Catholics?" Life isn't that simple-you can't repair a man's reputation tarnished by soundbites with a simple statement of the truth. And finally, while this is something only a few close to Mike would know from discussion of courts and
— Margot Cleveland (@ProfMJCleveland) June 11, 2019
8/8 the constitution, and judges and justices over the years, the true losers will be those seeking refuge from persecution because of their faith because a judge okayed by two Democratic Senators is on the bench and Mike isn't. END
— Margot Cleveland (@ProfMJCleveland) June 11, 2019
