Judicial nominee Michael Bogren is favored to win confirmation to the federal bench, despite fierce criticism from social conservatives and GOP Sen. Josh Hawley of Missouri.
Hawley questioned Bogren Wednesday over legal work he performed on behalf of a city government seeking to exclude Catholic business owners from a public market over the business’ stated policies regarding same-sex wedding ceremonies, in a heated exchange that circulated widely on the religious right.
Two sources close to the process tell The Daily Caller News Foundation that Bogren’s confirmation is likely, Hawley’s concerns notwithstanding. Indeed, some conservative legal stalwarts found Hawley’s questions troubling, both on principle and as a matter of tactics.
A consensus nominee
Bogren is an attorney in private practice at Plunkett Cooney, where he represents municipal governments in zoning, civil rights and First Amendment matters. He is a graduate of the University of Detroit School of Law.
Unlike other Trump judicial nominees, Bogren has few discernible connections to the conservative legal movement, though a questionnaire he submitted to the Senate Judiciary Committee indicates he wrote a letter to the editor supporting GOP Rep. Fred Upton of Michigan against a primary challenger in 2010.
Trump nominated Bogren together with Magistrate Judge Stephanie Dawkins Davis to fill two vacancies on the federal trial courts in Michigan. Those selections followed extended negotiations between the White House and Democratic Michigan Sens. Debbie Stabenow and Gary Peters.
Senators still enjoy substantial influence over judicial selection in their state. The Judiciary Committee will not hold a confirmation hearing for trial court nominees until senators return an opinion — called a “blue slip” — on a candidate selected for a court in their state.
Stabenow and Peters have worked productively with the Trump administration on judicial nominations. Both lawmakers returned positive blue slips for Judge Joan Larsen, a Supreme Court short-lister confirmed to the 6th U.S. Circuit Court of Appeals in 2017. A liberal advocacy group that scores Democrats on judicial confirmations gave Stabenow and Peters low marks.
Hawley’s questions and the Country Mill Farms case
The city of East Lansing retained Bogren in litigation involving an apple orchard called Country Mill Farms, a small business which participates in a city-sponsored farmers market. The proprietors of Country Mill are Roman Catholics who decline to host LGBT weddings on their property. In 2017, the city adopted a policy requiring that farmers market participants abide by the city’s human rights ordinance, both at the market and in the ordinary course of business.
East Lansing subsequently excluded Country Mill Farms from the market, citing its failure to comply with the non-discrimination policy. In turn, Country Mill Farms brought suit against the city and obtained a preliminary injunction. The Alliance Defending Freedom (ADF), a faith-based cause lawyering group, represented the apple orchard.
Bogren wrote in legal briefs that government can regulate conduct in the interest of anti-discrimination, even where that conduct is the product of sincerely held religious beliefs. In that connection, he said the state could prohibit a radical imam from operating a driving school that only accepts male students, or a member of the Ku Klux Klan from running a wedding venue that forbade interracial marriage.
“None of these propositions are in any way remarkable from a constitutional standpoint,” Bogren wrote. “Thus, the plaintiffs’ only response to why the city of East Lansing’s anti-discrimination policy would not fall within this unremarkable constitutional proposition must be that the subject of the nondiscrimination policy (sexual orientation) is not worthy of the same level of protection as race or gender.”
Hawley took exception to that line of argument, saying Bogren could have made his point without invoking Catholic farmers in the same company as Islamic extremists and the Klan.
“You compared in your briefs a Catholic family’s adherence to the teachings of their church to the activities of the KKK and the teachings of radical imams,” Hawley said. “Do you stand by those statements?”
“Senator, respectfully, that is not what I said,” Bogren countered. Later in the exchange, Bogren said he was trying to show there is no principled legal distinction between a person who discriminates on the basis of race for religious reasons and a person who refuses to accommodate a same-sex wedding on religious grounds.
WATCH: GOP Sen. Josh Hawley question judicial nominee Michael Bogren:
Hawley also pressed Bogren to explain why he accused the owners of Country Mill Farms of “selectively [incorporating] the Roman Catholic tenets on marriage when it comes to their wedding business.” The senator said that statement suggests Bogren was questioning the sincerity of their religious beliefs, while Bogren insisted he was doing nothing of the sort.
All told, Hawley argued that Bogren’s writings were similar to comments that were decisive to the outcome of the Supreme Court’s 2018 Masterpiece Cakeshop decision. Writing for the majority in that case, retired Justice Anthony Kennedy said members of the Colorado Civil Rights Commission showed impermissible hostility when they compared the religious beliefs of Christian baker Jack Phillips to defenses of slavery and suggested his views were “merely rhetorical.”
Mixed reactions and complicating factors
The exchange prompted mixed reactions among commentators and leaders of the conservative legal movement. Those figures argue that a position advanced on behalf of a client should not be attributable to the lawyer himself. Lawyers, they stress, have a duty to marshal every reasonable argument to zealously represent their clients.
Other conservatives made a case from tactical self-interest, fearing Hawley’s back-and-forth with Bogren will legitimate questions Democrats ask of conservative nominees about their work product. Such questions could complicate the confirmation prospects of future nominees, particularly those with ties to right-leaning public interest law firms.
Bogren’s remarks about the Country Mill Farms litigation were not limited to court papers. He also spoke about the case in the press, saying the dispute was fundamentally about nondiscrimination, not religion.
“The message isn’t Catholics need not apply,” Bogren told the Lansing State Journal in September 2017. “The message is discriminators need not apply. This is not about religion. This is not about speech.”
Yet, Bogren has litigated on the other side of similar controversies. According to Bogren’s committee questionnaire, he currently represents a Methodist resort community whose bylaws touch religion. Those rules once required that association landowners be of a “Christian persuasion.” The newly amended bylaws say association members must “respect the principles of the United Methodist Church.” A group of plaintiffs sued the association under a fair housing law and the First Amendment. That dispute is ongoing.
Though new to the Judiciary Committee, Hawley has positioned himself as an especially searching reviewer of judicial nominees. The senator broke with other Republicans in February to share skepticism of Judge Neomi Rao’s nomination to the U.S. Court of Appeals for the D.C. Circuit. Rao was ultimately confirmed with Hawley’s support.
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