The Case Against Bogren

Senator Josh Hawley (R., Mo.) was harshly critical of one of President Trump’s district-court nominees, Michael Bogren, casting him during a confirmation hearing as an enemy of religious freedom and an anti-Catholic bigot. The senator’s ire stems from a case in which East Lansing, Mich., barred a Catholic family from participating in a farmer’s market because that family rents its farm for marriage ceremonies but is not willing to host same-sex weddings. Bogren represented the city, and his briefs repeatedly mentioned the Ku Klux Klan.

In the public debate since the hearing, Bogren has had defenders and Hawley critics on the left and right. I have great respect for a few of the people who have taken this side of the argument. But I have doubts about their case.

They make three principal arguments for Bogren over Hawley. (1) Bogren was merely representing a client and, if we reject his nomination because he faithfully advocated their position, we are traducing the core American right to fair legal representation. That’s the view of the editors of the Wall Street Journal, for example. (2) Bogren’s argument was in fact a reasonable and mainstream one. (3) Bogren’s nomination was part of a deal that secured the confirmation of conservative judicial nominees.

Let’s take them in that order.

I wonder how far people are willing to take the principle in (1). The Journal compares Hawley to the Harvard students who ousted law professor Ronald Sullivan as a dean because of his representation of Harvey Weinstein. Sullivan lost an existing position, however, rather than the chance to be elevated to another one. Perhaps more important, Sullivan was punished for the mere fact of representation, whereas Hawley has criticized Bogren for the way he represented East Lansing. For these controversies to be analogous, Sullivan would have to have been criticized for smearing and bullying Weinstein’s accusers.

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?

We want to foster and protect a culture in which clients’ views are not automatically imputed to lawyers and nobody is so unpopular or politically controversial that he cannot get legal representation. Hawley’s critics are right about that, and indeed Hawley claims to agree with that goal. Embracing an absolute principle to further that goal is a more dubious matter.

A related argument — call it argument 1(b) — is that Hawley is setting a bad precedent. The Journal raises it. “Consider Kyle Duncan, recently confirmed for the Fifth Circuit Court of Appeals, who had challenged ObamaCare’s contraception mandate for the Becket Fund. Imagine what Hawaii’s Mazie Hirono would have done with that if Democrats controlled the Senate.” I can well imagine it. I can imagine it regardless of whether Hawley objected to Bogren. Conservative politicians and editorialists are going to have to find a way to distinguish between, on the one hand, hostility to religious liberty and, on the other, advocacy of it.

The second part of the case for Bogren and against Hawley is that Bogren’s argument was in fact a reasonable and mainstream one. Note that this point is superfluous if the principle in (1) is as strong as it is said to be. If we’re obligated in principle to ignore the merits of the arguments that lawyers have made when evaluating their fitness for the bench, then it does not matter whether those arguments are moderate, cracked, or something in between. Admit that the specifics of the arguments matter, and the apparently ironclad principle of (1) is demoted to an important consideration.

Taking (2) on its own: Most of the conservative legal academics to whom I’ve spoken — who admittedly may not be a representative sample, but who have read the key filings — do not believe that Bogren acted in a reasonable manner. They point to three features of his representation beyond his KKK analogies. Bogren opposed letting the Catholic Church file a brief in the case, an unusually aggressive move that could be read as suggesting animus. He gratuitously criticized the plaintiffs for their allegedly selective fidelity to Catholic teaching. And he misstated the law. Bogren claimed that Bob Jones University had established that religious belief is no constitutional defense against a claim of discrimination on the basis of race, sex, or (Bogren implies) sexual orientation. But the law does not treat these types of discrimination equivalently. Laws that classify by race are subject to strict scrutiny; laws that classify by sex are subject to intermediate scrutiny. Institutions that discriminate based on race, even for religious reasons, lose their tax exemption: That’s the specific holding of Bob Jones University. Tax-exempt institutions that discriminate on the basis of sex for religious reasons have not even faced serious legal challenges.

On to (3). As the Journal concedes, Republican senators are not bound by any deal to which they weren’t party. At most they would have to consider the possibility that by making it harder for the White House to reach deals, they might set back the cause of moving the judiciary in the right direction. But it seems at least as likely that they would increase conservatives’ leverage by showing that their votes for flawed nominees cannot be taken for granted. As of now, I’m inclined to say that if the White House persists with this nomination, senators should exercise their independent judgment and vote against it.