Bench Memos

Law & the Courts

District-Court Nominees in Blue States

The contentious exchange yesterday between Senator Josh Hawley and district-court nominee Michael Bogren over Bogren’s alleged anti-religious bigotry has many people wondering how President Trump ever nominated Bogren in the first place. I have a couple of observations on the matter:

1. The Senate Judiciary Committee’s blue-slip policy remains in full force for district-court nominees. That means that home-state senators have an effective veto over district-court nominees. In blue states (which I will define here to mean states with two Democratic senators) and in purple states (states with one Democratic senator), the White House is therefore forced to strike deals with Democratic senators if it wants to get district-court nominees confirmed. It’s a safe bet that Bogren’s nomination was part of some broader deal.

You don’t have to look hard to find plenty of examples of district-court nominees who are essentially Democratic picks.

Some folks might decry such deals. The soundness of any deal depends on the details, which often won’t be known. Have in mind that a deal might also include blue-slip approval by Democratic senators of appellate-court nominees. While such approval is no longer necessary under the demoted blue-slip policy for appellate nominees, it can still expedite the process. (Plus, it might well have been necessary at the time some deals were struck.)

2. With all respect for Senator Hawley, I am less enamored than others are of his criticism of Bogren.

For starters, from my review of the exchange, Bogren was making exactly the point of principle that I have made: 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.

Further, Bogren made it clear that he was advancing legal arguments on behalf of his client, not expressing his personal views. (Hawley seems to have understood the exchange otherwise.) Bogren’s arguments strike me as exactly what you’d expect from someone representing his client.

Do conservatives really want to embrace the general proposition that arguments that a lawyer makes on behalf of a client should, without more, be held against the lawyer? That’s a proposition that, apart from being unsound, could redound to the detriment of conservative nominees who have defended religious liberty or pro-life legislation in unpopular contexts.

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