4 Reasons President Obama Will Regret Tapping a Conservative Judge

The News: Senate Majority Leader Harry Reid (D-Nev.) on Wednesday stood against one of President Barack Obama’s nominees to a federal court in Georgia, citing the candidate’s past support of the Confederate flag and opposition to abortion and same-sex marriage.

“Unless I have a better explanation, I can’t vote for him,” Reid told BuzzFeed. “This is a lifetime appointment. He’s said some things and made some decisions I think are not very good.”

The Senate’s refusal to confirm Michael P. Boggs, a conservative Georgia Court of Appeals judge, woud jeopardize the White House’s broader plan to fill numerous judgeships—some of which would go to African Americans—long vacant because of Republican obstructionism and Obama’s lack of attention.  

Civil rights leaders, black members of Congress and pro-choice groups have demanded that Obama withdraw Boggs’ nomination because of his voting record as a Georgia state legislator. But the White House maintains its support for Boggs and cites his work on criminal-justice reform (pdf) as an example of his qualifications for the federal bench.

The Take: Why is the president ignoring his staunchest supporters to offer one of their archenemies—and one of his, really—a lifetime appointment to the federal bench?

Because Obama struck an agreement with Georgia’s Republican senators to back Boggs in exchange for their approval of Obama’s five other judicial nominees, two of whom are black women: Assistant U.S. Attorney Leslie Joyce Abrams and state court Judge Eleanor Ross.

It’s another example of Obama’s pragmatism leading him to cut a deal that is overly generous to his adversaries. Here are four reasons that Boggs’ confirmation could come back to haunt Obama and threaten his legacy (think court challenges to the Affordable Care Act) and legal protections for minorities (voting rights), women and LGBT people:

1. As a DINO (Democrat in name only) state legislator, Boggs voted to keep the Confederate battle insignia on Georgia’s state flag. Yet he told the Senate Judiciary Committee on Tuesday that he was “offended” by the ole Stars and Bars and said, “I am glad the flag was changed.” Of course he is—now. If he’d cast the vote anytime between the Jim Crow era and 1970s Georgia, his apparent evolution would be more believable. But this was 2001. (The flag change was pushed by his own party. It succeeded, but the backlash cost Democratic Gov. Roy Barnes his office and political career.) This doesn’t bode well for Boggs’ being an independent-minded jurist and would raise concerns for plaintiffs coming before him in racial-discrimination or voter-suppression cases.

2. He testified Tuesday that it would be “inappropriate” and a violation of Georgia state code to express an opinion on women’s reproductive rights, but his views are no secret: Boggs supported the purchase of special license plates to raise funds for “pregnancy resource centers” (pdf), which counsel women against terminating pregnancies. He also voted for an amendment that would have publicly listed the names of doctors who perform abortions. In his testimony he said he regretted his vote on the measure because if it had passed, the doctors could have been targeted for violence—which, of course, has happened in other states. He said that, if confirmed, he would rule based on current legal precedent regarding abortion, but his history doesn’t ensure that he would. And with new state laws chipping away at reproductive rights, the right case landing on his docket could give him a chance to advance the anti-abortion cause.

3. He voted for a state constitutional ban of same-sex marriage that was ratified by voters in 2004. Last year’s Supreme Court ruling entitling gay couples to federal benefits has set the stage for legal challenges to state bans. Georgia’s was targeted in a lawsuit filed last month. Imagine the ethical problems if Boggs were to hear a case against the law he voted for. It’s no guarantee that he would recuse himself.

4. In 2004, while running for a judgeship in a lower state court, Boggs appears to have violated state law by serving as a member of the National Steering Committee for President George W. Bush’s re-election campaign. In 2012 he apparently violated the prohibition against making political contributions when his campaign committee (for the appellate-court seat he currently occupies) gave $1,500 to a conservative group backing the current re-election campaign of Republican Gov. Nathan Deal.

Corey Dade, an award-winning journalist based in Washington, D.C., writes The Take and is a contributing editor at The Root. He appears on MSNBC and CNN and contributes to NPR. He is a former NPR correspondent and political reporter at the Wall Street Journal. Give him your “take” on Twitter.

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Corey Dade, an award-winning journalist based in Washington, D.C., is a former national correspondent at NPR and political reporter at the Wall Street Journal, the Boston Globe and other news organizations. Follow him on Twitter.