Sen. Josh Hawley makes no apologies for bringing down a Republican judicial nominee — even if his tactics irritate some of his own GOP colleagues.
Michael Bogren’s withdrawal Tuesday from consideration to serve on a federal district court was a striking knockout for the Senate’s youngest member, a 39-year-old freshman with slicked-back hair and an unrepentant conservative populism.
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The moment also signaled the Missouri Republican’s brand of conservatism is something to be reckoned with in today’s Senate as the GOP wrestles with its identity in the Donald Trump era.
“One of the things that has been so painful for conservative voters over the years is to see people like former Justice David Souter put on the bench, who wasn’t really vetted,” Hawley said in an interview Wednesday, referring to the center-left Supreme Court pick appointed by a Republican. “People ask how could it happen over time? One of the ways it happens is that Republican senators don’t actually take the job seriously.”
But Hawley’s verdict against Bogren was not unanimous.
Several Republicans said Bogren was merely defending his client and that it would be wrong to bring down nominees for that alone. Sen. Susan Collins (R-Maine) said Wednesday she was “disturbed” by the events. And The Wall Street Journal recently wrote its third editorial condemning Hawley in barely three months, arguing he set a “precedent that conservatives will regret.”
Hawley’s response to the influential conservative editorial board: “I apparently take up a lot of their brain space.”
Hawley’s inquisition of Bogren during his May confirmation hearing was little noticed at the time, with the hearing room mostly empty and no hint the hopeful for a District court in Michigan was in danger. But Hawley quickly accused Bogren of “anti-religious animus” in his defense of the city of East Lansing’s anti-discriminatory laws by comparing a “Catholic family’s adherence to their religious beliefs with the views of the KKK,” as Hawley summed up the case.
Within days of Hawley’s confrontation with Bogren, GOP Sens. Ted Cruz of Texas and Thom Tillis of North Carolina turned on the nominee. Senate Majority Whip John Thune (R-S.D.) said the opposition of those senators “was indicative that there might have been deeper problems.”
Meanwhile, senior White House officials made no efforts to get Hawley to back off in order to save Bogren, according to people familiar with the matter. The administration may not have been willing to expend the political energy for an intraparty fight; the nomination had its origin in a bipartisan agreement between Senate Judiciary Chairman Lindsey Graham (R-S.C.) and Michigan’s two Democratic senators.
While the White House has seen the majority of its judicial appointments breeze through the Senate, Bogren joins a small group of Trump nominees, including Brett Talley, Jeff Mateer, Ryan Bounds and Thomas Farr, who tanked amid opposition from Republicans.
The episode also underscored Hawley’s willingness to absorb criticism from within the GOP and conservative allies.
After he considered opposing Naomi Rao’s nomination to the D.C. Circuit over her views on abortion, Hawley took heat from the conservative legal establishment and eventually supported her after receiving private assurances of her stance. This time, a well-organized faction of social conservatives supported Hawley and helped him weather initial pushback from the center-right.
Still, Hawley’s questioning of Bogren’s legal strategies in a case that involved a Catholic family getting barred from the city’s farmers market after refusing to host a same-sex marriage on their farm has opened an ugly split in the GOP over Hawley’s tactics.
Sen. John Kennedy (R-La.) said of Hawley’s approach: “We need to be real careful going down this rabbit trail.”
“Republicans on the Judiciary Committee have repeatedly expressed our concern with our Democratic colleagues for condemning nominees for positions that their clients take. So if we’re going to be consistent, we shouldn’t do it either,” Kennedy said. “I don’t think it’s fair.”
Sen. John Cornyn (R-Texas), a former state Supreme Court justice, agreed.
“I don’t think lawyers should be disqualified for positions they’ve taken on behalf of a client in court,” he said.
But Cornyn conceded that if Bogren didn’t have the votes to get confirmed, “it’s important to avoid unnecessary embarrassment.” And some Republican colleagues praised Hawley for his performance at the hearing.
“I actually approached him, and I told him I thought his line of questioning was great and the response was unacceptable,” said Tillis, who’s facing a conservative primary challenger.
Hawley argued that he never quibbled with Bogren defending the city’s anti-discrimination laws, merely how he did it. And he said that Bogren might have saved his nomination by admitting fault. But that didn’t happen: Instead the two engaged in a testy exchange that ran for a full six minutes.
“This gentleman chose to engage in frankly anti-religious slurs and things that conveyed anti-religious animus and he did it repeatedly. And it wasn’t a slip of the tongue,” Hawley said on Wednesday. “It was really nasty, really personal. And it’s exactly what the United States Supreme Court said government officials shouldn’t do.”
Bogren argued in a statement Wednesday that lawyers in Michigan, under ethics rules, must “zealously advocate the client’s best interests” and hit back at Hawley without naming him.
“My family had to witness an unfounded personal attack on me, as well as ensuing personal attacks in the media,” Bogren said. “It is truly unfortunate that what used to be a dignified process has sunk to this level.”
Hawley has also sought to distinguish himself by taking on large tech companies like Google. Already, he’s drawn comparisons to Cruz and Tom Cotton of Arkansas, all young senators who made their marks through high-profile battles with their own party and are considered to have their eye on higher office.
And to social conservatives who have viewed the GOP as too compliant to the center-right, Hawley’s victory on Bogren was welcome news.
Tony Perkins, president of the Family Research Council, compared Hawley’s position on judicial nominees to that of the late North Carolina Sen. Jesse Helms, “one of the few Republicans who would oppose judicial nominees and would lead the charge against them if they were not right when it comes to the Constitution.”
Future nominees “cannot adopt the rhetoric of the left and attack people of faith and use the talking points of the Southern Poverty Law Center and think they will be confirmed,” Perkins said.
“It’s a breath of fresh air for conservatives… he’s unbending,” said Rachel Bovard of the Conservative Partnership Institute, which took a leading role in organizing opposition to Bogren.
The torpedoing of Bogren’s nomination also calls into question the future of the “blue-slip” process; under the GOP majority, home-state senators can veto a district court nominee, though they can’t block circuit court nominees like under Democrats.
Sen. Debbie Stabenow called Bogren’s treatment “very unfair” and Sen. Gary Peters (D-Mich.), who introduced Bogren at his hearing, observed curtly: “President Trump wanted him, he wasn’t my nominee.”
Now, Graham needs to weigh whether he can replace Bogren with someone who will satisfy the White House, Democrats and the Senate GOP. He said in an interview he’s willing to try.
“I’m very big on keeping our deals with our Democratic friends on district judges,” Graham said.
Hawley seemed unconcerned with nomination “side deals” with Democrats. And while he praised the White House for largely doing a “tremendous job” on judges, he also made clear that he won’t change his approach.
“Whoever they nominate, I’m going to ask the same questions of all these judges,” Hawley said. “Doesn’t matter to me what the background may be.”