Should judicial nominees be disqualified from the bench because of their vigorous advocacy on behalf of clients? Republican Sen. Josh Hawley apparently thinks so. On Tuesday, Hawley launched into an astonishing attack on Michael Bogren, whom Donald Trump has nominated to a federal district court in Michigan, on the basis of Bogren’s legal work. In a six-minute harangue, Hawley twisted Bogren’s words to accuse him of anti-Catholic bigotry, conflating the nominee’s legal arguments for his personal views.
Hawley’s umbrage revolved around Bogren’s representation of East Lansing, Michigan, as the city attempted to enforce its LGBTQ nondiscrimination ordinance against Country Mill Farms. A for-profit business, Country Mill grows fruit and sells its products at the East Lansing Farmers Market. It also hosts weddings (for a fee) on its property—so long as they are heterosexual; same-sex couples are turned away. City law, however, requires farmers market vendors to comply with the city’s prohibition against anti-gay discrimination. And upon learning of Country Mill’s discriminatory policy, the city barred the business from the market.
Country Mill then sued, alleging that East Lansing had violated its constitutional right to freedom of speech and religion. The city hired the law firm Plunkett Cooney, where Bogren works, to represent it. Bogren’s participation in the case infuriated Hawley, who claimed he evinced animus against the religious beliefs of Country Mill’s owners. The senator began by charging Bogren with comparing “a Catholic family’s adherence to the teachings of their church to the activities of the KKK and the teachings of radical imams.”
“Do you stand by those statements?” Hawley asked, bristling with indignant outrage. “Respectfully, that is not what I said,” Bogren responded. The two then tussled over the language in Bogren’s brief as Hawley grew increasingly outraged.
Hawley, a former Missouri attorney general and clerk for Chief Justice John Roberts, should know better. His assault on Bogren’s advocacy is in extreme bad faith.
To start, it is simply wrong to say that the nominee “compared” the beliefs of Country Mill’s owners to “the activities of the KKK.” What Bogren actually wrote is that if secular, for-profit businesses could win an exception to civil rights statutes, rampant discrimination would follow. Some religious groups, including those affiliated with the KKK and radical Islamic sects, hold extreme views on race and gender. If they opened a business and asserted a constitutional right to impose those views on customers, the entire edifice of modern civil rights law would be undermined.
Country Mill argued that the government has a stronger interest in barring discrimination on the basis of race and gender than in outlawing anti-gay discrimination. But, Bogren explained, “from a constitutional standpoint,” the government has authority to forbid all forms of discrimination in public accommodations. Country Mill has no right to discriminate against gay customers; a business owner affiliated with the KKK has no right to turn away interracial couples; and a Muslim who opposes women driving and runs “a business that taught driver’s education” cannot reject a female client. The Constitution, Bogren concluded, does not allow any would-be discriminator to use the First Amendment as a shield against civil rights laws.
It is absurd to claim, as Hawley did, that Bogren wrote the beliefs of Country Mill and the KKK “are equivalent.” He merely invoked the KKK to make a point about a neutral principle—a standard strategy that Hawley condemned as “hateful comparisons.” The senator can certainly dispute the accuracy of Bogren’s constitutional theory, but it is misleading and offensive to warp his words into bigotry.
Bogren’s briefs included a second statement that infuriated Hawley: He wrote that Country Mill’s owners apply their faith “selectively.” The senators declared that this argument “demonstrated impermissible hostility toward religious believers” by questioning “the sincerity of [their] religious beliefs.” That is unfair and wrong. What Bogren wrote is that Country Mill permits weddings that violate Catholic teachings in other respects: Its owners do not inquire about prior divorces, non-religious officiants, or a couple’s faith. Bogren raised this point not “to question the sincerity of the plaintiffs’ religious beliefs about same-sex marriage,” but to demonstrate that Country Mill rents out a wedding venue “as part of a business venture, not as conduct undertaken for a religious purpose or reason.” And for that reason, it may not cite the First Amendment to impose its beliefs on customers.
When Bogren pointed out that the contested statements appeared in briefs on behalf of clients, Hawley sneered. “Oh, but you made personal statements,” the senator said. “You made statements outside of your brief where you said that these are discriminators, these kind of people shouldn’t be allowed to participate in the market in question. Right?”
“I made those statements in court,” Bogren said, sounding puzzled. Hawley tried to paint the nominee as some marauding activist when, in reality, he was defending his clients in a court of law—in other words, doing his job.
It got worse from there. Hawley asked Bogren to “go on the record and say that this kind of rhetoric that demonstrates anti-religious animus is wrong and you disagree with it.” Bogren, to his credit, refused: “I don’t believe that that’s what that is,” he told the senator. “I believe it’s vigorous advocacy.” Hawley doubled down, telling Bogren that his briefs raise a question of “whether you can faithfully apply” the Constitution on the bench. Bogren replied: “My role as an advocate is far different than what my role would be as a judge.” Hawley then snapped at Bogren, telling him: “Don’t fence with me.”
But Bogren wasn’t fencing; he was trying to explain to Hawley that he cannot renounce his briefs in the case because it remains pending before the court. When Bogren noted that he still represents East Lansing, Hawley looked appalled. “Why?” the senator spat. “Because I am still employed by my firm and we are still representing my client,” Bogren answered.
Hawley’s tirade provoked condemnation from an unusual number of conservative commentators, and rightly so. Ed Whelan—yes, that Ed Whelan—wrote that Bogren “was advancing legal arguments on behalf of his client, not expressing his personal views. … Bogren’s arguments strike me as exactly what you’d expect from someone representing his client.” Margot Cleveland, an arch-conservative writer for the Federalist (and Bogren’s cousin) wrote that the nominee “is not anti-Catholic. … Conservatives using Bogren’s clients and zealous representation of their legal interests to scuttle a nomination aren’t thinking this through.” Cato’s Ilya Shapiro and Josh Blackman agreed that Hawley was off-base. Blackman also noted that, earlier in his career, Bogren represented a Methodist group seeking a religious exemption from a housing discrimination law.
Why would Bogren represent both a city trying to enforce a nondiscrimination law and a religious group trying to exempt itself from a nondiscrimination law? Because he is a lawyer, and lawyers do not have to agree with their clients in order to represent them. Hawley, an attorney himself, surely knows this. Yet he feigned ignorance of basic tenets of the legal profession in an effort to humiliate and castigate a perfectly qualified nominee. And for what? Praise in the Daily Wire?
Perhaps Hawley is competing with Texas Sen. Ted Cruz to be the most disingenuous person in Congress. Or maybe he wants to paint all attorneys who defend nondiscrimination laws as rank bigots. If so, he should pick a better target than Bogren, whose sterling record indicates no whiff of religious bias. And the senator should reconsider the tactic of slandering judicial nominees by conflating their legal arguments with their personal beliefs. Plenty of Trump’s other nominees defended draconian anti-abortion legislation, anti-LGBTQ, and voter suppression laws. Can the views in their briefs be imputed to the nominees themselves? Hawley seems to think so, and Democrats should take note. By bullying Bogren, the senator has kicked opened the door to vicious, disingenuous attacks on lawyers who dared to represent disfavored clients.
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