U.S. District Court nominee Michael Boggs seems like an all-too-depressing example of a typical 21st-century Republican federal judicial appointment. As a state legislator, he voted to keep a symbol of treason in defense of slavery and lawlessness in defense of apartheid on the state flag. He opposes reproductive freedom. He supported amending the state constitution to ban same-sex marriage. Given his conservative views and apparent neoconfederate sympathies, he has attracted strong opposition from members of Congress like the civil rights icon John Lewis.
What's even more depressing is that Boggs was nominated not by George W. Bush but by Barack Obama. How did this happen? And should be done about it?
The primary villains here, as is so often the case, reside in the World's Worst Deliberative Body. Senate Democrats took an long time to abolish the filibuster for executive branch and sub-Supreme Court judicial appointments, permitting the Republican minority in the Senate to engage in scorched-earth opposition time after time. It took Senate Republicans literally admitting in advance that t<a href="http://prospect.org/article/indefensible-filibuster-nina-pillard">hey wouldn't confirm</a> any more Obama nominees to the powerful D.C. Circuit as a matter of principle to compel the Democratic majority end the practice. Even without the filibuster, the Republican minority still has tools to obstruct nominees. Vermont Senator Pat Leahy, the chairman of the Judiciary Committee, has reinstated the "blue slip" convention, which required the approval of at least one home-state senator for an appointment to proceed.
Both of these factors are relevant to the Boggs nomination. The deal to nominate Boggs came about because Senate Republicans had refused to permit nominees to Georgia district courts and the 11th Circuit Court of Appeals to advance. The blue slip practice then gave Georgia's two Republican senators substantial leverage of the appointments. The result was a deal that was ridiculously lopsided given Democratic control of the White House and Senate: 4 Republican picks in exchange for advancing two Democratic ones.
It's worth noting at this point that the blue slip is not any kind of formal rule; it's just a courtesy. Abolishing the filibuster required a majority vote, but Leahy can stop adhering to the blue slip convention anytime he wants. And it's clear that he should. We could argue about whether the blue slip should be maintained if it was a genuine bipartsian norm whose maintenance would give Democrats leverage over judicial appointments the next time there's Republican Senate and White House. But it's overwhelmingly clear that this isn't the case. The last time Republicans controlled those two branches Orrin Hatch began to ignore the blue-slip convention, getting several Bush nominees confirmed without the approval of either home-state senator. The odds that a future Republican Senate would give Democratic senators a veto over a Republican president's nominees are roughly the same as the odds that Elizabeth Warren will be the Republican nominee for president in 2016.
If the Senate is the primary villain here, though, this doesn't let Obama off the hook. If a single terrible nominee like Boggs was the price of moving multiple good Democratic nominees forward, this might be a deal worth making, and Senate Dems could be solely blamed for not addressing the obstructionist tactics of the Republican minority. But there was no good reason for Obama to capitulate to a deal that give the Republican minority two choices for every one by the majority party. It would have been better not to make the deal and put additional pressure on Leahy to abandon his counterproductive nostalgia for the blue slip.
Tuesday's hearings suggest that numerous Democrats on the Senate Judiciary Committee have reached similar conclusions. Under tough questioning, Boggs did repudiate his vote for a law that would have made the names and addresses of abortion providers public, but passively-aggressively refused to either confirm or repudiate his other troubling positions. That isn't good enough.
It's time to start over. Boggs should be rejected, and a better deal needs to be reached, preferably by ending the practice of giving two senators a veto over the will of the majority. This isn't the kind of judges Democrats should be giving a lifetime seat on the federal courts.
