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Bovard: Hawley's due diligence draws unfair criticism

Bovard: Hawley's due diligence draws unfair criticism

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Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., right, speaks with Sen. Ben Sasse, R-Neb., center, and Sen. Josh Hawley, R-Mo., left, as Attorney General nominee William Barr testifies before the Senate Judiciary Committee  on Jan. 15. 

Sen. Josh Hawley, a Missouri Republican, is rapidly becoming the Senate Judiciary Committee’s chief inquisitor. And thank goodness for that.

Since January, Hawley has led his peers in a thorough vetting of the judicial nominees currently churning through the Republican-controlled Senate. And for doing so, he has taken it on the chin from the Washington legal establishment.

The Wall Street Journal editorial board has spilled ink no fewer than three times in the last six months berating the senator — who is a Yale-educated attorney and former state attorney general — for having the gall to question judicial nominees about their judicial philosophy. The Republican legal establishment has done the same.

The capitol’s legal denizens, it seems, are not used to having their powers of preordainment challenged by democratically elected upstarts like U.S. senators.

But the Journal’s latest editorial demonstrated just how far the legal establishment is willing to go to ensure its ordination powers remain intact. The editorial took issue with the aggressive questioning Hawley inflicted on Michael S. Bogren, a nominee to the Western District of Michigan. Bogren, it should be pointed out, was selected at the behest of Michigan’s two Democratic senators, in deference to what’s known as the “blue slip” process — a Senate custom that allows home-state senators to choose their own district judge nominees.

Hawley’s specific challenge to Bogren arose over the latter’s work in representing the city of East Lansing in a dispute where the city barred a Catholic family from participating in the city’s farmers market because the family refused to hold same-sex weddings on their farm.

In the legal brief he prepared in defense of his client, Bogren used what Hawley has termed “scorched-earth tactics,” repeatedly comparing Catholic beliefs about marriage to the overt racism practiced by the Ku Klux Klan —going so far as to claim that Catholics following the teachings of their faith is “no different than the ‘White Applicants Only’ sign.”

“Plaintiffs attempt to dress their arguments up in a shimmering gown of First Amendment and religious righteousness and parade it down the runway of moral superiority,” Bogren wrote. “When stripped of its costume, however, what lurks beneath is simply this: discriminatory conduct.” Bogren then went on to judge the sincerity of the family’s belief, claiming they exercise their faith “selectively.”

There are two central issues that must be parsed here. First, it is critical to point out, as Hawley has, that his issue with Bogren is not the work he did representing a client, regardless of what side of the argument he was on.

Rather, the issue rests with how he carried this out. As Hawley stated, “A lawyer can give his clients a vigorous defense without stooping to personal attacks and vicious rhetoric. … (Bogren’s) hostility toward their faith raises questions about his fitness to be a federal judge.”

This is a fair criticism. Beyond even linking practicing Catholics to the Klan, Bogren opposed letting the Catholic Church file a brief in the case, while making himself judge and jury on a Catholic family’s application of their faith. He also misstated the law as it applies to equivalency of discrimination on the basis of race, and discrimination on the basis of sex. The law scrutinizes discrimination by race more closely than it does discrimination by sex or sexual orientation.

Bogren was given a chance to clarify these statements under questioning from Hawley. However, rather than defer to his role as the counsel of record in an ongoing case — in particular, a case that will be heard in the federal district where he is nominated as a judge — Bogren chose instead to reaffirm his position that the government can impose liberal beliefs on sexual orientation and gender on Christians.

In doing so, he doubled down on the leftward view of religious liberty in a manner suggesting that Bogren has left legal analysis behind, and truly believes that government entities are entitled to judge theological matters and issues of theological consistency.

Many on the political right have chosen to defend Bogren in the name of client representation — somehow believing that the political left will not use a nominee’s client choices as a cudgel against conservative nominees. This, when liberal senators have already attacked nominees for affiliation with Catholic service groups, and for holding mainstream Christian beliefs.

More broadly, however, it seems the GOP legal establishment does not want a dispute over Bogren to threaten the uninterrupted churn of judicial nominees through the Senate. But the desire for quantity is not an excuse to overlook quality — particularly on issues of such fundamental importance.

Happily for independent-minded conservatives everywhere, Hawley does not appear deterred by the paroxysms and pearl-clutching of the GOP legal establishment. And thank goodness for that.

Rachel Bovard is co-author of “Conservative: Knowing What to Keep” with former Sen. Jim DeMint, R-S.C.

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