Trump judge nom withdraws as GOP presses White House on vetting

Republicans approving record number of judges

By Ariane de Vogue and Ted Barrett, CNN
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President Donald Trump speaks during the D-Day Commemorations on June 5, 2019, in Portsmouth, England.

(CNN) - Conservatives are publicly disagreeing with the White House on the fate of two judicial nominees, revealing a rare schism among Republicans as they continue to approve record numbers of federal judges.

One of President Donald Trump's nominees -- Michael S. Bogren -- withdrew his nomination this week after accusations of anti-Catholic bigotry while he was representing the City of East Lansing, Michigan.

And a leader of a key conservative group has already publicly criticized a second nominee -- Halil "Sul" Ozerden -- whose appellate nomination the White House announced on Tuesday.

Bogren said in a statement he was told that there was "no path to confirmation" which he says was the "direct result of gross mischaracterization" of his work for East Lansing.

"It is truly unfortunate that what used to be a dignified process has sunk to this level," he wrote.

Politico first reported Bogren's withdrawal.

Missouri GOP Sen. Josh Hawley had been deeply critical of Bogren in the past and sparred with him during a Senate hearing.

Hawley told CNN he has taken on an active role on the Judiciary panel in order to make sure "the judges we confirm to lifetime appointments are pro-Constitution, rule-of-law judges who will adhere to the law and Constitution."

Senate Judiciary Chairman Lindsay Graham blamed the White House for not vetting Bogren carefully enough.

"I'm going to go talk to the White House," Graham told CNN. "It goes back to the vetting," he said, "it's probably something we should have known more about."

 

Michigan discrimination lawsuit

 

Bogren came under criticism during his confirmation hearing when Hawley referred to a brief Bogren wrote as an attorney for the City of East Lansing in 2017. Steve Tennes, who owns Country Mill Farms had participated in East Lansing's Farmer's Market since 2010. But in 2017 the city adopted a policy that required all vendors to comply with an ordinance barring discrimination in "general business practice."

Tennes went on Facebook to say that his deeply held religious beliefs are that a marriage is a union of one man and one woman. He said that he reserved a First Amendment right to deny a request for services that would require his business "to communicate, engage in, or host expression that violates the owners' sincerely held religious beliefs and conscience." Tennes was ultimately excluded from participating in the market.

The Tennes family, represented by the conservative Alliance Defending Freedom, sued. Bogren defended the city, arguing that if another business were to refuse to accommodate interracial couples "such a refusal would be subject to the antidiscrimination laws of Federal, State and local governments." In making that point Bogren said that the "other side of that discriminatory coin" is found on the website of the KKK which takes a strong stance against interracial marriage.

At the hearing, Hawley seized on the comparison. "You compared in your briefs a Catholic family's adherence to the teaching of their church to the activities of the KKK," Hawley said.

"The point I was trying to make was that religious beliefs trying to justify discrimination if extended to sexual orientation which the city of East Lansing protects, could be used to try to justify any other sort of discrimination whether it be gender or race," Bogren responded.

Hawley attacked him with anger and referred to a recent Supreme Court opinion that ruled in favor of a cake baker in Colorado who refused to make a cake for a same sex couple. "Don't you think that's a problem?" Hawley said.

"That raises a question of whether you can faithfully apply" the Supreme Court's decision Hawley said and repeated that he was "shocked" that Bogren would stand by his brief.

Bogren repeated that he was working as an advocate, but was repeatedly cut off by Hawley.

Lawyers for the Tennes family had also represented the baker, Jack Phillips, in the Supreme Court case.

Although the White House has so far declined to announce the withdrawal of Bogren, up for a seat on the US District Court for the Western District of Michigan, his cousin took to Twitter to decry the conservative criticism.

"It's unfortunate that some on the right portrayed Mike's zealous advocacy as a representative of his personal views, an unjust slur to further imply Mike, who is Catholic" is "somehow anti-Catholic," his cousin Margot Cleveland, a professor at Notre Dame who writes on religious liberty issues from a conservative perspective, said in a statement.

Senate Judiciary Committee member Sen. John Cornyn argued that the criticism was based on a position Bogren had taken while representing a client.

"I don't think lawyers should be disqualified for position they've taken on behalf of a client in court, in a legal argument," said Cornyn, R-Texas. "That's just my point of view based on my 13 years" serving as a state judge in Texas.

Wednesday, Bogren said he was unfairly accused of being "anti-religious, anti-Catholic and a religious bigot. "

"Those who know me," he wrote," know these claims to be untrue."

 

Hawley's efforts on Trump nominations

 

David Bernstein, a professor at the Antonin Scalia Law School at George Mason University, said Hawley is "trying to establish himself as the leading spokesperson for the religious right in the Senate."

"Bogren was a good sacrificial lamb for this campaign, because his nomination was the product of a compromise with the Democrats, so he didn't have a Republican senator or constituency to fight for him," Bernstein said. "It's a shame, though, that Hawley demagogued the issue, not only attacking Bogren for vigorously representing a client, but for wildly misrepresenting the arguments Bogren made on behalf of his client to falsely make him look like an anti-Catholic bigot."

On Wednesday, Hawley suggested that Bogren had gone too far in defending his clients.

Hawley told CNN he believed Bogren meant for his comments defending the city to be "inflammatory."

"That's why he used them in litigation -- for shock value," Hawley said. "So, it was a legal strategy that I think was wrong and was ill-advised."

It's not the first time that Hawley has criticized a Trump nominee. He created an uproar in February when he expressed concern with Neomi Rao who was up for a seat on the US Court of Appeals for the District of Columbia Circuit. He ultimately voted for her but his early criticism drew fire from other conservatives.

"This is the mentality of a circular firing squad," Jonathan Adler, a professor at Case Western Reserve University School of Law said at the time.

 

Ozerden criticized

 

On Tuesday, the White House announced it was nominating Halil "Sul" Ozerden of Mississippi to the 5th US Circuit Court of Appeals. Ozerden currently sits on the Southern District Court of Mississippi where he was appointed by President George W. Bush in 2007. He served as a flight officer in the United States Navy and earned Commendation Medal for missions flown over Iraq and Somalia, according to the White House release.

But last year, Carrie Severino, chief counsel for the Judicial Crisis Network, wrote that she had heard "rumors" that Ozerden was being considered for the conservative leaning Fifth Circuit and noted that he had an "unusually high reversal rate" by "some of the most conservative judges in the country including Edith Jones and Jerry Smith."

"Perhaps even more concerning is the reasoning behind the reversals," Severino wrote for the National Review. "Court watchers have noted that Ozerden is inclined to dispose of cases prematurely and without thoughtful and thorough legal analysis."

In the article she said that many of Trump's nominees to the appellate courts represent the "crown jewel of the President's legacy" and that the Fifth Circuit "should be no exception."

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