Michael Bogren, a Trump administration judicial pick, withdrew his nomination after some Republicans voiced concerns about his record on religious freedom.
The White House tapped Bogren in March to serve on the U.S. District Court of the Western District of Michigan, but Republicans quickly opposed the nomination. In 2017, Bogren represented the city of East Lansing, Mich., against Steve and Bridget Tennes, a Catholic couple who sued the city after they were banned from selling goods at the East Lansing farmers market for declining to host a same-sex wedding at their farm. The city implemented a new ordinance barring farmers market vendors who engaged in practices the city considered discriminatory.
In the motion to dismiss the suit, the city argued that a member of the Ku Klux Klan would not be allowed to refuse services to an interracial couple, or that an imam who was a driving instructor could not refuse to teach a woman to drive.
In a hearing on May 22, Sen. Josh Hawley, R-Mo., grilled Bogren on the analogies: “So, you think those things are equivalent. You think that the Catholic family’s pointing to the teachings of their church is equivalent to a KKK member invoking Christianity?”
After a noncommittal back-and-forth, Bogren said he was merely doing his job as a lawyer. “I represent clients, not causes. This is not ideological,” he 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 discrimination whether it be gender or race.”
Hawley said the city took a “scorched earth” approach that trampled religious freedom. Following the judge’s order, the city issued the Tenneses, represented by Alliance Defending Freedom, a permit to operate at the farmers market in 2018, but a Michigan federal court heard the case again in April.
After the hearing, Senate Judiciary Committee Republicans, including Hawley, Ted Cruz of Texas, and Tom Tillis of North Carolina said they would vote against Bogren. Some conservative organizations also voiced opposition to Bogren’s nomination, including the Judicial Crisis Network and the Heritage Foundation.
Bogren defended his record in a statement announcing his withdrawal. He called lawmakers’ concerns a “gross mischaracterization.”
Bogren’s cousin, Margot Cleveland, an adjunct professor at Notre Dame and a writer for The Federalist, defended him, as did other conservatives. Ed Whelan with the Ethics and Public Policy Center said in a National Review op-ed, “Bogren made it clear he was advancing legal arguments on behalf of his client, not expressing his personal views.” Whelan argued that if a lawyer could be disqualified for arguments made on behalf of a client, that same standard “could rebound to the detriment of conservative nominees who have defended religious liberty or pro-life legislation in unpopular contexts.”
Senate Judiciary Chairman Lindsay Graham, R-S.C., blamed the issue on vetting. “I'm going to go talk to the White House,” Graham told CNN. “It’s probably something we should have known more about.” —Harvest Prude