May 13, 2014 at 1:01 pm EST | by Chris Johnson
Boggs says views ‘may or may not’ have changed on marriage
Judicial nominee Michael Boggs says his views 'may or may not' have changed on marriage (Screenshot courtesy U.S. Senate).

Judicial nominee Michael Boggs says his views ‘may or may not’ have changed on marriage (Screenshot courtesy U.S. Senate).

A controversial judicial nominee said during his confirmation hearing Tuesday his views “may or may not” have changed since he backed Georgia’s anti-gay marriage amendment in 2004 — and he would defer to the Supreme Court precedent on any possible marriage cases that come before him as a judge.

Michael Boggs, whom President Obama nominated in January for a seat on the U.S. District Court for the Southern District of Georgia, said his current views on same-sex marriage may not reflect his previous opposition when asked by Sen. Charles Grassley (R-Iowa) about a statement he made on the issue 10 years ago.

“I clearly meant, Senator, that my personal opinion was at the time over a decade that I was in support of a proposed constitutional amendment that would have banned same-sex marriage,” Boggs said. “My position on that, Senator, may or may not have changed since that time — as many people’s have over the last decade.”

It’s customarily for judicial nominees not to definitively state during the confirmation process their personal views on matters, such as same-sex marriage, because if they did and the issue came before them as a judge, they would have to recuse themselves.

Boggs also emphasized that his stated opposition to same-sex marriage has had no impact of any cases over which he has presided since he became a state judge in 2004.

“Moreover, my position on that, as reflected by those personal comments in 2004, have never had any import whatsover in how I’ve decided cases or how I analyzed issues both as a trial court and an appellate court judge,” Boggs said.

Asked by Sen. Richard Blumenthal (D-Conn.) whether he would now back a constitutional ban on same-sex marriage, Boggs replied, “No, sir.” Boggs added that view wouldn’t inform his decision-making as a federal judge.

Three same-sex couples have filed a lawsuit against Georgia’s ban on same-sex marriage that’s now pending before federal court. Asked by Sen. Mazie Hirono (D-Hawaii) about the case, Boggs said he “would not” believe that a ruling against the law would be an example of judicial activism.

In a follow-up question from Hirono on whether he had considered as a state judge any cases involving gay people, Boggs revealed he indeed considered such a case involving a lesbian parent seeking second-parent adoption of her son.

Although Boggs said the “record is sealed,” he disclosed he agreed to take it up after the chief judge in his circuit refused to hear the case. After hearing the woman’s case on why she’d be a good parent, Boggs said he “approved the adoption.”

Under later questioning from Sen. Amy Klobuchar (D-Minn.), Boggs said her personal views wouldn’t influence his ruling on marriage cases and he would defer to the landmark Supreme Court decision on the Defense of Marriage Act for guidance on how to rule. Asked by Klobuchar whether he would defer to the DOMA decision as a judge, Boggs replied, “absolutely.”

Boggs reasserted that view on his judicial philosophy when asked about the DOMA decision by Sen. Dianne Feinstein (D-Calif.), the lead sponsor of the Respect for Marriage Act in the U.S. Senate.

“My personal feelings would be irrelevant to how I would act as judge,” Boggs said. “You have my commitment that I would follow the decision in Windsor; I would follow any precedent or the Supreme Court on marriage equality on the issues, as I would any issues.”

The Boggs nomination has invoked the wrath of progressive groups across the board — ranging from civil rights groups, women’s groups and LGBT groups — over his voting record in the Georgia State Assembly, which includes his vote in favor of Georgia’s state constitutional amendment against same-sex marriage in 2004, his votes against abortion rights and support for keeping the Confederate symbol in the state flag.

Running for election as a state judge in 2004, Boggs reportedly said, “You don’t have to guess where I stand — I oppose same-sex marriages.”

Among those opposing the nominee are the national LGBT groups the Human Rights Campaign, the National Gay & Lesbian Task Force and GetEQUAL. Those groups are among 27 organizations signed a letter asking the Senate Judiciary Committee to reject the nominee.

Two of the LGBT groups who have opposed his confirmation didn’t change their views of Boggs as a result of what was said during his confirmation hearing.

Heather Cronk, manager director for GetEQUAL, was unmoved by Boggs’ testimony, saying his “record on issues of justice for women and LGBTQ individuals is abysmal.”

“His long public record of stances on everything from choice to the confederate flag puts him out of step with not just the Obama Administration’s stated values, but also out of step with the American public,” Cronk said. “Stating during this make-or-break confirmation hearing that he ‘might’ have changed his views on one issue is not comforting — it’s simply a political move to take some heat off of his nomination.”

Stacey Long, policy and government affairs director for the National Gay & Lesbian Task Force, also said her organization’s view hasn’t changed.

“He may or may not have changed his views on marriage equality,” Long said. “We on the other hand have not changed our view of his nomination; he should be withdrawn. There are plenty of other qualified jurists out there.”

Fred Sainz, vice president of the Human Rights Campaign, on the other hand, said as the hearing was ongoing his organization needed more time to reassess the nomination.

“We remain very concerned about his record and his approach as a judge,” Sainz said. “Once his hearing concludes, we will review his testimony and based on that decide how to proceed.”

Although the issue of marriage came up, Democratic senators on the panel primarily questioned Boggs about his support for keeping the confederate symbol within the Georgia state flag and his opposition to abortion rights. Boggs said he believed he was acting on behalf of his constituents and his personal views wouldn’t influence his rulings as a federal judge.

Whether Boggs was being completely forthcoming with the committee was also an issue with Democratic senators. Blumenthal expressed concern that he added new material to his record that previously wasn’t disclosed prior to his hearing, asking whether he had disclosed the entirety of his public statements. Sen. Al Franken (D-Minn.) suggested Boggs was less than truthful when he told the senator his initial vote on the Confederate flag would have brought the issue to referendum when, in fact, it did not.

Obama selected Boggs as a judicial nominee as part of a deal with the Republican U.S. senators in the state — Sens. Saxby Chambliss and Johnny Isakson — to move forward a group nominees to fill judicial vacancies in the state.

Boggs was among seven judicial nominees who faced their confirmation hearing before the Senate Judiciary Committee on Tuesday. Blumenthal presided over the hearing.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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