Home Politics Court System Controversial Obama Judicial Nominee’s Confederate Flag Problem

Controversial Obama Judicial Nominee’s Confederate Flag Problem

Photo credit: Richard Elzey, Creative Commons License by Share-Alike 2.0
Photo credit: Richard Elzey, Creative Commons License by Share-Alike 2.0

The Anchorage NAACP issued a press release on May 29 calling on Sen. Mark Begich (D-Alaska) and Sen. Lisa Murkowski (R-Alaska) to oppose the confirmation of Michael Boggs. Boggs was nominated by President Barack Obama to the District Court of Northern Georgia in January.

In its statement, the NAACP noted, “As a representative, Boggs voted twice to keep the Confederate battle insignia on Georgia’s state flag.” The NAACP began a campaign to remove Confederate flags from state capitols in 1987. The press release added,

The NAACP is further troubled by Mr. Boggs’ leadership in the fight to enact legislation in Georgia to ban marriage equality. The NAACP Constitution affirmatively states our objective to ensure the “political, educational, social and economic equality” of all people. Therefore, the NAACP has opposed and will continue to oppose any national, state, local policy or legislative initiative that seeks to codify discrimination or hatred into the law or to remove the Constitutional rights of any citizens.

The NAACP is not the only organization to express concern about Boggs’ nomination. On February 20, 27 groups, including the National Center for Lesbian Rights, the National Gay and Lesbian Task Force, and Human Rights Campaign, sent a letter to Democrats on the Senate Judiciary Committee opposing his confirmation based on his legislative record, including statements he made in the past opposing marriage equality when he was a candidate for Georgia Superior Court. Boggs was a member of the Georgia General Assembly from 2001 to 2004.

Obama nominated Boggs as part of a package of seven judicial nominees negotiated with Sen. Saxby Chambliss (R-Georgia) and Sen. Johnny Isakson (R-Georgia). “The deal was, we agreed on seven nominees for seven different judicial appointments, and asked for all of them to get a hearing at the same time — and that was the deal,” Isakson told National Public Radio (NPR).

In a statement on May 13, Sen. Patrick Leahy (D-Vermont), chair of the Senate Judiciary Committee, declared he had not been part of any deal. “The constitutional responsibility of advice and consent resides with each individual Senator,” he wrote,

and there is no such thing as a binding deal that negates each Senator’s responsibility to determine the fitness of a judicial nominee for a lifetime appointment. Nor should any Senator be making up their minds about nominees without allowing the process to run its course. The purpose of these public hearings is to allow Senators to ask questions and raise issues about the nominees’ background and their fitness for a lifetime appointment on the Federal bench.

Boggs had the opportunity to address some of the public criticism during the Judiciary Committee hearing of May 13. The committee is itself ideologically charged. It includes some of the more liberal members of the Senate, like Sen. Chuck Schumer (D-New York) and Sen. Mazie Hirono (D-Hawaii), as well as some of its most conservative, including Sen. Ted Cruz (R-Texas) and Sen. Lindsay Graham (R-South Carolina).

Ranking member Sen. Chuck Grassley (R-Iowa) set the tone for the hearing by saying no one should apply the now-familiar “litmus test” to any of the nominees. That test has historically referred to abortion, which Boggs opposes, based on his voting record.

Boggs was sworn in, along with four other nominees on his panel, by Sen. Richard Blumenthal (D-Connecticut), who served as chair in Leahy’s absence. Boggs testified at length in an exchange with Sen. Dick Durbin (D-Illinois). When asked whether he believed the Confederate flag had anything to do with race, Boggs answered:

You know, when that flag was passed in 1956, Senator, there was no legislative history. I wasn’t a flag historian then, nor am I now. But in looking back on that issue and preparing for today, I know that some argue that race, particularly the — it was passed in reaction to the Brown decision from the U.S. Supreme Court in 1956. I have no reason to dispute that, although there are arguments on the other side, as well, as to what the motivation was for the bill originally.

There really is no debate about the genesis of the 1956 flag. The Brown v Board of Education ruling was rendered in 1954, officially desegregating schools. Georgia Governor Marvin Griffin declared his intention to resist the decision. The 1956 legislative session, during which the Confederate battle flag was incorporated into the state flag, was largely devoted to maintaining segregation. The flag bill had no public hearings. Bills were repeatedly introduced to remove the flag, which served as a public embarrassment for the city of Atlanta during the 1996 Olympics.

When Durbin pressed Boggs about his feelings on the flag, Boggs responded with what his critics found to be an unsatisfactory answer:

I was offended by the flag, Senator. At the time that I made that vote in 2001, I was a freshman legislator. I was in my seventeenth day of service. I was very respectful of the opinions that a majority of the African-American community in my state had towards that flag. It was not only a symbol of a reminder of the Civil War and a horrific tragedy and horrible time in American history, a reminder of the institution of slavery, but it was also, I think even more predominant, the more contemporary uses of that flag by organizations that espoused hate, that espoused oppression, that spouted overt racism. I found that one of the most challenging things of being a legislator was deciding when to vote the will of my constituents and when to vote the will of myself and my own conscience… I struggled with it regularly; on that issue, particularly. The overwhelming majority of the constituents in my one county that I represented, which likewise contained a minority population that I was not ignorant of, overwhelmingly though, those constituents desired that Georgians be permitted an opportunity to vote on whether Georgia changed the flag. And that’s why I cast the vote the way I did. However, I’m glad the flag was changed. It reflected something that I thought Georgia could do better with, quite frankly, Senator.

In actuality, the 2001 vote on the flag to which Boggs referred did not involve a citizen referendum as he suggested in his

Image from Zazzle.com
Image from Zazzle.com

testimony. That was a separate vote in 2003, and Boggs voted against the referendum because it did not include the 1956 flag as an option. The eventual referendum did accept a new flag incorporating the Confederate “Stars and Bars,” a compromise which drew just enough support to pass the General Assembly.

The Confederate battle flag means many things to different people, much like the American flag can symbolize freedom for some and imperialism for others. The flag and its Southern milieu are brilliantly documented in Tony Horwitz’s book Confederates in the Attic: Dispatches From the Unfinished Civil War. Horwitz writes that, for one faction, the flag has less to do with the Civil War. “The banner seemed instead to have floated free from its moorings in time and place and become a generalized ‘Fuck You,’ a middle finger raised with ulceric fury in the face of blacks, school officials, authority in general.” For this group and its myopic historical perspective, an attempt to change the flag is an assault on its heritage, its way of life.

One trend Horwitz writes about I remember well from my school days in Florida. When the Malcolm X biopic, directed by Spike Lee, was released in 1992, young People of Color began wearing T-shirts with the large “X” design of the movie posters. As a reaction to this symbol of identity, some white Southerners donned Confederate flag T-shirts that read, “You Wear Your X, I’ll Wear Mine.”

Horwitz documents a heartbreaking modern account of Confederate flag debate and its consequences. In 1995, over Martin Luther King, Jr. weekend, Michael Westerman of Todd County, Kentucky, a father of two infant twins, was getting gas for his red truck when three cars of African-American teenagers pulled up alongside. They allege that Westerman or his wife shouted the N-word at them. The bed of Westerman’s pickup contained a Confederate battle flag attached to a pole Westerman himself had welded.

A high speed pursuit of the truck followed. Freddie Morrow, a minor, pulled a gun and shot Westerman through the heart. He died at the hospital. Morrow later told Horwitz, who visited him in jail, that he didn’t really know of the connection between the flag and the Civil War. “To him, the banner was simply something whites knew that blacks hated,” writes Horwitz. “He suspected whites brandished the flag as a sort of schoolyard taunt.”

The Ku Klux Klan quickly blanketed the area with literature. Whites protested a subsequent move to change Todd County schools’ rebel mascots. Many groups sought to brand Westerman after the murder, some describing him as a martyr.

Six weeks after the murder, the area held a Confederate Flag Day rally. Westerman’s aunt said he had died for the flag, which he flew to show his Southern heritage. His father said he died for his “beliefs and his constitutional rights,” according to Horwitz. An official from the Heritage Preservation Association, which encouraged people to report businesses that refused to fly the 1956 Georgia flag, said that “the NAACP, Queer Nation and others have been fomenting hatred against the honorable culture of the South.”

Georgia Capitol Build. Photo credit: Image Editor, Creative Commons License by Share-Alike 2.0
Photo credit: Image Editor, Creative Commons License by Share-Alike 2.0

Hate speech aside, would that it were that simple. There are over 400 documented cases in Georgia of lynching People of Color after the Civil War. The Klan, which celebrated Michael Westerman as a Confederate martyr, was reborn in 1915 at Stone Mountain, now one of Georgia’s most popular tourist attractions. Klansmen burned a cross on the summit that was visible in Atlanta. Perhaps not coincidentally, the United Daughters of the Confederacy commissioned the world’s largest bas-relief carved into the mountain in 1915. It depicts Jefferson Davis, Stonewall Jackson, and Robert E. Lee riding horses with hats over their hearts. The mountain is in a state park.

Dick Durbin put it in perspective during his questioning of Michael Boggs on May 13:

Judge Boggs, each year for over ten years, a congressman from your state, John Lewis, organizes a civil rights pilgrimage inviting members of both political parties to come down and personally witness some of the scenes of the civil rights struggles of the 1960s. I was honored to be invited one year. As fate would have it, I walked over the bridge at Selma with Congressman Lewis in the early morning Sunday hours, and he pointed out the spot where he was beaten unconscious and clubbed down by troopers on that march from Selma, Alabama. And he said to me, “Many people were acknowledged as heroes, and I should’t be one of them. I was just here doing what I thought was right.”

But there was one in particular who hardly ever gets credit, and his name is Frank Johnson. Frank Johnson was a U.S. Federal District Court judge, the position that you… aspire to, in the Middle District of Alabama. He not only ruled that the statute that allowed putting Rosa Parks in the back of the bus was wrong, he went on to rule that that Selma march would be allowed. For that, his mother’s home was firebombed. He was basically invited away from polite society in his part of Alabama, but became an icon to many of us in terms of courage on the bench.

I understand the role of a legislator and a politician trying to measure your constituents and what they want against what you believe is right, and sometimes, sadly, they come in conflict. Obviously, Judge Johnson decided, sitting on that Federal court, that even though he would be ostracized by many of his friends, he would do what he thought was right. I’ve asked you a lot of questions about when you were a state representative, and you’ve basically said, “I reflected the way my people felt.” So now how do you view that issue of race, when you have an opportunity to serve on the District Court here?


First, let me say I have the utmost respect for Congressman Lewis. I know him. I respect his career. While I know he might have been critical of me during this process, I don’t take any affront to that. I deserve that criticism based on that vote…. My vote was never intended to be disrespectful. It was never intended to fail to acknowledge the sacrifices that an enormous number of people made, from Dr. King to others, for the struggle that ultimately succeeded in equality. My vote was never intended to reflect that. I believe, as a judge, that everyone that comes before me should be treated equally. I believe that my record as both a trial court judge and as an appellate court judge, reflects my faithfulness to that. I don’t think anyone can disprove if someone is accusing someone of being a racist — how do you disprove that?

In his questionnaire submitted to members of the committee, Boggs wrote that none of the organizations to which he belongs discriminates on the basis of race, sex, religion, or national origin, which would violate the American Bar Association’s (ABA) Code of Judicial Conduct. A substantial majority of the ABA finds Boggs to be “well qualified” for the District Court, while a minority rate him as “qualified.”

Boggs’ nomination poses a serious problem for Democrats. On the one-hand, he is a Democrat — albeit a conservative “Blue Dog” Democrat — nominated by a Democratic president. He is well-spoken. His testimony was polished, despite the fact that he was questioned exhaustively while the other four nominees on his panel were largely ignored. (No committee members mentioned the irony of a nominee for a Federal judgeship voting for a flag that represents secession from the United States.) Also, the appropriate authorities deem him more than capable of doing the job.

On the other hand, his personal views are antithetical to the Democratic base. And this is a mid-term election year when members of both parties will appeal to ideologically friendly organizations for campaign money.

Sen. Diane Feinstein (D-California) expressed Democrats’ reservations:

There is a question, I think, among many of my colleagues of whether an activist conservative can become a judge that is not an activist judge. I happen to believe that’s possible…. This committee — I’ve sat on it for 22 years — we have been acutely disappointed by the fact that people pledge themselves to stare decisis [the principle of observing judicial precedent] and then they leave here and take the oath as a judge, and you just watch, and you say, “Where has it all gone?” I don’t want to cast a vote for someone where that happens… [and] I have to make a judgement whether you mean what you say or whether it will be just like the Supreme Court justices who pledged to us diligent pursuance of stare decisis and it just didn’t happen.


You don’t have to believe me necessarily when I say here today, under oath — I hope you would — that I would follow precedent but I hope that you would also look to what I have done for the last ten years that demonstrates a faithfulness to follow precedent in over 14,000 cases and 273 opinions I’ve authored on the Georgia Court of Appeals that have all been made available to the committee.

What Feinstein and other Democrats want are assurances that Boggs will rule in their favor on key issues, which they would then consider prudence, rather than activism. He did not give assurances either way during his testimony, just as a fair judge could not. He repeatedly expressed his commitment to stare decisis. In follow-up written questions, members of both parties baited him into commenting on specific cases, which he refused to do.

Sen. Al Franken (D-Minnesota) suggested he did not want to engage in a witch hunt:

I don’t want a situation where we can’t ever have people confirmed because they have some public record on something. I think that’s a bad tendency to do that…. Oliver Wendell Holmes said that experience is the law in many ways for judges, so I think it’s important that we have it factored in. But we can’t establish a system here where we’re just looking at things in the past, either it’s votes as a legislator or opinions expressed by a professor who’s writing scholarship. I think it’s a dangerous thing that we’re doing.

Still, Franken did not seem convinced of Boggs’ fitness and suggested that Boggs had mischaracterized his votes on the flag as more noble than they truly were.

Democrats’ concerns may be nothing more than sound and fury if Boggs moves beyond the Judiciary Committee. The “nuclear option” exercised by Senate Democrats eliminated the 60-vote threshold to limit debate on numerous subjects, including judicial nominees. Only six Democrats or Independents would be needed to confirm Boggs if all Republicans vote for him. Some Democrats facing re-election in red states may be tempted to garner home support with a “yes” vote. Though Mark Begich is in that predicament, he has said he will vote against Boggs. Lisa Murkowski has not publicly declared her intent.

Boggs must first clear the hurdle of the committee, where he would have to pick up two Democratic votes to advance to the Senate floor. Democratic leadership has come out strongly against Boggs, making it very difficult for any Democrats on the committee to break ranks. Members will be forced to decide which is more convincing, the carefully chosen words of Michael Boggs swearing impartiality or the controversial record in the Georgia General Assembly he partially disavows.

Meanwhile, partisanship has left vacant many of the nation’s judicial slots. 88 percent of judicial vacancies are in states with at least one Republican senator. Committee members must also consider if justice would be done by denying a qualified candidate the opportunity to address a backlog of cases in the name of politics.