Earlier this week, San Francisco Federalist Society President David DeGroot penned an Open Letter to Senator Boxer in the Daily Journal urging her to let Jim Rogan's Judicial Nomination go forward.
FOCUS & FORUM • Jul. 30, 2008
Blocking Judge's Nomination Puts Boxer's Reputation at Risk
By David A. DeGroot
This is a direct plea to Sen. Barbara Boxer.
Senator, you have always had guts and have a record of taking controversial stands. I urge you to recognize that same characteristic in Judge James Rogan and allow his nomination to the federal district court in Southern California to proceed to a Senate vote.
To your credit, you and Sen. Dianne Feinstein have had a productive relationship with President Bush on the appointment of district court judges. Since 2001, you and Feinstein have worked with the president's California judicial appointments adviser, Gerald Parsky, to form evaluation committees for each of California 's federal judicial districts. You and Feinstein together appoint three members to each committee. Parsky also appoints three. The result has not only been some very fine nominees, but also a minimizing of rancorous ideological disputes that have often marked judicial nominations.
You have reached across the aisle in the past on district court nominations. My late father-in-law, Justice Robert F. Kane, had the honor of serving as a Republican appointee on a judicial nomination committee for you in the mid-1990s. He was justifiably proud of the good work his committee did in facilitating the appointment of Judge Martin Jenkins, now a justice on the state Court of Appeal.
Your reputation for work facilitating the appointment of well-qualified district court judges in California is in jeopardy because of your hold on Rogan's nomination.
Your nominees on one of the Parsky panels agreed with a unanimous recommendation of Rogan as "well-qualified" for the U.S. District Court for the Central District. Although only 50, Judge Rogan has already been a prosecutor, a state court judge (twice), an assemblyman, a congressman and director of the Patent and Trademark Office. He also brings with him an amazing life story.
He grew up as the son of a single mother in San Francisco 's Mission District. His mother was a waitress at a bar where your political ally, State Sen. John Burton, worked as a bartender. Rogan's grandparents raised him until they died. Then he lived with a great aunt, until she died. Then he went to live with his mother again. He dropped out of high school in 10th grade. He worked at a variety of odds jobs through his late teens before going back to night school and then community college. He got himself into Berkeley and, from there, made it to law school at UCLA, supporting himself by working 40 hours a week. From there, he began his impressive legal, judicial and political career. His difficult path informs his work as a judge, giving him firsthand knowledge of the some of the challenges faced by the troubled people who pass through his court. His example may even inspire hope in those who face the same challenges Rogan overcame.
Like you, Rogan also has guts. It is reasonable to disagree vehemently, as you do, with Rogan's vote to impeach President Clinton or his participation as a House manager during the 1999 Senate impeachment trial. But recall that Rogan was the only House manager who did not occupy a safe seat. His vote was an act of political courage and he lost his seat in 2000 because of it. His principled act should not disqualify him from service as a federal judge.
Your office has emphasized that you oppose Rogan's nomination because of his role in the Clinton impeachment. Your spokeswoman cited him in 2007 as "one of the most enthusiastic backers of impeachment - he thought President Clinton had committed high crimes and misdemeanors. The Senate certainly disagreed with that conclusion, as did Sen. Boxer."
Sen. Boxer, the impeachment was almost 10 years ago. Clinton himself has had a cordial correspondence with Rogan since then. Lanny Davis, one of Clinton 's most ardent defenders, has come out in support of Rogan's nomination, as have Clinton 's lawyers David Kendall and Nicole Seligman. Passionate liberals like Reps. Anna Eshoo and Pete Stark have also supported Rogan's nomination. So did your appointees on the judicial evaluation committee for the Central District also supported his nomination. It is time, Sen. Boxer, to put the impeachment behind us.
In addition, you should recall that you worked with Rogan in 1997 in support of the District Court nomination of Margaret Morrow. He accompanied you to introduce Morrow at her March 1997 Senate Judiciary Committee hearing. You will recall that Sen. John Ashcroft had placed a hold on this nomination. You raised Ashcroft's treatment of Morrow in 2001 when you spoke against his appointment as attorney general in 2001. Rogan had the courage to stand up, with you, for Morrow's nomination in 1997. After citing the bipartisan support for the Morrow nomination that was being thwarted by a hold, you said on the Senate floor on May 14, 1997, "Let's allow this woman's name to be placed on the floor and then those who have any objection can express their objections and vote no." Sen. Boxer, the current situation is the same. You should allow Rogan's nomination to go to the floor and let the Senate vote.
Removing your hold on Rogan's nomination would be about the future. There will be a different president next year. The balance of power in the Senate will likely ebb and flow in coming years, as it always has. If Sen. Obama becomes president, one day he will likely nominate a well-qualified person to the District Court in California who has taken her own controversial positions. It is not hard to imagine a situation where a Republican senator might have a strong, principled difference with such a nominee, and felt so strongly about that difference that he will put a hold on that future nomination. Further suppose this future situation involves a difference between the senator and the nominee that does not call into question the ability, fitness or temperament of the nominee and that the nominee found by bipartisan neutral evaluators to be a well-qualified candidate.
In that future situation, Sen. Boxer, you will likely believe that the nominee should have a confirmation vote before the Senate. But if you continue to hold Rogan's nomination now, in spite of its bipartisan support and the recommendation of judicial evaluators you appointed, any demand by you for a vote on that future nominee will ring hollow.
If, on the other hand, you remove your hold on Rogan in spite of your principled objections and allow the Senate to vote on his confirmation, your position in that future situation will be much stronger. You will be able to say, "I removed my hold on Judge Rogan in 2008. This nominee has been found by bipartisan evaluators to be well-qualified and to have the temperament and intelligence needed to be a district court judge. This nominee deserves a confirmation vote, just like the one I allowed Judge Rogan to have."
And you will be right.