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McConnell’s confirmation is the latest battle in the war over President George W. Bush’s judicial nominees.



McConnell’s Turn in the Barrel

"I am telling you under oath that I will conscientiously enforce the law, including laws and precedent that I don’t agree with... I will tell you with as much conviction as anything, that I believe in and am committed to the rule of law."

That was the recurring theme voiced by University of Utah Law School Professor Michael McConnell at his September 18 confirmation hearing for a seat on the 10th Circuit Court of Appeals before the Senate Judiciary Committee. He waited more than 16 months for his turn on the notorious hot seat that has been anything but judicious to those who preceded him since the Democrats took control of the committee more than a year ago.

McConnell’s confirmation is the latest battle in the war over President George W. Bush’s judicial nominees. The 10-member majority on the Judiciary Committee has effectively abused the Senate’s "Advice and Consent" role — using ideology as the benchmark for confirmation, regardless of each nominee’s qualifications to serve on the federal court. The majority has applied its overt standard of ideological litmus tests to acrimoniously defeat two nominees for the federal appeals courts thus far — Judge Charles Pickering and, more recently, Texas Supreme Court Justice Priscilla Owen. Both were denied votes on the Senate floor.

Like Owen and Pickering, McConnell is on the proverbial "blacklist" of nominees who radical special interests claim are "out of the mainstream." These groups, more and more parroted by the notorious "Gang of Ten," have made it a top priority to defeat each nominee on their target list.

The events leading up to McConnell’s hearing seemed all too familiar as critics lined up to attack his character and launch misguided indictments to paint him as an "extremist and ideologue," unfit to serve the bench. Press conferences were held where McConnell was labeled the "most dangerous Bush judicial nominee yet." (That’s odd, we thought Pickering was the most dangerous nominee. Or was it Owen?) Committee Democrats were armed with pages of talking points and pointed questions that could have been titled: "101 Ways to Defeat the Confirmation of Michael McConnell."

McConnell’s critics dare not dispute his qualifications, as he is well respected as one of the nation’s preeminent constitutional scholars and has received a unanimous "well-qualified" rating from the American Bar Association. Rather, they are attacking him on his extensive writings regarding issues of abortion, the Establishment Clause and federalism. If confirmed, they argue, McConnell "will lead the way in curtailing our basic civil rights and liberties."

McConnell eloquently defends those provocative writings as fulfilling his role as an academic. "I’ve written lots of controversial things," he said to the committee. "But you will be pleased with the way I conduct the judicial office." He stressed that he is grounded in the law and, as a judge, he "must act within the bounds of the law." Senator Orrin Hatch (R-UT), in arguing that academic freedom was at stake, said: "A defeat [of McConnell’s confirmation] could send a message that scholars must either stop writing or give up any hope of serving on the judiciary."

In addition to his distinguished academic career, McConnell has clerked at the federal appeals level for D.C. Circuit Judge J. Skelly Wright and at the U.S. Supreme Court for Justice William Brennan. He represented the United States in the Solicitor General’s office, served in other posts in the Executive Branch and has argued 11 cases before the Supreme Court.

More than 300 of his colleagues, many of them self-proclaimed liberals, from law schools throughout the country have openly endorsed his nomination. They praise his work as "path-breaking and influential" and compliment his "abiding commitment to fairness and the rule of law." Harvard Law School Professor Lawrence Tribe, who played a major role in the defeat of Judge Robert Bork to the U.S. Supreme Court said, "McConnell is among the nation’s most distinguished constitutional scholars and a fine teacher and appellate advocate." According to Yale Law School Professor Akhil Reed Amar, "McConnell is a man of moderation, balance, and judgment. In short, he has an ideal ‘judicial temperament.’" And University of Chicago Law School Professor Cass Sunstein described McConnell as "extraordinarily able, one of the best constitutional scholars in our country."

Charges that McConnell is an ideologue are unfounded. He openly opposed the impeachment of President Clinton and spoke out against the Supreme Court’s decision in Bush v. Gore, arguing that the state of Florida should have been given more time. These would be bizarre actions for a dyed-in-the-wool "conservative ideologue."

It is still uncertain whether McConnell’s confirmation will survive. His notable record speaks for itself. But these days, that doesn’t seem to matter. His fate lies in the well of a grotesquely politicized confirmation process.

Perhaps McConnell will get a pass because the heat is rising in the kitchen. Perhaps enough people of stature have spoken out in his defense. After all, as the age-old saying goes, "Politics is not what you know, it’s who you know."

And make no mistake about it, the constitutional integrity of the Senate’s role in the confirmation process has been shrunken to just that — Politics.

More than 300 prominent law school professors at institutions across the country have openly endorsed the confirmation of 10th Circuit Nominee Michael McConnell. To download a list of professors and their affiliations, click here.

[Posted September 20, 2002]