McConnells Turn in the Barrel
"I am telling
you under oath that I will conscientiously enforce the law, including
laws and precedent that I dont 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.
confirmation is the latest battle in the war over President George
W. Bushs judicial nominees. The 10-member majority on the
Judiciary Committee has effectively abused the Senates "Advice
and Consent" role using ideology as the benchmark for
confirmation, regardless of each nominees 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 McConnells 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."
(Thats 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."
critics dare not dispute his qualifications, as he is well respected
as one of the nations 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."
defends those provocative writings as fulfilling his role as an
academic. "Ive 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 McConnells
confirmation] could send a message that scholars must either stop
writing or give up any hope of serving on the judiciary."
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 Generals 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 nations
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."
McConnell is an ideologue are unfounded. He openly opposed the impeachment
of President Clinton and spoke out against the Supreme Courts
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 McConnells confirmation will survive. His
notable record speaks for itself. But these days, that doesnt
seem to matter. His fate lies in the well of a grotesquely politicized
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,
its who you know."
And make no
mistake about it, the constitutional integrity of the Senates
role in the confirmation process has been shrunken to just that
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,
September 20, 2002]