There are many fine candidates whom President Bush could nominate to succeed Justice O’Connor on the Supreme Court, but one of the very best is Judge Michael W. McConnell of the United States Court of Appeals for the Tenth Circuit. Judge McConnell is young (50), a strong and principled judicial conservative — an “originalist-textualist” — and a respected scholar whom it would be difficult for Democrats to oppose. He commands the respect of liberal legal scholars despite the fact that he is also solidly conservative on relevant constitutional issues. He would be a strong pick — a signal that President Bush selected the best person for the position.
Oddly, however, Judge McConnell has recently been attacked in the bizarre WorldNetDaily column by attorney Andy Schlafly: “McConnell: A different type of Souter.” Schlafly makes the absurd claim that Judge McConnell would be “every bit as hostile to conservative legal principles as Souter turned out to be.”
Schlafly’s position is simply preposterous. Schlafly apparently either hasn’t done his homework or hasn’t evaluated the evidence with much care. Judge McConnell is virtually the jurisprudential opposite of David Souter. Judge McConnell’s twenty-year career as a law professor could not have made more clear his view that Roe v. Wade was not only wrongly decided, but utterly indefensible as a matter of constitutional law. In January 1998 Judge McConnell wrote a Wall Street Journal op-ed column with the telling headline: “Roe v. Wade at 25: Still Illegitimate.” (The column is unfortunately not available online.)
Nevertheless, Schlafly cites Judge McConnell’s statement in his 2002 confirmation hearing on his nomination to the Tenth Circuit that Roe is “as settled as an issue in current constitutional law.” However, virtually nothing in modern constitutional law is truly “settled.” To say that Roe is as settled as other issues in constitutional law is not to say much. Any sophisticated reader of Judge McConnell’s statement would never mistake it for a pledge of fealty to Roe as precedent.
Moreover, the statement is, unfortunately, an accurate description of the status of Roe. The Supreme Court has consistently reaffirmed Roe. The Court’s 1992 decision in Planned Parenthood v. Casey was about nothing so much as the attempted entrenchment of Roe on stare decisis grounds. The Supreme Court has made its attempt to “settle” Roe about as clear as can be. Yet Judge McConnell’s Wall Street Journal op-ed came after Casey. Finally, Judge McConnell’s statement came in the context of hearings on his nomination to a lower federal court. At most, it can be read as indicating a belief that lower court judges should follow higher court precedent, no matter how strongly they disagree with it.
Schlafly also quotes, ridiculously out of context, Judge McConnell’s comment that “the right to abortion itself remains secure” from a 1997 law reveiw article attacking the Court’s substantive due process jurisprudence. Judge McConnell made clear that he viewed substantive due process as illegitimate. The article was an extended commentary on the Court’s recent Glucksberg decision, rejecting a claimed substantive due process right to physician assisted suicide. Judge McConnell noted how the methodology of Glucksberg would show that Roe was wrong, yet the Court obviously didn’t so rule in Glucksberg. Thus, the right to abortion remained secure, as held in Casey, notwithstanding the manifest irreconcilability of Casey and Roe with Glucksberg. Schlafly somehow construed this comment as if Judge McConnell were embracing Roe or welcoming the Court’s preservation of it. Nothing could be further from the truth.
Judge McConnell represented and defended the Boy Scouts in the Supreme Court litigation that preserved the Scouts’ ability to exclude gay scoutmasters. Souter dissented. Judge McConnell won the landmark case of Rosenberger v. University of Virginia, upholding inclusion of religious student groups in university funding decisions, without discrimination against their speech because of its religious viewpoint. Souter wrote a lengthy dissent. There is no basis whatever for Schlafly’s conflation of Judge McConnell and David Souter.
Schlafly weirdly asserts that Judge McConnell would strike down the Solomon Amendment, which requires universities to give equal access to military recruiters on campus. There is absolutely no basis in anything Judge McConnell has written that would support such a conclusion, and Schlafly offers none.
Judge McConnell is probably the nation’s leading conservative legal scholar and judge on questions of religious liberty. He is a vigorous defender of the right to the free exercise of religion. Schlafly perverts this into a charge that Judge McConnell is a free- wheeling “libertarian.” Apparently, however, Schlafly’s view is that Judge McConnell should be opposed because he favors free exercise of religion for all religions, and thinks that government coercion of religious practice through the public schools (including government-written prayer in classroom contexts) is unconstitutional. Simply put: Michael McConnell would be the best defender of religious liberty against the power of government that the Supreme Court has ever known.
With the retirement of Sandra Day O’Connor, and the likely retirement of Chief Justice Rehnquist soon, President Bush will have a chance to make more than one excellent pick for the Court. Michael McConnell would be a great pick. That is to say nothing about many, many others who would be excellent as well. Conservatives of all stripes obviously seek to put the Court on the right path. Columns like Schlafly’s, however, do not deserve to be taken seriously by anyone who cares about the issues.
UPDATE: Reader Stuart Buck of The Buck Stops Here has kindly forwarded us this link to Judge McConnell’s 2002 Wall Street Journal column: “Roe v. Wade at 25: Still illegitimate.” Judge McConnell’s Wall Street Journal columns are collected here. For an excellent essay on the proper understanding of religious liberty that includes a critique of Judge McConnell’s views, see Thomas West’s “Religious liberty: The view from the Founding.” See also West’s “Religious freedom: The Founders vs. Judge Noonan.”
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