THE MISCASTING OF MICHAEL MCCONNELL: The Curse Of Excellence

By SAM WILLIAMSON

Tuesday, Jul. 03, 2001

Professor Michael McConnell, recently nominated for a federal judgeship on the Tenth Circuit Court of Appeals, is frequently portrayed as extremely ideological — both in the hearings held by Senator Charles Schumer (D-NY) on the role of ideology in judicial confirmations, and in Op Eds on the same topic. Based on this criticism, there has been speculation that McConnell's nomination may fail.

In truth, though, this criticism of McConnell is unfounded. McConnell's opponents should admit that they oppose him because of his substantive views and potential Supreme Court candidacy, not his purported extremism. A closer look at McConnell and his background shows that there is little basis for any charges of extremism, and that McConnell is actually an eminently well-respected member of the legal academic community.

The Truth about McConnell's Beliefs and Reputation

McConnell is currently a professor of constitutional law at the University of Utah. He has written prolifically on a number of constitutional issues. Most notably, he has contended that the original understanding of the Fourteenth Amendment should have been used as the underpinning of Brown v. Board of Education, and written in depth about the way that the state should interact with religion. Personally, McConnell is a man of strong religious faith.

For some, this adds up to extremism, but a more complete picture of McConnell belies that charge. He served as a law clerk for the legendary liberal jurists Judge Skelly Wright and Justice William Brennan, and has since become a prominent academic and Supreme Court advocate. His ability to work for and get along with those of sharply different political positions, and to rise within mainstream legal circles, shows he is exactly the type of person who will engage in the collegial discussion of ideas that we desire of appellate judges, not an ideologue bent on changing the law to fit his personal beliefs.

An Appeal that Transcends Ideology

McConnell is a much more complex and thoughtful person than his detractors suggest. People who know McConnell personally are almost uniformly in favor of his nomination and find him to be a person of tremendous integrity and humanity — hardly the ogre his foes would depict.

As a recent former student, I found him to be uniformly considerate of opposing views, courteous in response to those who disagreed with his own positions, and totally open-minded in discussing the difficult questions with which he is engaged.

Indeed, the teaching reviews submitted by an extremely ideologically diverse class at Harvard Law School were so uniformly glowing that another professor admitted to being almost embarrassed to read them. Unsurprisingly, McConnell has since been offered a full professorship at Harvard Law — hardly an environment welcoming to "conservative extremists."

Other, more lofty fans of McConnell include his Senate sponsor Orrin Hatch and liberal constitutional scholar Laurence Tribe.

Using McConnell's Scholarly Success Against Him

What, then, is the possible basis for rejecting McConnells's nomination? As it turns out, it is McConnell's excellence that works against him.

McConnell has written too much, too well — and perhaps too influentially. Some of his articles express innovative thoughts on the Establishment Clause and other important constitutional issues, and their placement in important legal journals makes them hard to dismiss. Ironically, his views may be threatening to opponents precisely because they are plausible and reasonable — the type that could convince a colleague, or change the law.

Similarly, McConnell may have argued too much and too well: His persuasive advocacy in landmark Supreme Court cases like Rosenberger v. University of Virginia, Mitchell v. Helms, and Bowen v. Kendrick, led to victories on grounds that his opponents bitterly contest. All three of these cases stand for the proposition that religious institutions deserve the same treatment as other recipients of government funds.

More specifically, Rosenberger held that the Free Exercise Clause does not allow the government to exclude groups simply because they are religious. And Mitchell and Kendrick held that the Establishment Clause does not forbid religious groups from receiving funds along with secular institutions when they are performing the same services.

McConnell may now have to lose for winning. Had he a less successful career in print and before the bench, he would be much more likely to gain confirmation. In short, one cannot help but feel that the Senate would prefer to confirm mediocrity rather than approve a real star that may occasionally raise important ideological disagreements.

A Commitment To Following Precedent

The charges of extremism against McConnell ring even more hollow when put in the context of the office to which he is being nominated. In contrast to a Supreme Court Justice, a circuit judge's opportunities to make new law are fairly limited. Often he is simply called upon to apply circuit and Supreme Court precedent. When cases of first impression do arise, the key is that he use good judgment to resolve them — frequently relying on analogous precedent as his guide.

None of McConnell's opponents questions his commitment to stare decisis. Their purported concern, therefore, must be that when presented with an issue of first impression, he will immediately succumb to the irresistible temptation to put his own extreme ideological imprint on the constitution.

This concern is misguided, for two reasons. First, as shown by the number of ideological opponents who have endorsed his nomination, his doctrinal theories are well reasoned and hardly extreme. Tribe's outspoken support demonstrates that these theories are not out of touch with the current mainstream American legal thought. Consider that some conservatives would make exactly the same allegation, of extremism, against Tribe — and yet Tribe supports McConnell.

Senator Schumer seems worried, in particular, about the fact that McConnell has criticized Roe v. Wade as a poor example of constitutional reasoning. The truth is that there are constitutional scholars spanning the political spectrum who feel exactly the same way— even though they may like the end result in Roe. Even Catharine MacKinnon has suggested that Roe might have been better decided on equal protection than on privacy grounds. And again, McConnell's nomination is for an appellate judgeship where precedent governs, and McConnell's honest (and mainstream) criticism of Roe is hardly a commitment to disobey its precedential force.

McConnell's opponents — including columnist Edward Lazarus, in a column for this site — also express concern about McConnell's views on the relationship between religion and the government. But this area is one in which the Supreme Court has been exceptionally active — and in which a solid majority has made the law clear. (For example, the recent holding in Santa Fe Independent School District shows that six Justices currently favor an endorsement test for Establishment Clause questions — in which the central question is whether the government act at issue endorses religion, or a particular religion.)

Thus, in the very unlikely event that McConnell would attempt to re-write law in this area, the Supreme Court would certainly intervene.

Supreme Court Fears

This leaves the Democrats' real fear about McConnell: As a young appointee to the Tenth Circuit, and an eminent one, he would be on the short list for every Republican appointment to the Supreme Court from now until sometime after 2020. And once he is on that shortlist, the Democrats know that McConnell will be an extremely difficult nominee to defeat.

The more McConnell is exposed to the American public and the more the public comes to appreciate his innate decency and reasonableness, the harder it will be to defeat his potential Supreme Court candidacy. Opponents know they have to "Bork" him now, based on misinformation, or never — for an accurate understanding of his views simply precludes him from being miscast as an out-of-touch extremist.

The Democrats' motivation is therefore similar to the Republicans' actions in delaying Judge Sonia Sotomayor's nomination to the Second Circuit Court of Appeals, because they knew she would be a formidable Supreme Court candidate. (Not only was Sotomayor reputed to be a excellent trial judge, she also had demographic appeal and an inspiring American Dream story to recommend her.)

The Republicans grudgingly relented and confirmed Sotomayor, and the Democrats should do the same in this case. A practice of kneecapping the stars brought forward by the other side of the aisle, before they can even begin to rise, benefits neither party — and will ensure that the Court's legendary Justices never have modern counterparts. McConnell represents the very best of American legal thought, both in theory and practice, and deserves confirmation to the Court of Appeals.


Sam Williamson is a law clerk for Judge Gilbert S. Merritt of the US Court of Appeals for the 6th Circuit. Prior to attending Harvard Law School, he served as an infantry officer in the U.S. Marine Corps.

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