ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

Judge Michael McConnell is a leading candidate for SCOTUS. For more info about him, the place to start would be his circuit court nomination hearing. Excerpts regarding polygamy and abortion are here. The complete hearing report is available online as both text and pdf. Just click here and scroll down to "Confirmation Hearings On Federal Appointments" (it's the 22nd item listed, and that item also covers the Estrada hearing).

McConnell's appeals court nomination was strongly supported by liberal academics such as Lawrence Tribe and Cass Sunstein, which is enough to at least give some pause.

Also, Judge McConnell seems inclined toward an activist role for the courts in regulating social policy, such as marriage laws. It appears from the hearing report that he would strike down laws against polygamy, for example, as a violation of First Amendment religious freedom. This would overturn Supreme Court precedent going back to 1878.

Regarding Roe v. Wade, he said at his hearing that it is "as settled as any issue can be in constitutional law," and that the right to an abortion reflects "the consensus of the American people." But characterizing Roe as being as settled as Marbury v. Madison or Brown v. Board of Education seems like quite a stretch.

UPDATE: For those seeking further info about Judge McConnell, here are a few additional resources:

* Andy Schlafly authored a June 10, 2005 article titled "McConnell: A New Type of Souter." Scott Johnson rebutted Schlafly on July 8, 2005 at Power Line.

* Byron York wrote an article in 2002 about his circuit court confirmation hearing.

* Judge McConnell signed this pro-life petition in 1995.

* Edward Lazarus urged fellow liberals in 2002 to not block McConnell's circuit court nomination. Lazarus says Roe was wrongly decided but can rest on other constitutional grounds.

* McConnell wrote this law review article in 1992 about religion and the First Amendment (suggesting that the Free Exercise Clause gives rise to a limited right to abortion). The article is titled, "Religious Freedom at a Crossroads," 59 U. Chi. L. Rev. 115 (1992).

* During his circuit court confirmation hearing, McConnell testified that this old Supreme Court case from 1878 about polygamy wrongly allowed Congress to violate the First Amendment's Free Exercise Clause. McConnell has written that the polygamist in this Reynolds case, "asked only that the government leave him and his wives alone." (This quote is from an article he wrote in a book by S. Olyan titled, "Sexual Orientation & Human Rights in American Religious Discourse.")

* This 1993 Supreme Court case referred to the old Reynolds polygamy case that McConnell criticized at his confirmation hearing. Justice Kennedy wrote for the Court that Reynolds involved "a social harm [that] may have been a legitimate concern of government for reasons quite apart from discrimination."

* Brian Fletcher, at the Supreme Court Nomination Blog, has put together a very useful profile of Judge McConnell, accompanied by very intelligent comments from the public.

* Here's an essay that McConnell wrote on December 13, 2000 for Slate, arguing that the Supreme Court's decision in Bush v. Gore was a "failed compromise" and was "less than compelling" and was "surprising" and showed a "lack of political judgment." McConnell wrote that the U.S. Supreme Court should have "remanded to the Florida court, as Justice Breyer suggested." McConnell argued that it would have been "reassuring" if more recounting had been done in the Democratic counties that were hand-picked by Al Gore in order to scrape up more Democratic votes, in conjunction with commencent of partial recounting in other counties.

* A collection of Judge McConnell's writings in the Wall Street Journal is here.

* Then-Professor McConnell had an online debate at Slate with Professor Ronald Dworkin, in 1997, regarding the question of whether anti-suicide laws violate the Due Process Clause. McConnell took this position:

The purpose of the due-process clause is not to allow judges to decide controversial issues for themselves, but to require the states to respect rights that, through tradition and experience, the nation has come to recognize as fundamental.

Although this position would certainly constrain judges more than Professor Dworkin's position, I fail to see how McConnell's position is justified by the text of the Fifth and Fourteenth Amendments, or by the intentions of those who wrote and ratified those amendments. I wrote in detail about this subject here.

* Here's an informative article from Legal Times dated June 6, 2005.

* Finally, here's a book review that McConnell wrote, critiquing Justice Stephen Breyer's book Active Liberty.

All of that should keep you busy for awhile. :-)