Left's Big Fight Against Nomination of Michael McConnell Fizzles
Left's Big Fight Against Nomination of Michael McConnell Fizzles
Activist groups and liberal law professors divide
When George W. Bush announced his initial slate of appellate nominees in May 2001, liberal activist groups immediately identified law professor Michael W. McConnell as one of their top targets. A full 19 months later, in a surprisingly placid end to a grueling battle, the Senate confirmed McConnell’s nomination to the Tenth Circuit by voice vote, with not a single senator objecting.
Ironically, two of the architects of Democrats’ strategy of escalated obstruction, law professors Cass Sunstein and Larry Tribe, helped to pave the way for McConnell.
* * *
By 2001, Michael McConnell had established his reputation as one of America’s most outstanding constitutional scholars. A prolific author on a broad range of topics, McConnell taught law at the University of Chicago for over a decade before making the surprising decision to relocate to the University of Utah in 1997. McConnell happily traded the prestige of the University of Chicago for a better environment in which to raise his children.
When you add in his distinguished academic achievement, his clerkships on the D.C. Circuit and the Supreme Court, and his years in the Office of the Solicitor General, McConnell at age 45 had a golden résumé for a federal appellate nomination. That said, by any objective measure, he was a very odd fit for the particular seat to which he was nominated: a Tenth Circuit seat in Utah.
The seats on federal appellate courts are not in fact designated by law to named states. But Senate tradition—something often more forceful than law—identifies seats by state. The seat to which McConnell was nominated was a Utah seat, and its only previous occupant was a judge whose ties to Utah and the Utah legal community were robust, to put it mildly. Judge Stephen H. Anderson was born in Salt Lake City, studied at BYU, earned his law degree from the University of Utah, practiced law in Salt Lake City for more than two decades, and was president of both the Utah State Bar and the Salt Lake County Bar Association. Anderson was also Mormon, not an incidental fact given that the population of Utah was nearly 80% Mormon when Ronald Reagan appointed him to the Tenth Circuit in 1985.
By contrast, McConnell moved to Utah only in the mid-1990s, had no family ties there, and was not even a member of the state bar. As a Presbyterian, McConnell was part of a minuscule religious minority in Utah. Nor did he have any connections to any of the other states in the Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, and Wyoming. (The Tenth Circuit also includes the portions of Yellowstone National Park that are in Idaho and Montana.)
But the only real test whether a judicial candidate has sufficient ties to a state is whether the home-state senators say so. Here McConnell was in excellent shape. Senate Judiciary Committee chairman Orrin Hatch (my former boss) deeply admired McConnell and his scholarship on religious liberty. Hatch and McConnell had worked together extensively, including on the drafting and enactment of the federal Religious Freedom Restoration Act. Hatch was delighted by the prospect that McConnell would occupy a Tenth Circuit seat in Utah, and he persuaded Bob Bennett, his fellow senator from Utah, and other important Utahns to welcome his nomination.
* * *
The biggest reason that McConnell was opposed by liberal activist groups is that he was a vigorous and cogent critic of Roe v. Wade. To offer one illustration: Just three years before his nomination, McConnell published an op-ed in the Wall Street Journal on the 25th anniversary of Roe, titled “Roe v. Wade at 25: Still Illegitimate.” He decried the reasoning of Roe as “an embarrassment to those who take constitutional law seriously” and outlined “a pretty convincing argument” that unborn human beings “are entitled to protection from killing and other forms of private violence.”
Shortly after Bush announced his nomination, McConnell learned that a New York Times reporter was scouring his record, contacting former students and law professors in an apparent effort to dig up damaging dirt on him. McConnell tells me that he found the investigation “scary.” It didn’t help that one liberal professor told him that the reporter shut his notebook and ended the interview when the professor said he supported McConnell’s nomination. But the actual article, published at the end of May 2001, ended up being fairly balanced and quoted several prominent liberal law professors—Akhil Amar, Cass Sunstein, and Larry Kramer—speaking very highly of him:
“He’s going to be an influential jurist, not just on his circuit but on all the other circuits and on the Supreme Court,” said Akhil Reed Amar, a constitutional law expert at Yale who supports Mr. McConnell's nomination.
“He’s very open-minded and he’s not an ideologue,” said Cass R. Sunstein, a law professor at the University of Chicago Law School, who supports Mr. McConnell.
Larry Kramer, a liberal constitutional law scholar at New York University, disagreed [with Ronald Dworkin’s criticism], saying Mr. McConnell knew the importance of keeping his religious views separate from his responsibilities as a judge.
“He is capable of separating those roles and it means a lot for him to do so,” Mr. Kramer said.
Indeed, McConnell’s nomination ended up creating a deep divide between liberal activist groups and liberal academics. Lots of liberal law professors—Jack Balkin and Sanford Levinson, to pick out two prominent examples—signed their names to a letter from more than 300 professors. Their letter affirmed that McConnell “provides a model of the wisdom, intelligence, temperament, craftsmanship, and personal qualities that can make a judge outstanding” and declared him “a nominee of exceptional merit whose confirmation warrants bipartisan support.” In addition to signing the group letter and writing a New York Times op-ed in support of McConnell, Douglas Laycock submitted a devastating rebuttal to the “false attacks” made by the likes of People for the American Way and Americans United for Separation of Church and State.
The support that McConnell received from Cass Sunstein and Larry Tribe was especially noteworthy, as Sunstein and Tribe had been two of the chief strategists who, at a retreat in 2001, urged Democratic senators to “change the ground rules” and fight hard against Bush’s judicial nominees. Beyond signing the group letter, Sunstein wrote his own letter to committee chairman Patrick Leahy and published a Wall Street Journal op-ed (“A Conservative Nominee Liberals Should Love”) on the eve of his hearing.
Tribe’s support, while much less public (he emailed Leahy) was particularly gracious, as McConnell had written a deliciously devastating review (“How Not to Promote Serious Deliberation about Abortion”) of Tribe’s terrible book Abortion: The Clash of Absolutes. I can’t resist providing an excerpt:
Professor Tribe could have written a great and important book.
Unfortunately, it turns out that Professor Tribe is too little informed about the ethical, scientific, and legal arguments of opponents of abortion to be able to explain them, too unacquainted with pro-life people to understand their motivations or address their concerns, too committed to his own perspective to see things through the eyes of the other side, and too much a lawyer to put aside, even for a moment, the opportunity to argue his case. Tribe proclaims the need to move beyond the clash of absolutes, but his only proposals are that one side's absolutes should be adopted and the other side's rejected.
* * *
Despite the strong support from liberal academics, McConnell knew that he had an uphill battle at his hearing. Committee Democrats were poised for a fight, and if they stayed united in their opposition, the committee wouldn’t have the votes to send McConnell’s nomination to the Senate floor for action. So against the advice of his Department of Justice handlers, McConnell resolved—much as Robert Bork had done at his Supreme Court hearing in 1987—not to take the usual route of looking for ways to avoid answering questions but instead to provide a comprehensive defense of his extensive record and to go toe to toe, where necessary, with his interrogators.
McConnell’s testimony at the exhausting day-long hearing was, in the words of NPR’s Nina Totenberg, “a tour de force.” McConnell himself recalls that the tone of the hearing changed dramatically after Senator Ted Kennedy’s objections to McConnell’s criticisms of the Freedom of Access to Clinic Entrances Act of 1994 fell flat. Kennedy culminated his questioning by quoting with disapproval McConnell’s statement that the penalties under the draft FACE Act were “so harsh” that the law would “frighten[] off lawful as well as unlawful protest.” McConnell simply responded:
And, Senator, you offered an amendment which cut the penalties in half, and that amendment was then accepted by the committee. I assume that at some level you must have—I can’t put words into your mouth, but you must have at some level agreed with the criticism that the penalties were too harsh.
***
On November 14, 2002—nine days after the elections that gave Republicans control of the Senate in the next Congress—McConnell’s nomination came up for a vote in the Judiciary Committee. In a highly unusual move for a contested nomination, Judiciary Committee chairman Leahy called for a voice vote on McConnell’s nomination and declared the yeas to have prevailed. Leahy’s apparent reason for the voice vote was to protect some committee Democrats from having to go on the record for or against McConnell.
The very next day, with all 100 senators waiving procedural objections, the Senate confirmed McConnell’s nomination by voice vote.
***
Michael McConnell served with distinction on the Tenth Circuit for seven years. George W. Bush passed him over for the two Supreme Court vacancies that arose in 2005. Discovering that his higher vocation was to legal scholarship, McConnell resigned his judgeship in 2009. Stanford law school hired him to teach constitutional law and to direct its Constitutional Law Center, duties he continues to carry out.