Friday, June 03, 2005

Is it McConnell?

So it seems like the latest line is that Rehnquist is about to step down and McConnell is going to replace him (but Law, Life, and Libido thinks the Chief's got another year in him). I've already registered my support for McConnell, and certainly hope the news is accurate.

Uncorrelated calls McConnell "compelling" and thinks he should get through with ease. I'd qualify that to say he should get through with ease, but the Democrats might try and pick a fight just for the sake of having one. However, this Denver Post column, linked to by TalkLeft, gives me some cautious optimism. Senator Chuck Schumer (D-NY), praised him as having "broke from the mold," and frankly I don't think the Democrats can mount a filibuster without Schumer's support.

I am particularly distressed by the brief in opposition to McConnell (this was back when he was nominated for the 10th Circuit) filed by People for the American Way. While admitting "great respect for his intellect and legal skills," PFAW then proceeds to distort McConnell's positions on several areas of importance. For example, they criticize his support for U.S. v. Morrison, a 5-4 decision striking down the Violence Against Woman Act as unconstitutional, saying it showed a "disregard for women's rights." Yet as the brief admits, McConnell's position has nothing to do with woman's rights at all, it is a statement that beating women has nothing to do with Interstate Commerce, the clause used by congress to justify the bill. Nowhere does the brief even challenge this argument while it darkly suggests McConnell is some sort of caveman who wants to protect abusive husbands. Presumably, similar laws passed on a state level would pass constitutional muster easily.

PFAW also attacks what they say is McConnell's critique of "one person, one vote." However, they admit that McConnell would have achieved the exact same result as PFAW desires, except he would use the Guarentee Clause of the constitution and PFAW is content with the (status quo) Equal Protection Justification. Since I personally would like to see a reinvigorated Guarentee Clause, McConnell's position does not strike me as particularly troublesome.

The overarching problem is that even where PFAW seems to score some points, I don't know if I can trust them because on the issues where I actually do know some of the background, I can see they are clearly distorting the record. This is simply shameful. So, while the PFAW brief (might) give me some reason to disagree with particular legal positions held by McConnell, I cannot say that it shakes my faith in his fundamental fairness or legal acumen.

Meanwhile, My Election Analysis thinks John Roberts would make a better choice, and says that McConnell hasn't been as "solid" as he would have hoped starting on the 10th Circuit. It is implied from the context, although I can't say for certain, that MEA means this to say that McConnell hasn't been as conservative as he would have hoped--bad news for him, maybe, but good news for me. The Asylum is making much the same point--they think McConnell might be too "activist" (what the hell?) for their tastes, and they have the gall to say he isn't an "originalist" (there probably is not a more prominent (and honest) originalist thinker in America today than McConnell). Hey, if both the left and right hate him, how bad can he be?

In the Agora (Cross-Posted here) sums up my feelings well:
McConnell is solidly conservative, but not in a partisan manner. He's an intellectual conservative, not a political conservative and that carries much weight with me. He has a long track record of scholarship that will provide plenty of fodder for the various liberal advocacy groups, particularly PAW and Americans United, to oppose him. But ultimately, he is confirmable. He has broad support from legal scholars, including many prominent liberals, and he has proven to be a consistent conservative rather than a partisan one (for example, he publicly opposed the impeachment of Bill Clinton and spoke out strongly against the Bush v. Gore Supreme Court decision). Given the other potential choices, McConnell is about as good as liberals or libertarians could expect to get as a nominee given the current configuration.

Folks commenting over there have raised questions about McConnell's Church/State jurisprudence. I personally am not too troubled by it. McConnell is an accomodationist, which is a position I have alot of sympathy for. He has scathingly denounced the Oregon v. Smith decision, a case (majority by Scalia) that essentially demolished free exercise protections for religious minorities. However, he has refrained from taking the hardline conservative "prayer in school is a-ok" position, which is what counts for me. As this article by two liberal law professors, among the 300 who have written in support of Judge McConnell says (note: the article was written when McConnell was a candidate for the 10th Circuit Court of Appeals three years ago), "McConnell has also located himself directly opposite Scalia on key establishment clause issues. For example, Scalia (in dissent) voted to uphold government-sponsored public prayer services at public school commencement exercises. McConnell views such events as unconstitutional." If this is the case I think it is (Lee v. Weisman), then McConnell has spoken out in favor of perhaps the most important establishment clause decision in the past two decades. Lee has come under almost as much fire from the conservative legal sphere as Roe, but unlike Roe it is a superbly reasoned opinion consistent with common-sense jurisprudential positions, and also unlike Roe it is not the type of case that should be left to political actors. Democrats should give McConnell some credit here, he is offering his endorsement to one of the biggest feathers (and biggest targets) in the liberal first amendment hat.

Indeed, it is the work of McConnell, among others, that has caused me to reassess my formerly strict-separationist stance as dangerous for religious dissidents. Here's his argument:
...what it means to be free and equal was a contested question....There is [a] possibility that...all legal distinctions based on religion would be abolished. Disabilities would be lifted...Under this vision, the state itself is secular, and knows not the creed of its citizens; religious practice is purely private, and receives neither the encouragement nor even the acknowledgement of the state...

Such a vision was adopted in France at this time as a result of the French Revolution:
Jews, according to the terms of emancipation, were expected to divest themselves entirely of their national character—they were to give up the civil aspects of Talmudic law; disavow the political implications of Jewish messianism; abandon the use of Yiddish; and, most importantly, relinquish their semi-autonomous communal institutions. They were to become like Frenchman in every respect, save religion.

[cite omitted] One prominent French legislator explained that no one could be his fellow citizen 'who does not wish to drink or eat with me, who cannot give me his daughter in marriage, whose son cannot become my son-in-law, and who, by the religion he professes is separated from all other men. Only when Jews do what other men do,' he said, 'what the constitution and law requires of us all, will we welcome them as citizens.' [cite omitted]

The problem, though, was that this vision of secular equality would force Jews to abandon aspects of their Jewishness. To be sure, it would protect them from laws that explicitly singled out Jews for disabilities, and it would maintain a secular public order in which all citizens could participate on the basis of their shared characteristics. It might well spare persons...who do not share the religious sensibilities of their countrymen the burden and embarrassment of public recognition of religion. But it would not protect the ability of religious minorities to maintain their differences from secular society. It would provide no protection for religious practices at odds with the secular interests of the majority. To put it another way, forcing [a Jew] testify on Saturday would formally treat him equally with other citizens, but its impact on him and other Jews would be quite unequal compared with the Protestant majority. You might consider an analogy to the issue of disabilities: In order to ensure that individuals with disabilities have an equal opportunity to participate, it is sometimes necessary to make special accommodations (wheelchair ramps, sign language interpretation, and so forth)[Michael W. McConnell, John H. Garvey, Thomas C. Berg. Religion and the Constitution. (New York: Aspen Law & Business, 2002): 11-12]

Essentially, this is the same argument liberals use to justify "race-consciousness," in order to protect racial minorities, the state cannot be blind to race, because then it will never be able to recognize racism except in the most extreme circumstances. Along the same lines, the government has to be able to accomodate religious minorities whose religious beliefs might require that they differ slightly from the social norm.

Even if you don't agree with it, it's still a compelling and well thought out argument. And everything that I've read by McConnell falls in that category, and suggests that he is an intelligent, thoughtful, and insightful thinker and judge. I would be honored to have him on the Supreme Court.

In a prior post, I wrote the following:
This brings me to something I've wanted to say for a long time. I've read Judge McConnell's works, and have been incredibly impressed. The man is frankly brilliant. I support the Democrats on the filibuster option, and am willing to say it should have been used on nominees like Judge Rogers. If the Democrats decide to filibuster a McConnell nomination, I will be outraged, and guarantee you will hear about it on this blog.

I am begging the Democrats--do not go down that road.

UPDATE: Tony Mauro has an excellent article on Judge McConnell. Althouse loves the description of him as a "perplexing blend" of liberal and conservative, and I do too.

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