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Why The Senate Judiciary Committee Should Support Michael Mcconnell's Nomination To The U.S. Court Of Appeals For The Tenth Circuit

By AKHIL REED AMAR AND VIKRAM DAVID AMAR
Friday, Nov. 01, 2002

If the Republicans regain control of the Senate next week, McConnell will be a virtual shoo-in. None of the Republican members of the Judiciary Committee (or the Senate as a whole, for that matter) has given any hint of opposition to him.

But if the Democrats retain control, confirmation will hinge on the willingness of at least one Democrat on the Committee to join Republicans in allowing McConnell's name to reach the Senate floor. When McConnell appeared before the Committee in late September, most Democrats treated him with obvious intellectual respect, and even friendliness. But no Senate Judiciary Committee Democrat has yet publicly endorsed his nomination.

Last Spring, we wrote an open letter to Judiciary Committee Chairman Patrick Leahy endorsing McConnell. (In that letter we reminded Leahy, and today we remind readers, that we are Democrats who voted for Al Gore, and who have publicly criticized several Bush Administration policies.)

In today's column, we explain why we continue to support McConnell, and why we find unconvincing several of the unflattering things that have been said about the nomination in some prominent places.

McConnell Versus Owen

In a late September column in the National Review Online, Byron York wrote that "there would seem to be no logical, principled way a Democrat who voted against [Texas Supreme Court Judge Priscilla] Owen could vote in favor of McConnell." But that is simply not the case.

According to York, Owen failed to win Judiciary Committee approval for her nomination to the U.S. Court of Appeals for the Fifth Circuit because of "her opinions in a few cases involving" Texas abortion laws. McConnell's strong anti-abortion views are well known, reports York. So, York asks, what's the difference? York's answer: McConnell enjoys the backing of "the powerful liberal academic establishment," whereas "Priscilla Owen, it seems, just didn't know the right people."

In a column in the November 4 issue of the American Prospect, Chris Mooney quotes York's analysis prominently and approvingly.

The York/Mooney argument gets things exactly backward. McConnell is not being treated more generously than Owen because he is an academic. Indeed, if anything, he has been subjected to harsher scrutiny.

McConnell's criticism of Roe, by contrast, has appeared in academic articles. They do not remotely provide evidence that a Judge McConnell on a circuit court would fail to apply binding Supreme Court precedent. Appellate judges, after all, routinely apply binding Supreme Court precedent with which they may personally disagree.

And every indication is that McConnell, if confirmed, would be faithful to this duty. When asked at his hearing about his view of the role of an inferior court judge, McConnell was emphatic in affirming that such a judge must follow the Supreme Court's marching orders. Perhaps Priscilla Owen said something similar in her hearings; but in her case, there were actual judicial opinions that, according to critics, suggested otherwise. This is not true of McConnell.

In fact, much of McConnell's academic writings, and his other writings and doings as a lawyer, suggest that he has a strong and attractive understanding of the proper roles of various actors in our legal system. He understands, in other words, how the academic's role is different from the advocate's, how both are different from the judge's, how lower court judges are different from Supreme Court Justices, how judges should not become legislators, and so on.

York's crack about knowing "the right people" also slights the fact that McConnell is, in the words of the Washington Post editorial page, "one of the best qualified nominees a president of either party has advanced for a court of appeals vacancy in many years." He possesses a set of accomplishments and credentials - as both a scholar's scholar and lawyer's lawyer -unmatched by Judge Owen, or indeed by just about anyone else in McConnell's generation.

McConnell Versus Bork

Once upon a time, a fellow named Robert Bork also came to the Senate Judiciary Committee with an impressive scholarly and legal resume. This leads Chris Mooney - in the same American Prospect piece - to wonder why McConnell has so much more academic support than did Bork.

Three hundred law professors, many of them avowed liberals, signed a letter endorsing McConnell - the strongest showing of enthusiasm either of us can recall for an appellate nominee. (Full disclosure: we are among the 300.) All of which prompts Mooney to ask, "what are these liberals thinking?"

Mooney floats a variety of possible answers, most of which reflect rather poorly on the 300 signatories. The catchy title of Mooney's article--"Impaired Faculties?"-captures his general tone and theme.

Perhaps, Mooney suggests, law professors are simply charmed by McConnell's engaging persona, in contrast to Bork's "haughty and arrogant" demeanor. Perhaps liberal law professors are simply indulging in "wishful thinking." Perhaps, Mooney writes, McConnell's "liberal boosters" are hoping for payback from Judge McConnell when they come to argue before him or are hoping themselves to be nominated to the bench someday and to benefit from the golden rule they now extend to McConnell.

Mooney ignores one obvious difference between McConnell and Bork: Bork was nominated for the Supreme Court, a position raising very different stakes. (As we have explained before, many Senators quite comfortable with a Judge Bork on the DC Circuit, had legitimate reservations about a Justice Bork who would be able to alter the trajectory of Supreme Court jurisprudence; again, there is a key difference between a Justice who helps create Supreme Court precedent and a lower court judge who must follow high court precedent.)

Contrary to Mooney's speculation, most national academics are highly unlikely to argue before the Tenth Circuit, whose jurisdiction covers the Rocky Mountain states. (Mooney notes that some scholars do argue before "the high court" without seeming to notice that McConnell has not been nominated to the High Court.)

Moreover, if academics are so self-ingratiating, why did they not rally behind Bork, or indeed, virtually any other law professor nominee, with the same overwhelming support they have given McConnell?

Isn't the more plausible explanation that legal academics know what McConnell has written and find it wholly consistent with predicted judicial excellence? And to the extent that some of the support for McConnell does derive from fellow academics' appreciation of McConnell's collegiality and lack of arrogance, these are (as we have explained before) legitimate factors that bode well for likely judicial performance on an appellate, multi-member court.

McConnell and the Academy

Byron York speaks darkly of "the powerful legal academic establishment." But unlike corporations, or unions, or the AMA or the NRA, academics have no money to offer politicians. We have no armies of workers to furnish, no precious mailing lists to share, no volunteers to distribute leaflets or get out the vote on election day.

The 300 signatories are not part of any permanent organization. We teach at very different schools. We have acted, one by one, to sign our names on an open letter-a petition. Some of us are liberals, others conservatives, others none of the above. Most of us would find it hard to agree on many other things.

There are indeed academics who likely disagree with us about McConnell, though they would appear to be a distinct minority among those with academic expertise in McConnell's fields.

In short, the "power" that academics have tends to be the "power" of their ideas and expertise. Many of us have read McConnell's work on many topics over a long period of time, and have formed a basic judgment about the man and his mind.

But this would come as quite a shock to both McConnell and Scalia, given that one of McConnell's most important set of articles constitutes a direct attack on Justice Scalia's vision of the free exercise clause.

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. (For what it's worth, we side with McConnell on this issue.)

McConnell and Roe

Many critics and skeptics have been taken aback by McConnell's sharp criticism of Roe v. Wade in academic articles. News flash: Roe is not a particularly well written and well defended opinion. McConnell is brave, and correct, to say so.

A professor's job is to tell the truth and teach students the difference between weak and strong legal arguments. Whatever one thinks of the ultimate result in Roe, the particular legal arguments advanced in the case are widely seen in today's legal academy as shaky.

Indeed, one of us (Vik) clerked for Roe's author, Justice Harry Blackmun , and considers him a personal hero. When Justice Blackmun retired, we combined to write a newspaper tribute to him. But in our law school classrooms, we both point out Roe's analytic weaknesses.

This does not necessarily mean, of course, that Roe's result was wrong-perhaps there were better arguments that should have been made (as many scholars have suggested). Nor does it necessarily mean that the case should be overruled-that question depends on one's view of the precise weight precedent should be given alongside other constitutional arguments.

In criticizing Roe as an academic, McConnell is in fine academic company. Before she became a Justice, Ruth Bader Ginsburg-a strong champion of women's rights-criticized Roe in an academic article. So did Professor John Hart Ely-a leading liberal and abortion-rights supporter who later became Dean of the Stanford Law School. So have a great many other impressive scholars from all points of the political and jurisprudential spectrum.

Of course, if McConnell critiqued only liberal icons, this might raise questions about his sense of fairness, balance, and judgment. But McConnell is willing to criticize conservative icons, too-like the opinions of Justice Scalia for example.

Mooney labels McConnell's critique "quirky." For us, other words come to mind-words like "honest," "independent," and "courageous"-when it is remembered that McConnell was willing to offer such criticism at a time when these remarks could have hardly endeared him to the incoming Bush Administration.

McConnell and Precedent

In early October, the Los Angeles Times raised two concerns about McConnell: "McConnell has repeatedly asserted that Supreme Court precedents should not bind the current Court. He has argued before the Supreme Court that religious schools should receive certain types of government aid on the same basis as public schools."

These are odd criticisms. As to the first, we know of virtually no one who thinks the Supreme Court should never overrule a wrongly decided precedent. Was Brown v. Board of Education wrong to move away from Plessy v. Ferguson? Was Gideon v. Wainwright wrong to overrule earlier case law that refused to provide indigent defendants with lawyers?

Of course, thoughtful lawyers and academics disagree about exactly when and how the Supreme Court should overrule prior decisions now seen as wrongly decided. But McConnell's views on this topic are wholly conventional and well-reasoned.

In any event, the issue is, once again, utterly irrelevant to a nomination to the Tenth Circuit. Lower courts are required to follow Supreme Court precedent, as McConnell has himself emphasized. The issue of when the Supreme Court should overrule itself is an issue that would be relevant to a Supreme Court vacancy, but not for a lower court position.

On the religious schools question, the idea that religious schools should in many situations be given treatment "on the same basis" as public schools is hardly outlandish; the basic ideas here are called "equality" and "free exercise" and "free speech" and these concepts are indeed in our Constitution.

For example, a GI is now, and should remain, free to use his government loan "on the same basis" at a state school such as the University of California, at a private nonreligious school, or at a religious school like Notre Dame or Yeshiva.

Finally, what the L A Times leaves out is that when McConnell argued these positions before the Supreme Court, the Justices largely agreed with him. And rightly so, we believe.


Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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