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Michael McConnell:

Just thought I'd echo Orin's words about Michael McConnell; as I've said before, McConnell is a brilliant and tremendously respected scholar and, for the last few years, Tenth Circuit judge.

Goober (mail):
McConnell is indeed a conservative that I---and, I think, most liberals who are honest about the Court---couldn't in good conscience oppose.

Brilliant, well-qualified, respected by legal elites---he doesn't stand a chance of getting the nod.
10.27.2005 1:10pm
magoo (mail):
Having both McConnell and Roberts on the court would be a thing a beauty, a wonder to behold.
10.27.2005 1:25pm
Challenge:
I am suprised so many think he is confirmable with his opposition to Roe so evident.
10.27.2005 1:27pm
anonymous coward:
I think people are forgetting that Roberts was a breeze partially because he could remain vague on Roe (and much else). As for McConnell, confirmation would NOT be easy because of statements like these. The question is whether enough Democrats would decline to fillibuster; I don't know the answer. Read those linked quotes carefully and think about the press writing many, many articles about them.

Unfair, for a nice guy with his qualifications? Sure, but that's the way it is.
10.27.2005 1:34pm
AS:
Plus, didn't McConnell go on record in opposition to Bush v. Gore? In Bush's fevered little mind, that will translate into disloyalty. I'd put more money on Olson.
10.27.2005 1:38pm
Nunzio (mail):
Doubt he'd be nominated. After all, he's a white guy, and Roberts got the white-guy spot.

McConnell's certainly a very sharp guy, but his well-known opposition to Roe would make him tough to confirm. Politically, Bush would probably nominate Gonzales.
10.27.2005 1:39pm
A.S.:
Can someone tell me what's NOT to like about McConnell, from a conservative perspective? I vaguely recall that he has spoken out against at least SOME conservative principles, but I don't recall which. Some help?
10.27.2005 1:42pm
DNL (mail):
Eugene:

If you had your choice of 9 people to sit on the bench, and you could not pick yourself or other VCers, who would you choose?
10.27.2005 1:44pm
magoo (mail):
McConnell's criticisms of Roe are not fatal. Many pro-choice libs, including Ely and Justice Ginsburg, recognize that the opinion is an intellectual travesty. As long as he can credibly say that he views Roe as a precedent deserving of proper respect, and that he maintains an open mind on the issue of whether it should be overturned, he would be confirmed. I see nothing in his writings that prevent him from saying that.
10.27.2005 1:48pm
Nobody Special:
"Politically, Bush would probably nominate Gonzales."

Do you really think he wants Miers Part Two? He's pretty much politically foreclosed from nominating Gonzo at this point.
10.27.2005 1:53pm
AnandaG:
AS hits the nail on the head -- McConnell's criticisms of the Bush v. Gore decision disqualify him from being nominated by this president.
10.27.2005 1:54pm
gully:
McConnell gets good press from Jeffrey Rosen at The New Republic (moderate liberals) along with Luttig and Roberts, here:

http://www.tnr.com/doc.mhtml?i=20041129&s=rosen112904
10.27.2005 1:56pm
Nunzio (mail):
magoo, everyone knows McConnell is not a "pro-choice" lib, so his opposition to Roe hurts him, unlike Ginsburg. This issue would dominate the hearings. Since enough Americans support Roe, McConnell opponents would make this a one-issue hearing and garner as much public opposition as possible.

No one cares what McConnell's deeply-developed views on the Free Exercise Clause are.
10.27.2005 1:57pm
Bob Flynn (mail):
McConnell would be great. No doubt about that.

But, I'm still holding out for Kozinski from the 9th Circuit, and then elevating Volokh to the bench to replace Kozinski.

Who's with me?:)
10.27.2005 1:58pm
gully:
Here is a quote from the above article:


Michael McConnell, 49. U.S. Court of Appeals for the Tenth Circuit. McConnell is the most respected conservative legal scholar of his generation, and liberals and moderates throughout the legal academy would enthusiastically support his nomination. Liberal interest groups, unfortunately, would aggressively oppose it because he is personally pro-life and is also a vocal and effective critic of Roe. As usual, though, a single-minded focus on Roe would be misguided: McConnell has a deep respect for precedent. More than anyone else in the country, McConnell is responsible for persuading the Supreme Court to abandon the rigid church-state separationism that prevailed during the 1970s, arguing instead that the state should be neutral toward religion. As a result, he supports school vouchers, but, unlike Justices Scalia, Thomas, and Rehnquist, he argued that graduation prayers in public schools were unconstitutional even before the Court struck them down in 1992. On federalism, McConnell's record is especially encouraging. More than the other candidates on Bush's short list, McConnell believes that judges should defer to Congress's power to define illegal discrimination. His definitive studies of the original understanding of the Fourteenth Amendment have convinced him that its framers intended Congress, not the Court, to define and enforce protection of civil rights. As a result, McConnell has criticized conservative justices for holding that Congress may not define discrimination more expansively than the Court. In questions of economic rights, McConnell seems similarly concerned about judicial restraint: In a 1987 article titled "federalism: evaluating the founders design," he strongly criticized a leader of the Constitution in Exile movement, arguing that, whatever the initial intention of the interstate commerce clause, the dream of resurrecting long-forgotten limits on federal power is unrealistic: The "vision that the Supreme Court, having been informed of the founders' intentions now has in its power to restore the original constitutional scheme, is fanciful, and would not necessarily be desirable even if it were less so." For those who care about deference to Congress, McConnell's nomination would be especially welcome.
10.27.2005 1:59pm
Clayton E. Cramer (mail) (www):
I think that McConnell's scholarship on the free exercise clause and the establishment clause would get him vetoed by the ACLU; therefore, the Senate is not allowed to confirm him.
10.27.2005 2:00pm
Nunzio (mail):
Nobody Special,

Gonzales went to Harvard, was on the Texas Supreme Court, and is Attorney General. It doesn't matter if, intellectually, he's Miers Part Two. He's probably confirmable, unlike Luttig and McConnell. The Democrats couldn't really expect a better nominee for them, and there would be enough Republicans to support him. The nationally-unelectable Republicans (Brownback, Coburn, et al.) might oppose Gonzales, but at this point, there's not going to be a nominee to satisfy left-wing or right-wing nuts. Besides, it wouldn't hurt to have a Hispanic on the Supreme Court, politically.
10.27.2005 2:02pm
Simon (391563) (mail) (www):
Clayton-

What scholarship, specifically, are you referring to? I would imagine that there are pieces that they agree with (see, e.g., school prayer) and pieces they don't, but on the whole his work (from the ACLU's perspective) should be no worse than any other GOP nominee, and in some (many) ways much better.
10.27.2005 2:05pm
cathyf:
I'm a mathematician, not a lawyer, so I tend to express things in algebra:

Byron White + Sandra O'Connor = Ruth Ginsberg + X

Solving for X in this equation is amusing... Mostly as a result of imagining Ted Kennedy's head exploding!

cathy :-)
10.27.2005 2:07pm
Thorley Winston (mail) (www):
Has McConnell written anything on what the limitations of the Commerce Clause are or should be?
10.27.2005 2:31pm
Steve:
McConnell would be confirmed pretty easily. And conservatives who believe Roe was wrongfully decided should welcome the chance to hear a brilliant mind explain why that is so, as an intellectual matter. It offers a chance for the originalists to make the case that their position is principled and that the liberals are all about results - a case that was weakened by some of the opposition to Miers, and by the ham-handed attempts to use her religion to signal how she would handle the abortion issue.

Gonzales is obviously not going to be the nominee, because he would have the exact same "document issue" that Miers had. While we all know the document issue was a pretext, they never would have used that pretext if they intended to come right back with Gonzales. What happens in the scenario where Gonzales is nominated, Senators ask for the same White House Counsel documents that they requested on Miers, and it is pointed out that Miers was withdrawn for this exact reason?
10.27.2005 2:32pm
Rob Johnson (mail):
Cathyf,


Byron White + Sandra O'Connor = Ruth Ginsberg + X


Brilliant!
10.27.2005 2:35pm
Taimyoboi:
Ramesh Ponuru for SCOTUS.
10.27.2005 2:43pm
Taimyoboi:
Ramesh Ponnuru for SCOTUS.
10.27.2005 2:44pm
Aaron:
CathyF

X= Willis Van Devanter

(and I refuse to show my work)
10.27.2005 3:02pm
Public_Defender:
Most commentators are focused on Roe, but to people in my line of work, the key cases are Blakely and Booker. Both Rehnquist and O'Connor were in the 5-4 majority that "fixed" the Federal Guidelines by making them advisory. The other four justices (led by Scalia) wanted to throw out the guidelines entirely.

The implications of "Bookerizing" (or "un-Bookerizing")the federal and state court systems is enourmous. It will immediately affect thousands (tens of thousands?) sentences. By some arguments, applying Blakley without the Booker fix would mandate minimum, concurrent sentences in some states, and possibly in the federal system.

The replacement of Rehnquist and the pending replacement of O'Connor already put Booker into doubt. But if McConnell (or whoever Bush picks) is a Scalia-type conservative, the criminal justice system in this country is in for a bumpy ride.
10.27.2005 3:02pm
JA:
What about Solicitor General Paul D. Clement? He has the Roberts pedigree (Magna - HLS) and conservative credentials (clerked for Scalia). He has obviously argued before the USSC several times. Perhaps his age is the drawback. I did not see his DOB on his official bio.

What about Clement? He is another Roberts, no?
10.27.2005 3:05pm
Michael B (mail):
Roberts was a brilliant pick; Miers a misstep which can be readily forgiven. The Schumers of the world can pontificate and arrogate and otherwise lie about putative extremists, but no apologies are needed. Focus.

McConnell would be equally brilliant, perhaps more brilliant still. It would bring important issues to the fore and force the Bidens and Schumers of the world, along with Interest groups and others, into the light of day. At least potentially, it would be a great forum for a transparent vetting of some wastreling ideological detritus and some critical federalist, legislative and judicial issues.

Other picks would have similar effects and would be perfectly agreeable, but McConnell is so brilliant and articulate in addition to possessing some uncommon common sense and a thoughtful and compassionate measure of humanity to boot. All that doesn't even get into the specifics of his substantial bona fides and the fact he's already been confirmed by the Senate in his present position with the 10th Circuit Court of Appeals. The gold standard - and confirmable after a fight which would very much be a worthwhile fight and transparent vetting before the American public.

Also, this piece on Bush v. Gore, by McConnell, reflects his appreciable approach on that controversy. It begins with the following excerpt:

"By scheduling a statewide recount at the very last minute, without fair and uniform standards, the Florida Supreme Court put the U.S. Supreme Court in a very difficult position, without time to craft a remedy that commanded widespread acceptance"
10.27.2005 3:14pm
Shelby (mail):
Bob Flynn:

From your lips...
10.27.2005 3:17pm
Josh Chandler:
Two quick points--

1)I am not convinced McConnell is as confirmable as people think, to echo what has been said. His hatred of Roe is too obvious, and he was only confirmed because he said that it was settled and that as an appellate judge he hould abide by it. I don't know how well that would play in SC hearings. Badly, I'm afraid.

2) What about a choice more along the lines of Roberts-- a private practitioner? I'm thinking of a woman, clerked for the late Chief, hmm . . . Maureen Mahoney. Do you think the right would revolt because she argued (and won) the U of M lawschool case? She is no more of a known quantity than Roberts, and is just as accomplished. There is no way she would fail to be confirmed-- unless there was a revolt from the right ala Miers, which I doubt would happen.
10.27.2005 3:18pm
Bob Flynn (mail):
Chandler,

It doesn't matter if McConnell is "confirmable." That's for the Dems to decide. The first question is whether McConnell would make a "good" choice. The answer is Yes.

If the Dems want to further alienate sensible people by Borking a stupendous candidate, so be it. Let's get it on.
10.27.2005 3:27pm
Legal Thoughts (mail):
JA - Clement is way too young (I'm guessing). If I recall, he's in his late 30's, and is the youngest SG since Taft way back when people weren't living quite as long. He does have the perfect conservative resume (clerkships for Silberman and Scalia, counsel to Ashcroft on the Judiciary Committee, and principal deputy SG in charge of terrorism appeals, now SG), but that resume would be exactly the type to provoke strident opposition from the left.

And like with Miers and Gonzales and Estrada before that, senators would likely seek internal documents from the SG's office, something this Administration is obviously not prepared to turn over.
10.27.2005 3:31pm
lyle (mail):
Dems might fuss re: McConnell, but he is not blockable. They can scream Roe all they want, but the RINO GOP senators are not going to block a McConnell. Let's depart from political reality fights:

Who are _the_ most qualified candidates? I submit that it's McConnell, and on that basis alone, he should get the nod.
10.27.2005 3:39pm
Hoosier:
Yes. But Mahoney went to IU. And you all know that Hoosiers are dumb.

I'm with Bob Flynn: "If the Dems want to further alienate sensible people by Borking a stupendous candidate, so be it. Let's get it on."
10.27.2005 3:40pm
Cold Warrior:
Am I the only one out there who thinks McConnell is something less than the second coming?

I find him far too deferential to so-called religion and religious practices. Ask yourself this question: if the issue were to come before the Court, would McConnell question whether Scientology is a "church" simply because it chose to call itself one? Original intent/meaning theorists out there: when the free exercise clause was drafted and ratified by the states as part of the Bill of Rights, did anyone contemplate the rise of such "churches?" The idiocy that we now see in prisoner free exercise litigation (the Church of Ganja type silliness)? Isn't there some point at which we can just say, "you can believe what you want to believe, but you're not free to undertake whatever ridiculous behavior you can contemplate as long as you can keep a straight face when you call it a religion?"

Look, the Constitution is a product of the Enlightenment. Brave thinkers two centuries ago had had quite enough of superstition and the supernatural. They would have been horrified to think that they were protecting some right to ritualistically slaughter chickens in your Miami apartment building or to import some weird root poison from Brazil, choke it down, vomit it up, and have a poison-induced vision in the process.
10.27.2005 3:40pm
JA:
Legal Thoughts:

I also have Clement in his late 30's/early 40s. However, I don't see that being his drawback. He is old enough to be President of the United States. He holds a top government position. I'm not sure what 10 more years as a SCOTUS advocate (public or private) will do to his "world experience" and "maturity."

I imagine the left will make similar arguments about papers. But, we all know that is not the real reason that Miers bailed. That was taken straight from The Post editorial page. Weren't there similar document fights with Roberts? He was in the SG office, WH, etc. The WH got through that fairly easily.

Clement's resume is impeccable. And, if Bush truly wants someone outside the "judicial monastery," why not? Clement could be on the court for 50 years.

Anyway, I was just struck by Clement's resume (similarity to Roberts) and his conservative credentials. Perhaps down the road for Mr. Clement.
10.27.2005 3:41pm
Cold Warrior:
Oh, and I forgot: that goofy haircut is a disqualifier, too.
10.27.2005 3:42pm
anonymous coward:
"Dems might fuss re: McConnell, but he is not blockable. They can scream Roe all they want, but the RINO GOP senators are not going to block a McConnell."

No, they're not, but that's quite irrelevant. Are the RINOs willing to go nuclear over McConnell and override a fillibuster? Are the DINO Dem senators willing to stick to a fillibuster or would they back down under pressure (if any can be applied, by no means certain at this point)?
10.27.2005 3:49pm
Cold Warrior:
Oh, and again: here's a description of the poison the New Mexico snake oil salesman/nouveau hippie/Seagram's heir absolutely needs to import, at least until someone drinks it a his urging and drops dead after gut-wrenching convulsions:


Reportedly the liquid is bitter and not easily consumed. Richard Glen Boire, co-director of the Center for Cognitive Liberty and Ethics, a libertarian-leaning advocacy group, told The New Yorker that the tea "tastes horrendous. Almost everyone who drinks it throws up. Ninety percent of the people who try it will have the most horrendous physical experience that they have ever had in their lives. It's terrifying, but kind of profound, too."

McConnell saw no "compelling governmental interest" in preventing the importation of this poison.

And as a libertarian, I'd say: go ahead, legalize it, don't try to stop people from being idiots.

But as a lawyer I say: is this what the 1st Amendment is about??
10.27.2005 3:51pm
Dilan Esper (mail) (www):
McConnell is confirmable and would be, from the President's perspective, an excellent choice-- he's a very smart and collegial conservative who might be able to persuade some of his colleagues on the Court. (One reason I think the conservative lionization of Scalia is so wrongheaded is because Scalia, rather than persuading others and building consensus, seems to think he's the smartest guy in the world and basically insults anyone who doesn't agree with him.)

A couple of points:

1. Don't discount the issue of Bush's ego in the new choice. Bush may want it to stick it to the people who he blames for his friend Miers being rejected. This could play out in a couple of different directions, depending on who he blames.

2. Luttig, who one commenter mentioned, would be filibustered. Basically, liberals believe that Luttig is an extremist and that the "mainstream" conservative on the Fourth Circuit is Wilkinson. Conservatives like Luttig because he is more conservative and younger. If Bush picks Luttig, he'll get a huge confirmation fight. (Of course, he may want one.)
10.27.2005 3:54pm
Designbot:
Look, the Constitution is a product of the Enlightenment. Brave thinkers two centuries ago had had quite enough of superstition and the supernatural. They would have been horrified to think that they were protecting some right to ritualistically slaughter chickens in your Miami apartment building or to import some weird root poison from Brazil, choke it down, vomit it up, and have a poison-induced vision in the process.

I don't see why anybody would be particularly horrified about a chicken being slaughtered or someone ingesting a root.
10.27.2005 3:55pm
Riskable (mail) (www):
Roe V. Wade, sigh. Is that all everyone ever thinks about when it comes to SCOTUS? I wish Congress would just pass a constitutional amendment declaring the point at which a cluster of cells becomes a person. Then we can get all down to the real nitty gritty that is involved in SC decisions.

Personally, I am more inclined to like/dislike a judge based on their views in relation to emerging technologies, freedom of speech, privacy, the right for citizens to protect their information (which isn't necessarily "privacy"), and especially separation of church and state.

McConnell is obviously a very religious person and his record clearly shows this. From what I've read, he is opposed to Roe V. Wade because to him, a fetus is a person and the privacy argument is the equivalent to murder behind closed doors.

He also seems to be a proponent of government-funded organizations being able to discriminate based on sex and religion (faith-based whatever), and race. For example, he was opposed to the SCOTUS ruling that revoked Bob Jones University's tax-exempt status because they banned inter-racial dating.

He also doesn't believe in separation of church and state (at all?).

To me, this does *NOT* seem like a confirmable person. The democrats would have a field day on his Bob Jones University ruling and it would probably draw minorities even further away from the Republican party.

-Riskable
http://www.riskable.com
"I have a license to kill -9"
10.27.2005 3:56pm
Perseus:
Speaking in the spirit of favoritism, McConnell gets my vote because one of his daughters is attending my alma mater (not to mention that it would be seen in certain quarters as one more indirect link in the great Neo-Con/Straussian conspiracy).
10.27.2005 4:01pm
Cold Warrior:

I don't see why anybody would be particularly horrified about a chicken being slaughtered

May a group of Santeria practitioners descend upon your condominium.
10.27.2005 4:03pm
Simon (391563) (mail) (www):
Cold Warrior-

The comments thread of this blog is hardly the place to stage a full debate on the issue, but let me start it this way: do you (who claims to be a libertarian) really want a government actor deciding what religions are "true" religions and what religions aren't in the face of apparent good faith belief? (No pun intended, honest.)
10.27.2005 4:11pm
Dilan Esper (mail) (www):
Riskable:

You are way off on McConnell and separation of church and state. His views on separation of church and state are complicated, but can be summarized in the sobriquet that "government may only aid religion if it does so on a non-discriminatory basis both among religions and between religious and secular activities". This was presented as an alternative to both the strict separation of church and state urged by secular liberals and the complete dismantlement of the wall urged by religious conservatives. It has also been, to a great extent, adopted by the Supreme Court.

How does this play out? Basically, things like school vouchers, where religious institutions are funded on a non-discriminatory basis with secular institutions, are constitutional. But school prayer is unconstitutional, because it is pure government endorsement of religion.

He would be squarely in the middle of the Court on these issues.
10.27.2005 4:20pm
Cold Warrior:
Riskable: you make a good point.

I don't take their statements at face value, but I believe this People for the American Way summary of McConnell's take on the Bob Jones matter is pretty accurate (I deal with the 10th Circuit, and I looked at McConnell's writings when he was nominated to the Circuit):


Perhaps the most troubling example concerns Bob Jones University v. United States, 461 U.S. 574 (1983). In that case, the Supreme Court ruled that the IRS could properly revoke the charitable tax exemption of a private university that was committing racial discrimination by banning interracial dating among its students. The Bob Jones case became especially notorious as a result of the attempt by the Reagan Administration to revoke the relevant IRS rule. That rule, which was "[b]ased on the 'national policy to discourage racial discrimination in education,'" provided that "'a [private] school not having a racially nondiscriminatory policy as to students is not 'charitable' within the common laws concepts'" reflected in the pertinent provisions of the Internal Revenue Code. 461 U.S. at 579 (emphasis added) (quoting IRS Revenue Ruling 71-447). All nine Justices (including then-Justice Rehnquist who dissented on other grounds) specifically rejected Bob Jones' claim that its religious beliefs could justify its blatant race discrimination while it retained tax exempt status, and the Court explained that the government had a compelling interest in combating such discrimination.3

More than a decade after the widely accepted ruling in Bob Jones, however, McConnell criticized it for failing to allow the university's religious claims to trump civil rights protections. In a 1997 article, McConnell specifically included the Court's decision to allow the government to "revoke tax-exempt status for fundamentalist schools that forbid interracial dating" as one of several "egregious examples" of the Court's failure to "intervene to protect religious freedom from the heavy hand of government." "The Supreme Court 1997: A Symposium," 76 First Things at 32 (Oct. 1997). Several years earlier, McConnell had similarly written that the "racial doctrines of a Bob Jones University" should have been "tolerated," even though he admitted they were "abhorrent," because they were "church teachings."4 McConnell's description of the landmark Bob Jones ruling as "egregious" and his apparent condoning of blatant race discrimination by a group receiving a government tax exemption are extremely disturbing.5


Again, my objection is not that the knuckle draggers who run Bob Jones should be forced to change their policy. It is that McConnell would force the Government to provide a de facto subsidy to such a bogus institution of higher education (try to use that in the same sentence as "Bob Jones" without laughing out loud).

PFAW's criticism is fair.

Those who think McConnell could sail through confirmation are kidding themselves. He really is a free exercise extremist. I am tired of the praise being heaped on those who are "religious," as if that is a qualification or proof of character.

Belief in a higher power may cause one to lead a better life. But it is not a sign of character. Sometimes, in fact, it is a sign of a flawed intellect.
10.27.2005 4:28pm
Rhadamanthus (mail):

1. Don't discount the issue of Bush's ego in the new choice. Bush may want it to stick it to the people who he blames for his friend Miers being rejected. This could play out in a couple of different directions, depending on who he blames.


In that case I'd say there's every chance of the next Supreme Court Justice coming from outside the US- at the moment I doubt anyone in the US is avoiding the blame. Except possibly Miers.

On that note, is she going back to her old job? In hich case I assume she will once again get input into the nomination. I think we should look closely to see if the nomination is in any way related to the Executive- how about Jeb Bush? He meets the qualifications of being

1/ Related
2/ conservative
3/ No judicial experience
4/ Lots ofpolitical background

In POTUS' warped mind he may actually appeal!

Seriously my choice would be Posner or Kosynski. Both would add great judicial weight to the bench
10.27.2005 4:28pm
Public_Defender:
If the description of McConnell's views on Bob Jones is correct, then his nomination could be opposed, possibly without penalty.

"McConnell Supports Tax Subsidies for Racists." It would be a powerful attack. It would also be true. (Again, this all assumes the comment citing First Things is correct.)
10.27.2005 4:39pm
Cold Warrior:
Simon sez:

do you (who claims to be a libertarian) really want a government actor deciding what religions are "true" religions and what religions aren't in the face of apparent good faith belief?

No, what I really want is for governments to get out of the business of granting special favors for religion. Make churches equivalent to other nonprofit (actually, "for profit" is often more correct) organizations and the problem of deciding goes away.

Since we haven't made (and aren't going to make) such a policy decision anytime soon, the courts are forced to grapple with the issue. That's the danger of granting special status to a "church" as opposed to some other kind of nonprofit. But why say that we should simply defer to the organization's own characterization of its nature (e.g., Scientology is a church)? Congress created this mess, and the courts have no choice but to deal with it.
10.27.2005 4:43pm
Veggie_Burger (mail):
McConnell thinks a fetus is a person. Good for him. Has he taken any out to lunch lately? Does he go hunting, fishing, and golfing with his fetus buddies? His thinking is so retrograde as to be laughable. He scares me as do most rigid conservatives. Not another Scalia or Thomas, please! Where was the outrage when Thomas was the unqualified nominee? Even the fact that he was a sexual harasser made no difference. Talk about an unprincipled, pig-headed bunch!
10.27.2005 4:45pm
Daniel Chapman (mail):
I picture a southern slaveowner circa 1850 saying "He thinks a slave is a person. Good for him. Has he taken any out to lunch lately? Does he go hunting, fishing, and golfing with his slave buddies?"

Not that I would welcome a SCOTUS decision declaring an unborn child a "person" in the legal sense either, but such thinking can hardly be called "retrograde," can it?
10.27.2005 4:51pm
Cold Warrior:
Public Defender says:


"McConnell Supports Tax Subsidies for Racists." It would be a powerful attack. It would also be true. (Again, this all assumes the comment citing First Things is correct.)

That is, indeed, the spin PFAW would put on it. It would be a mischaracterization of McConnell's position, but no more so than all the other news accounts of nuanced legal opinions. The truth is too complicated and boring:

-- Congress decided that colleges should have tax exempt status
-- it would be a violation of the free exercise clause to grant that exemption to secular instititions but deny it to religious institutions
-- The IRS wanted to deny tax exempt status to institutions that discriminate on the basis of race
-- But if the discriminatory practice is part of a religious institution's belief system, it would violate the free exercise clause to deny tax exempt status on that basis.

McConnell's argument is logical and defensible.

But it is also "extreme," in that it is extremely deferential to the bizarre practices Mr. Bob Jones believes are somehow intrinsic to the practice of Christianity.

Again, Congress has forced the courts to analyze the legitimacy of various religious practices. And in every case, McConnell defers to the "Church's" own stated rationale, whether it is "ingestion of a Brazilian poison/drug is essential to our form of worship," or "a prohibition on interracial dating is essential to our practice of Christianity."
10.27.2005 4:53pm
Riskable (mail) (www):
Dilan Esper:

To me, your sobriquet does seem like the abolishment of separation of church and state. If we had an amendment on the books that stated:

"government may only aid religion if it does so on a non-discriminatory basis both among religions and between religious and secular activities"


How is it even possible for a government to be non-discriminatory when selecting which religious institutions get aid? Assuming a "religious aid" budget of a billion dollars, who gets a cut? Lets assume for a moment that 50% of the people in this country define themselves as Christian. Do we then hand out half a billion dollars to Christian organizations?

Not only that, but what about the non-religious? Who do we call to send $100 million to for those that are non-religious or atheists?

Then there's various forms of religion to worry about (not to mention subclasses!). If it were against my religion to aid infidels (e.g. Christians), how would it be fair to me that my taxes are going into a Christian organization? How would it make you feel if your tax dollars were going into a neo-Nazi religious group?

To me, the government aiding a religious institution is the equivalent to a state-sanctioned religion. Also, when the state starts handing out money to religious institutions, that can be considered a form of state control of religion. If your church discriminates against homosexuals, you can kiss your federal funding goodbye. To get needed money in a tough situation, a religious institution may relinquish their anti-gay stance in order to stay afloat. This can lead to all sorts of corruption (e.g. "convince your followers that my war is justified and I'll make sure you get your $200 million").

"Political freedom cannot exist in any land where religion controls the state, and religious freedom cannot exist in any land where the state controls religion." -Samuel James Ervin Jr., lawyer, judge, and senator
(1896-1985)

-Riskable
"I have a license to kill -9"
10.27.2005 4:55pm
Adam (mail) (www):
Who are _the_ most qualified candidates? I submit that it's McConnell, and on that basis alone, he should get the nod.

McConnell is not the most qualified U Chicago Law professor out there, even. Posner and Easterbrook are more qualified. They're just not as "reliably" conservative as McConnell might be, though, given the Miers choice, their age might not be as much a fact for the President.

Kozinski, too, is more qualified.
10.27.2005 4:56pm
Michael B (mail):
I am tired of the praise being heaped on those who are "religious," as if that is a qualification or proof of character. Cold Warrior

Belief in a higher power may cause one to lead a better life. But it is not a sign of character. Sometimes, in fact, it is a sign of a flawed intellect. Cold Warrior

Not only fair, it's more than fair, it's also true. (Though it's opposite is also true. It's far more common in our era for someone to forward their agnosticism or atheism or anti-theism as a proof of their intelligence.)

More pointedly, cites offered to substantiate that specific charge vis-a-vis McConnell as a potential SCOTUS appointee however would be welcome. Unless I missed it in this thread, or elsewhere, I have not seen it substantiated.
10.27.2005 5:00pm
Nunzio (mail):
I wasn't aware of McConnell's views on the Bob Jones case. That would pretty well sink his nomination, unless he could sincerely disavow it.

I guess someone could argue that by revoking BJ's tax exempt status they were disfavoring BJ's religion, thereby discriminating against some religions vs. others. I don't think that would get him far in a confirmation hearing.
10.27.2005 5:04pm
Cold Warrior:
Nunzio said:

I guess someone could argue that by revoking BJ's tax exempt status they were disfavoring BJ's religion, thereby discriminating against some religions vs. others.

That's exactly the argument McConnell made. And as I said, I think that argument is perfectly defensible.

But no, it wouldn't impress the Judiciary Committee or the public.

[And in case you haven't noticed, I think the argument is perfectly defensible but also wrong.]
10.27.2005 5:09pm
Simon (391563) (mail) (www):
Look, idiots, there are a lot of criticisms one can make about McConnell's views in Bob Jones (I happen to disagree with him, I think, on the underlying principle he articulates) but the notion that holding that view -- which is not at all out of the mainstream for First Amendment doctrine (fair statement, Eugene?) -- somehow makes him a racist or disqualifies him is crazy.

And, Cold Warrior, your position that government actors ought to be judging what brand of Christianity is "true Christianity" and what isn't is more extreme than the view you attribute to McConnell, and absurd besides.
10.27.2005 5:14pm
Dilan Esper (mail) (www):
Riskable:

Making religious groups eligible for governmental aid on the same basis as non-religious groups does not destroy the separation of church and state.

In fact, if one takes your post to its logical conclusion, the federal subsidized student loan and Pell Grant programs are unconstitutional, because they aid BYU and Notre Dame on an equal basis as UCLA and Stanford.

Similarly, it would mean that an Adopt a Highway program that allows a Church to adopt a highway (and receive an advertisement on government property) on the same terms as others may adopt one would be unconstitutional. Even affording police and fire protection to churches would be unconstitutional.

Under McConnell's theories, there is still a strong separation of church and state. The aid has to be neutral. If the government is favoring faith-based organizations over secular or atheistic ones, or granting aid to Christian groups but not to Muslim groups, it's unconstitutional. School prayer is a no-no; so is creating a special school district exclusively for Hasidic Jews.

There would still be plenty of separation between church and state.
10.27.2005 5:16pm
Dilan Esper (mail) (www):
Simon:

I generally think McConnell would be a good nominee, but I think McConnell's off his rocker on Bob Jones. That case was decided 8-1 by the Supreme Court; even Burger voted against the school. So his defense of the school is pretty extreme.

And I think the result of the case is perfectly consistent with McConnell's own theories, in that the race discrimination prohibition was applied consistently to all schools, whether religious or secular. According to most of his writing, government aid that is afforded on the same terms to all institutions is constitutional.
10.27.2005 5:19pm
Alaska Jack (mail):
As a writer and editor, it interested me to see PFAW's characterization of MM:

Several years earlier, McConnell had similarly written that the "racial doctrines of a Bob Jones University" should have been "tolerated," even though he admitted they were "abhorrent."

I love their use of the word "admitted." Another way of saying the same thing:

McConnell harbored strong personal objections to BJU's policies; indeed, he considered them "abhorrent." However, he understood that the legal issue needed to be decided, not in accordance with his personal feelings, but by the impartial application of Constitutional principles.

- AJ
10.27.2005 5:22pm
Cold Warrior:
Let me explain again: Bob Jones says its prohibition on interracial dating -- or let's put it bluntly, its prohibition on interracial sex -- is based on the Institution's reading of scripture and is essential to its mission as a Christian university.

McConnell says: that's the end of the story. We can't go probing into whether this statement -- that a prohibiton on interracial sex is essential to Bob's University's Christian educational mission -- is an honest characterization, or an accepted (even by a very small minority) interpretation of scripture, or anything. We just take their word for it and grant tax exempt status. Same thing with the New Mexico Brazilian potion drinkers. Same thing, presumably, under the RFRA for federal prisoners who claim their religion requires them to smoke massive quantities of pot or engage in sex orgies. We simply aren't allowed to undertake such inquiries.

McConnell, in his zeal to ensure that the Government remains content neutral with respect to religious practices and in no way favors/disfavors religion, misses a larger point: isn't "religion" favored when people are allowed to undertake illegal acts as long as those acts are characterized as religious practice? What if I want to drink some hideous psychoactive potion for the purpose of my own private, nonreligious enlightenment? Why do I have to join some hippie church to do so?
10.27.2005 5:25pm
Adam (mail) (www):
If it's McConnell, be prepared to see this sentence a lot, or something like it: "As an academic, I had an obligation to be provocative and to attempt to see how far a theory could be extended."
10.27.2005 5:26pm
Simon (391563) (mail) (www):
Dilan-

I'm not sure citing Burger's endorsement of a particular position is all that persuasive, at least to me.

You're right, of course, that there is some tension, at least on the surface, between McConnell's views on, e.g., Bob Jones and Zelman. But I'm not convinced that they are irreconcilable, and criticisms of the decision are hardly unusual. See, for example, the 1200 or so law review articles that come up when you keycite the case. (It is vulnerable to attack from both the free exercise claims and other parts of the First Amendment.) To be clear, I'm not necessarily persuaded by critics of the decision. But to suggest that they are loons is unwarranted.
10.27.2005 5:31pm
Cold Warrior:
Per Simon:

And, Cold Warrior, your position that government actors ought to be judging what brand of Christianity is "true Christianity" and what isn't is more extreme than the view you attribute to McConnell, and absurd besides.


I knew a bunch of guys in college who had self-described religious experiences induced by psychoactive drugs. Let's say they banded together and formed the Lysergic Church.

Simon, how dare you laugh at them or question the sincerity of their belief system ...

Let's say Bob Jones Jr. is convicted of tax fraud and sent to prison. Let's say he refuses to be housed with black prisoners since separation of the races is mandated by his brand of Christianity.

Simon, where would you place him?
10.27.2005 5:32pm
Elvis:
Frankly, I am baffled at how many people think that Bush is going to meekly accept this defeat (and it is a serious defeat), forget all the nasty things that have been said about one of his closest friends, and give his base exactly what they want.

This president has always put personal relationships over politics. Harriet Miers is an old and loyal friend of a man who takes friendship and loyalty very seriously. He's supposed to, now, accept the borking of this friend and reward the disloyal?

Me, I suspect there will be a reckoning here, and it won't be pretty.
10.27.2005 5:43pm
Rhadamanthus (mail):

Where was the outrage when Thomas was the unqualified nominee? Even the fact that he was a sexual harasser made no difference. Talk about an unprincipled, pig-headed bunch!



Is it me or did 48 Senators vote against him? That seems like a strong stand!
10.27.2005 6:23pm
Nunzio (mail):
Elvis,

I think you're right. Which is why Bush will nominate Gonzales.
10.27.2005 6:24pm
Bob Flynn (mail):
Nunzio,

There is no chance on earth that Bush will nominate Gonzalez. I'll bet you $100, loser makes the donation to this site.
10.27.2005 6:46pm
DC Lawyer (mail):
Bush needs a first -- something historic to take the country's mind of the Miers loss. A Hispanic like Consuelo Callahan, Sonia Sotomayor, Emilio Garza, and maybe Gonzales, although I think Gonzales would cause the Dems fits in a way that the others wouldn't.
10.27.2005 6:55pm
Simon (391563) (mail) (www):
Cold Warrior:

This isn't that hard if you stop confusing two separate (albeit related) issues. Try to follow along.

First there is the question of whether the government actors should determine whether somebody or someone is properly considered, e.g., Christian.

Courts have some institutional competence in determining whether someone is lying to them. For example, a court (whether judge or jury) could determine that your friend were telling the truth -- or lying -- about their religious belief in the Lysergic Church.

Courts have no institutional competence -- none at all -- in deciding questions of theology. Judges and juries aren't theologians, and believe me, whether somebody or something is sufficiently or appropriately Christian is most definitely a theological matter. It's why courts run far, far, far away from disputes that force the court to determine whether, for example, one part or another of a broken congregation is the "true" congregation allowed access to the church.

A second question, separate but related, is whether the government should recognize exceptions to generally applicable laws on account of a person's religious belief. There are good arguments for such a rule and bad argument for such a rule. McConnell usually makes good arguments, although I'm not sure I agree with him.

But for me to conclude that the government should not allow religious exceptions to generally applicable laws does not lead me to conclude that the government has any business determining whether a particular religion is "true" or not, or a particular adherent is sufficiently devout.
10.27.2005 6:59pm
Elvis:
Garza is a possibility.

Hispanic + old friend of the Bush family + smart and experienced.

I don't see Gonzales because it would just mean another big fight over his replacement.
10.27.2005 7:13pm
Nunzio (mail):
Elvis,

You could be right about Garza. He's from Texas, supports Bush, etc.

I think given Bush's personality he'll nominate Gonzales b/c he's a better friend with Bush and is loyal. Also, Bush is probably pretty ticked about the treatment of Miers, which means he has taken it personally and will nominate who he wants.

No matter who it is, I wouldn't be surprised if he nominated a confirmable moderate who had more support among Democrats than Republicans. I think Bush felt that he appeased the far right by putting Ashcroft as AG, and they should stick to that. As for the conservative intelligentsia, I'm sure Bush could care less about them, other than to get even for their perceived disloyalty.
10.27.2005 7:51pm
JMRobinson (mail):
I haven't gone hunting, fishing, or golfing with anyone under the age of say 12. Let's try to stick to things that make any sense at all.
10.27.2005 8:15pm
Cold Warrior:
Simon says:


But for me to conclude that the government should not allow religious exceptions to generally applicable laws does not lead me to conclude that the government has any business determining whether a particular religion is "true" or not, or a particular adherent is sufficiently devout.


Then why don't you answer my Scientology question? Tom Cruise certainly seems to have an honest if foolish belief in the philosophy cum religion of that minor British sci-fi author. Does the strength of one's devotion to a pop philosopher transform his adherents into a "Church?" All you tell me is that courts are properly hesitant to get involved in such questions. But when the IRS has to determine if your organization is a "Church" or is merely devoted to a particular moral programme, not getting involved is simply not doing your job. What if the various Ayn Rand adherents out there wanted to classify their organization as a "Church?"

Look, others have argued that the Religious Freedom Restoration Act is unconstitutional in that it invites the courts to make the type of decisions that are committed by the Constitution to the legislative branch. McConnell certainly doesn't think so, and he seemed positively gleeful about accepting the RFRA's invitation to be an unelected legislator in the New Mexico hoasca (the psychedelic potion) case. In fact, he went on at great length about the lack of explicit Congressional findings about the dangers of hoasca — this in spite of the fact that the active ingredient is a Schedule I controlled substance, and the reams of Congressional testimony and findings on the controlled substances act. Read his concurring opinion and you'll see what I mean. And note that it was a concurring opinion; in other words, his side had already won. All he needed to do was join in the lead opinion. But as I said, he seemed to relish the arguably unconstitutional power Congress ceded to him ...

... All I'm saying is this: those of us who would like to see the judicial branches give more deference to the will of the people as expressed through their elected representatives have reason to be concerned about a future Justice McConnell.
10.27.2005 8:15pm
Simon (391563) (mail) (www):

... All I'm saying is this: those of us who would like to see the judicial branches give more deference to the will of the people as expressed through their elected representatives have reason to be concerned about a future Justice McConnell.


Yes, of course. McConnell's lack of deference to the legislative branches is so well known. Especially in his defense of the Court's Boerne decision.

(This is my way of subtly suggesting that you don't know what the hell you're talking about.)
10.27.2005 8:24pm
Simon (391563) (mail) (www):
Let me expand, briefly:

1) I don't know what standards the IRS actually uses to determine whether Scientology is a religion or not. But if its adherents want to claim that it is, I don't know an obvious reason to contradict them. (It sure as hell isn't a science.)

2) In the hoasca case that seems to have you so worked up, both statutes at issue -- the one McConnell relied on and the one drug statute enjoined -- were passed by Congress. Thus, for you to claim that McConnell's opinion reflects a lack of proper deference to the legislature is, to say the least, nuts.
10.27.2005 8:38pm
J..:
Hispanic like Consuelo Callahan, Sonia Sotomayor, Emilio Garza, and maybe Gonzales

I think Sotomayor would be a wonderful choice -- especially if the object is to pick a moderate (nominated by both Bush and Clinton) who is both smart and a non-accademic.

But, it ain't happening. (IIRC, the NRO hated even the suggestion, forgetting that Bush I nominated her first.)

Someone like Prado is more likely, though still unlikely.
10.27.2005 8:48pm
Urkle:
There is no one who will please everyone.

So, the question is, who does Bush want to please? I don't think he's feeling too warm and fuzzy toward the people who torpedoed Miers.

The only person he likely wants to please here is himself. Ergo, it's going to be another weird pick from his friends and cronies.
10.27.2005 8:51pm
TLSOriginalist (mail):
WHy does no one mention Miguel Estrada when discussing possible Hispanic nominees? Yes, there probably would be a filibuster, but he would also likely unify the Right and give Senators cover to fight.
10.28.2005 1:15am