The Volokh Conspiracy

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.

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."

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

"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.)

... 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.

Hispanic like Consuelo Callahan, Sonia Sotomayor, Emilio Garza, and maybe Gonzales