Like Orin and Eugene, I'm an admirer of Judge McConnell. Among other things, he once offered a seminar at the University of Chicago on "Economic Liberties and the Constitution." I have no idea what his views are on such issues (I'm recalling, from seeing his syllabus many years ago, that the seminar discussed Lochner, commercial speech, takings, the constracts clause, and the dormant commerce clause, but my memory may be faulty), but I like the idea that a potential Supreme Court nominee thinks that constitutional protection of economic liberties is important enough to warrant teaching a class on the subject.
However, I think that if McConnell were to be nominated, his opponents would have such a good (albeit unfair) soundbite against him that I'm not sure that he could survive it. He wrote, in discussing the 1954 case of Bolling v. Sharpe, that "[t]he suggestion that the Due Process Clause of the Fifth Amendment prohibits segregation of public facilities is without foundation." Balkin, ed., What Brown v. Board of Education Should Have Said, p. 166. The view that the Fifth Amendment does not prohibit discrimination by the Federal Government is a perfectly respectable originalist viewpoint, though, as I discuss in a recent Georgetown Law Journal article, I believe that originalists have vastly exaggerated the perceived problems with Bolling specifically, and more generally with the idea that the Fifth Amendment's Due Process Clause includes an antidiscrimination principle (indeed, I believe that Bolling was arguably more justified in terms of text and history than its companion case, Brown v. Board of Education).
But regardless of how plausible, sincere, or even correct McConnell's view of the Fifth Amendment and Bolling is, I'd hate to be on the receiving end of a People for the American Way ad stating that "Bush nominee Michael McConnell believes that the federal government may establish Jim Crow, segregated schools." Or, "McConnell believes that the federal government is allowed to discriminate based on race, sex, or ethnicity." Either such ad, while not exactly fair, would be accurate.
Related Posts (on one page):
- McConnell and Bolling v. Sharpe:
- Michael McConnell:
- The Miers Withdrawal:
But let's suppose that Congress had specifically authorized segregation of DC public schools, meaning that the Court didn't really have power to end the segregation in the DC schools without congressional help. Is that such a horrible notion? Everyone agrees that the Court doesn't have any power to desegregate private schools in the 50 states without legislative help. So what's the big difference? There really isn't one.
I think that the main problems with a McConnell nomination would include his assertions during his previous Senate hearings that anti-polygamy laws are unconstitutional now and were also unconstitutional going all the way back to the 1800s when the Court decided the Reynolds case. This view of the Free Exercise clause is sharply at odds with that of Justice Scalia who took a much different approach in Employment Division v. Smith. For a president who has staked so much on protection of traditional marriage, it would be difficult to reconcile a nominee who opposes anti-polygamy laws.
Another problem with a McConnell nomination would be his statement in his Senate hearings that the "only" way to overturn Casey and Roe would be by constitutional amendment. He spoke at his hearings very uncritically of the Casey decision, and he also said he supports the Court's other substantive due process cases involving family planning rights. He can point to other writings in which he opposed "substantive due process," but it's clear from his testimony that he does support the doctrine to at least some extent. Justice Scalia clearly does not.
Well, he does. He better be able to explain why he believes this in a coherent manner.
Richard Primus, Bolling Alone, 104 Colum. L. Rev. 975, 978-79 (2004).
Oh, and by the way, McConnell has written elsewhere that "[a]s a matter of judicial statecraft, the imperative in Bolling was clear." Id. at 977 n.9.
There are legitimate (if ultimately unpersuasive) arguments against Bolling, just as there are about Brown, Roe, Bob Jones, and almost every other Court decision ever handed down. That McConnell on occasion voiced such criticisms should hardly disqualify him for the Court; if anything, we should look to those criticisms — and the response of his peers — to see the quality and carefulness of his thought.
How Senators could chastize him for this, while claiming they are his moral superiors is puzzling.
Not good PR, but it's good originalism. Score one for McConnell.
McConnell does not believe that the federal, or state government may establish Jim Crow laws or segregate based on race. Many originalists have stated that Brown v. Board of Education cannot be sustained on originalist principles. They are right at to the reasoning in that decision.
But, McConnell argued very pursuasively in a law review article 81 Va. L. Rev. 947 that the original understanding of the 14th amendment prohibited racial segrecation when civil rights were involved. He writes that the Brown court's conclusion that school segregation was unconstitutional ir right, but that the reasoning is wrong. And that the faulty reasoning amd method used in that case cause great harm.
To claim that he thinks segregation or Jim Crow laws are constitutional is just plain wrong. He may be the best originalist defender of the point.
He would be a great nominee!
This is the quote Bernstein uses to claim that Demos might attack him. As I said the attack would be unfounded easily proven false.
Further, it doesn't matter whether the fifth amendment prohibits segregation, the 14th does. McConnell clearly believes that the 14th amendment prohibits segregation of public facilities so this is no cause for concern.
I believe he would be superb in defending his position before the senate.
The easiest way to judge pragmatism is to compare a justice's views on what ought to be (and his or her willingness to vote in support of those views) with what currently is. By that measure, Justice Thomas (he of the ultra-originalist understanding of the First Amendment) is hardly pragmatic, but Judge McConnell, whose views on all these issues are well within the jurisprudential mainstream, is. (You could also measure pragmatism along a Breyer-Scalia axis in Booker, i.e., willingness to upset the applecart v. overriding desire to make the system "work." I don't know where McConnell would come down on that measure, but he can't be more unpragmatic than Scalia.)
His quotes on Bolling are a narrow non-issue. How many non-lawyers would recognize the case or it's importance? My guess is less than 5%. And probably less than 50% among lawyers, too, at least those more than 5-10 years out from law school. As Christian pointed out above, no one with even a passing familiarity of his writings could McConnell somehow favors de jure segregation. And I imagine that if this was the charge that opponents tried to stick against him that a large number of well-known and very liberal law professors would rise to his defense (on this issue, at least).
Finally, to put all my cards on the table I think: 1) that the original opinions in both Brown and Bolling are underrated; 2) that Scalia's lack of pragmitism, at least as described above, is a good thing; and 3) that McConnell's argument about the original meaning of the equal protection clause is a noble failure. Come to think of it, there are probably very few issues on which I agree with McConnell's conclusions. But I'd still like to see him on the Court. Or, if he is rejected, that he is rejected for good reasons, not stupid ones.
To be clear, I agree that McConnell's views on Bolling shouldn't affect his prospects--what are the odds that the federal government is going to establish Jim Crow public schools, anyway, and not all bad policies are unconstitutional--but why question is, will it?
I think you're reading too much into McConnell's "opinion." Consider what he wrote in 1992:
The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?, 25 Loy. L.A. L. Rev. 1159, 1176 n.9 (1992)
As a card carrying liberal law professor who joined the large group that supported McC for his current post, I would hope that similar support next time (like the broad support Roberts got from the DC bar when nominated for the circuit) would be enough to give cover for Senators to ignore efforts like the ones that David worries about. I don't doubt they would be made, but they shouldn't win.
Part of Bork's problem (and it shouldn't have been, but TV is unfair) is that he looked so much like a B-movie villain. You could look at him and believe he'd rule to reinstate the pillory.
McConnell, in the pix I've seen, looks more like a goofy sidekick on the Partridge Family bus.
I think McConnell is proof positive why esteemed law professors will not be nominated to the Supreme Court.
Breyer and Scalia.
Under McConnell's theory (as presented in the comment sections of this blog), you can argue that laws restricting marriage to a man and a woman discriminate in favor of conservative Christianity and Orthodox Judiaism and against liberal Christianity and Reform Judiaism.
McConnell sounds like a brilliant but unconfirmable man.
The law in question in Reynolds criminalized polygamy and jailed people for marrying. I know of no laws criminalizing gay couples marrying or cohabitating or living in any other similar arrangement.
Note that I talk about marrying as separate from the granting of a state marriage license or additional benefits to heterosexual, monogomous relationships.
Read the 14th Amendment. Bolling v. Sharp's strained logic was caused because they 14th Amendment's equal protection guarantee applies to states only, not the federal government.
McConnell's analysis is obviously correct, but it's the kind of thing that just sounds bad. Of course, saying Bolling was wrongly decided not mean it should be overturned. There would be little point in doing that.
He probably wouldn't be today.
McConnell believes that the federal government is allowed to discriminate based on race, sex, or ethnicity
What about the fact that the federal government does "discriminate based on race, sex, [and] ethnicity"?
Let's just acknowledge the truth behind Bolling, and Brown as well, for that matter: they were the judiciary's then-urgent (in light of black WWII veterans returning to Jim Crow), moral responses to the Senate's long inability to pass any legislation under the Enforcement Clause of the 14th or, where the District of Columbia was concerned, to cause the federal government to conform to the same notions of equal protection that were applicable to the states under the 14th. Neither Brown nor Bolling would have been necessary, but for the persistent Dixiecrat filibuster. If we ever decide to make another amendment to the constitution on any issue, the one we should start (and probably end) with is quorum in the Senate. Leaving this issue to the Senators themselves has caused immense damage to our country over the last 150 years, not the least of which is the perverse expansion of judicial power that has occurred since the end of WWII, which has led fairly directly to the expansion of federal power at the expense of the States.
"Buyer's remorse", "BEWARE!", etc. It's based on his Senate testimony mentioned at confirmthem.com.
I got into the spirit and said, "What an uneducated, flip-flopping, pro-abortion moron."
The villagers' Borking torches are lit, and by gosh, they're going to burn some judges.
"One assumes that Messr[.] ... McConnell [is] now among the front runners for a Supreme Court appointment."
Go figure.
See my post on the matter here.
It seems to me that whether McConnell believes the Fifth Amendment prohibits segregation is quite different from the question of whether he believes that segretation is prohibited. The quote you give is very narrow, and it seems unjustifiable to generalize from it as you appear to have done.
If confronted with this quote, McConnell could respond that, just as the Third Amendment does not prohibit segregation, neither does the Fifth. That's why we have the Fourteenth.
[Mr. Brower, above, has already glanced upon this topic.]