In the November 4 issue of the Prospect, Chris Mooney questions why 300 law professors, many of them political liberals, would sign a letter urging Senate Democrats to confirm Michael McConnell to the United States Court of Appeals. The 300 agreed on McConnell's sheer talent and judicial temperament; they may not agree on much else. My own reasons for signing are very different from Mooney's speculations.
I believe the Constitution gives the president and the Senate an equal voice in the selection of judges. Judges do not work for the president, and the Senate is the principal constitutional check on a president using judicial nominations to undermine constitutional rights he doesn't like. This is the constitutional structure, and through the end of the 19th century, the Senate reviewed nominations much more aggressively than it does now.
When the President and a majority of the Senate disagree on constitutional law, each side must bargain for its position. They should meet somewhere in the middle, with nominees that split the difference or with some nominees that please the president and others that please the Senate. The Senate should demonstrate its good faith, but more importantly, the Senate must demonstrate its seriousness. It can do that only by rejecting many nominees and forcing the President to the middle.
By these standards, the recent Democratic performance has been pitiful. Republicans for a generation have worked systematically to move the federal courts to the right; Democrats have done much less to resist or to move the courts back to the middle. Despite all the brave talk during this presidency about the Senate's right to consider judicial philosophy, the Senate has so far confirmed 80 Bush nominees and rejected two. Republicans complain bitterly about those two, but two rejections are not nearly enough to force the president to bargain seriously over the philosophy of judicial nominees. Fifty-one nominations remain pending; citizens interested in judicial balance can only hope that many of those nominations are being allowed to slowly die of attrition or neglect.
Given this view of the nomination process, why do I support Michael McConnell? Simply because he is one of the very best of the Bush nominees. Senators should not reject half the nominees at random; they should make intelligent choices.
McConnell is among the best in part for the reasons of sheer ability set out in the letter from 300 law professors. Even after a highly successful bargaining process with this president, the Senate will have to confirm some seriously conservative nominees. The country will not be better off if it confirms the dumb ones.
McConnell is also among the best when we consider his views over a range of constitutional issues. He draws intense opposition from groups supporting abortion rights and groups opposed to vouchers for religious schools, two issues where his views are very conservative. But on free speech, school prayer, the rights of religious minorities and Congressional power to enforce civil rights and civil liberties, his views are closer to the ACLU's than to Justice Antonin Scalia's.
McConnell supports a broad range of free speech rights, and he has co-chaired a committee to oppose a constitutional amendment to ban flag burning. He supports the right of religious minorities to practice their faiths free of nonessential government regulation. He opposes school-sponsored prayer whether in the classroom or at public events like football games and graduation. He has sharply criticized the Supreme Court's decision upholding legislative chaplains.
He rejects the Supreme Court's exceedingly narrow interpretation of Congressional power to enforce constitutional rights. In the growing conservative split between judicial restraint and conservative judicial activism, he distinguishes the vigorous enforcement of express constitutional rights from creating rights and principles without basis in the constitutional text -- and the Rehnquist Court has created more of these than its predecessors.
McConnell has taken many other positions over the years that depart from Republican orthodoxy. He represented Chicago's first black mayor, Democrat Harold Washington, for free, in his early battles against mostly white and mostly more conservative opponents. He represented three former Democratic attorneys general in a human rights challenge to the first President Bush's order authorizing deportation of certain aliens facing persecution in their home countries. He opposed the impeachment of President Clinton when it mattered, and he attacked the most unprincipled part of Bush v. Gore -- the refusal to allow Florida time to complete a recount under the Supreme Court's newly announced standards. The point of these examples is not that these particular issues are likely to recur, but that even when emotions run high, he has never followed any party line.
McConnell is thus an ideal compromise nominee, offering something to both sides. Most importantly, his independent consideration of the merits of each issue shows habits of mind that we should want in judges. The Senate should aggressively force the President to nominate judges from across the range of understandings about constitutional issues. But whether or not it does that, it should confirm Michael McConnell.
Douglas Laycock is Professor of Constitutional Law at the University of Texas at Austin.
