People for the American Way Report in Opposition to the Confirmation of Michael W. McConnell

Introduction

In evaluating the nomination of Michael W. McConnell, there is no question that he possesses the intellectual ability and technical legal skills to be a federal judge. People For the American Way and People For the American Way Foundation have worked closely with, and in some cases against, McConnell on religious liberty issues on several occasions, and we have great respect for his intellect and legal skills. But these important prerequisites are clearly not sufficient for an individual to be confirmed to a lifetime position on the federal appellate bench. No one can seriously question that President Bush and his advisors were influenced by McConnell’s well-known legal philosophy and ideology in nominating him. By the same token, as more than 200 law professors have written to the Senate Judiciary Committee, Senators should consider whether a nominee has demonstrated an “open mind to decision-making” and a “record of commitment to the progress made on civil rights, women’s rights, and individual liberties.”1

Based on our review of McConnell’s record as a law professor and as an attorney, it is clear that McConnell does not satisfy those important criteria for a powerful lifetime appointment to the Tenth Circuit Court of Appeals. To the contrary, McConnell has strongly opposed key principles and precedents that protect civil rights and liberties, including the Supreme Court’s decisions in Bob Jones University v. United States and Roe v. Wade and the principle of one-person, one vote. He has promoted a significant re-interpretation of the First Amendment that would substantially weaken the separation of church and state, give preferential treatment to religion, and authorize direct government funding of religion. And he has advocated overruling or evading significant precedents with which he disagrees. McConnell’s philosophy and ideology on these important matters place him well outside the mainstream on these issues and threaten to interfere with his ability to function as a neutral, effective judge. If McConnell were confirmed, his views would jeopardize the rights and freedoms of individual Americans, particularly since the federal courts of appeal are the courts of last resort in virtually all cases.

This report reviews McConnell’s record as a law professor and an advocate in four areas: civil rights, reproductive freedom, religious liberty, and the role of precedent.2 It focuses on law review and other articles he has written, as well as a number of his legal briefs and arguments in court. This review strongly supports the conclusion that McConnell does not meet critical criteria for a lifetime appointment to the federal court of appeals, the second highest court in the country, and that the Senate Judiciary Committee should reject his confirmation.

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