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


1 These are two of the criteria for evaluating a judicial nominee suggested by more than 200 law professors in a letter sent to the Senate Judiciary Committee in July 2001. As these professors explained, no federal judicial nominee is presumptively entitled to confirmation. Because federal judicial appointments are for life and significantly affect the rights of all Americans, and because of the Senate’s co-equal role with the President in the confirmation process, nominees must demonstrate that they meet the appropriate criteria.

2 McConnell has been a law professor specializing in constitutional law since 1985, and currently teaches at the University of Utah College of Law. He previously worked in the Office of the Solicitor General and the Office of Management and Budget. He is affiliated with the law firm of Mayer, Brown & Platt, and primarily represents clients in selected cases involving issues of interest to him, particularly religious liberty. He is a prolific writer who has published numerous articles, and is a member of the Federalist Society, the Constitutional Law Section of the Association of American Law Schools, and other organizations.

3 Rehnquist dissented from the Court’s judgment based on his belief that Congress had not taken action to deny tax exempt status to racially discriminatory schools. 461 U.S. at 612. But he specifically noted that Congress had the power to do so and that “I agree with the Court that such a requirement would not infringe on petitioners’ First Amendment rights.” Id. at 622, n.3.

4 McConnell, “The Religion Clauses of the First Amendment: Where is the Supreme Court Heading?” 32 Cath. Law 187, 20 (1989)(“Religion Clauses”).

5 More recently, McConnell defended then-Senator John Ashcroft’s controversial commencement speech at Bob Jones University, calling it “beautiful.” D. Savage, “The Presidential Transition: ‘No King but Jesus,’ Ashcroft Told Bob Jones,” Los Angeles Times (Jan. 13, 2001).

6 Brief for Petitioners in Dale, 2000 WL 228616 at *27 (Feb. 28, 2000).

7“The Supreme Court 2000: A Symposium,” 106 First Things at 37 (Oct. 2000) (“First Things (Oct. 2000)”).

8 See also McConnell, “Salt Lake City Deserves Credit for Wrestling with Gay Rights Ordinance,” Salt Lake Tribune (Nov. 22, 1998) at AA6 (claiming that “’anti-discrimination’ formula” actually “imposes on everyone a particular perspective on the morality of homosexual conduct”).

9 McConnell, “The Supreme Court in 1998,” 87 First Things (November 1998)(“First Things 1998”) at 37, 38.

10 McConnell, “The Counter-Revolution in Legal Thought,” Policy Review 18, 21 (Summer 1987). McConnell has similarly criticized the Supreme Court’s decision upholding voluntary affirmative action with respect to minority employees in United Steelworkers v. Weber, 443 U.S. 193 (1979), claiming that it sanctioned “affirmative discrimination programs in favor of black workers.” McConnell, “Affirmative Action after Teal,” AEI Journal on Government and Society 38 (March/April, 1983), at 42 (“AEI”).

11 McConnell, “Rule of Law: Let the States Do It, Not Washington,” The Wall Street Journal (March 29, 1999).

13 McConnell, “The Asymmetricality of Constitutional Discourse,” XL NOMOS 300, 304 (1998).

14> First Things (Oct. 2000) at 36.

15 First Things (Oct. 2000) at 37 (quoting Justice Stevens).

16 Id.

17 See McConnell, “Institutions and Interpretation: A Critique of City of Boerne v. Flores,” 111 Harv.L.Rev. 153 (1997).

18 Morrison, 529 U.S. at 664 (Breyer, J., dissenting). Justice Breyer and the other dissenting justices did not formally reach the Section Five issue because they believed the law should have been upheld under the Commerce Clause.

19McConnell, “Lies, Damned Lies, and the ‘Evidence’ for the Violence Against Women Act,” Salt Lake Tribune (June 4, 2000).

20 McConnell, “Why ‘Separation’ is Not the Key to Church-State Relations,” The Christian Century (Jan. 18, 1989), at 46, 47.

21 “The Supreme Court 1997: A Symposium,” 76 First Things, at 32 (Oct. 1997).

22 See McConnell’s Answers to Senate Judiciary Committee questionnaire, Ques. and Ans. No. 18.

23 McConnell, “The Rule of Law and the Role of the Solicitor General,” 21 Loy. L. A. L. Rev. 1105, 1109 (June 1988).

24 McConnell had also filed an amicus curiae brief in the case on behalf of several organizations urging the Court to uphold the special statute. See Brief Amicus Curiae of the Christian Legal Society, et al., Board of Education of the Kiryas Joel Village School District v. Grumet, 1993 U.S. Briefs 517.

25 McConnell, “What Would it Mean to Have a ‘First Amendment’ for Sexual Orientation?,” in S. Olyan & M. Nussbaum, Sexual Orientation & Human Rights in American Religious Discourse (1998), 234, 249.

26 Id.

27 See, e.g., McConnell, “Religious Freedom at a Crossroads,” 59 U. Chi. L. Rev. 115, 186 (Winter 1992).

28 See, e.g., McConnell, “Religious Freedom at a Crossroads,” 59 U. Chi. L. Rev. 115, 138 (Winter 1992); McConnell, “Free Exercise Revisionism and the Smith Decision,” 57 U. Chi. L. Rev. 1109 (Fall 1990).

29 McConnell, “Freedom From Religion?,” The American Enterprise, at 40 (Jan./Feb. 1993).

30 Brief for Petitioners, Mitchell v. Helms, 1999 WL 639126, *17.

31 1999 WL 639126, *43.

32 Mitchell v. Helms, 530 U.S. 793, 840 (2000) (O’Connor, J., concurring).

33 It is also worth noting that McConnell has strongly criticized the Court’s landmark precedent of Lemon v. Kurtzman, 403 U.S. 602 (1971), in which the Court adopted a three-part test for determining the constitutionality of a law or government practice under the Establishment Clause. See, e.g., McConnell, “Stuck With a Lemon,” 83-Feb. A.B.A. J. 46 (Feb. 1997). In particular, McConnell disagrees with the Court’s requirement, which the Court has upheld in recent decisions, that in order to be constitutional a law must have been passed for a secular purpose. See, e.g., McConnell, “Religious Freedom at a Crossroads,” 59 U. Chi. L. Rev. 115, 128 (Winter 1992).

34 McConnell, “Religious Freedom at a Crossroads,” 59 U. Chi. L. Rev. 115, 185 (1992). Indeed, McConnell has even criticized the entire metaphor of the “wall of separation” between church and state, calling it “misleading.” McConnell, “Freedom From Religion?,” The American Enterprise (Jan/Feb. 1993), at 36. According to McConnell, the separation of church and state “is not, and cannot be, the central guiding principle.” McConnell, “Why ‘Separation’ is Not the Key to Church-State Relations,” The Christian Century 43, 47 (Jan. 18, 1989).

35 “Religious Liberty and the Bill of Rights,” Hearings Before the Subcomm. on the Constitution of the House Committee on the Judiciary, 104th Cong., 1st Sess. (1995) (hereafter “1995 House Testimony”), at 130.

36 Id. In this same testimony, McConnell criticized the decision of the Washington State Supreme Court in Witters v. State of Wash. Commission for the Blind, 771 P.2d 1119 (Wash.), cert. denied, 493 U.S. 850 (1989), in which the court held that it would violate the state constitution for public funds to be used to pay for a vocational student to attend a private Bible college in order to become a pastor, missionary, or church youth director. 1995 House Testimony at 129-30. Significantly, although the U.S. Supreme Court had previously ruled in the same case that such funding did not offend the federal Constitution, the Court explained that, on remand of the case to the state Supreme Court, that court was “of course free to consider the applicability of the ‘far stricter’ dictates of the Washington State Constitution.” Witters v. Wash. Dept. of Services for the Blind, 474 U.S. 481, 489 (1986) (emphasis added).

37 Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002).

38 McConnell’s brief is available at 1999 WL 1272948.

39 1995 House Testimony at 122-24.

40 See also McConnell, “‘God is Dead and We Have Killed Him!’: Freedom of Religion in the Post-modern Age,” 1993 B.Y.U.L. Rev. 163, 175, 188 (1993) (criticizing Roberts).

41 McConnell, “Freedom From Religion?,” The American Enterprise, (Jan./Feb. 1993), at 37, 36.

42 Id. at 36.

43 Id. at 36-37. Again ignoring the fact that the teachers in Roberts and Bishop were not acting in their private capacities but as representatives of the government, McConnell listed those cases among a number of cases not heard by the Court in which, he contends, “government power has been brought to bear” to prevent an individual from “trying to live his life . . . according to the tenets of [his] faith.”

44 McConnell’s arguments in this respect are reminiscent of his assertion that Judge Robert Bork, whose nomination to the Supreme Court he supported in Senate testimony, was “moderate” and “liberal -- in the sense of honoring individual liberties.” See The Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 100th Cong., 1st Sess. 1355 (1987). McConnell “liberally” seeks to protect what he regards as the “individual liberties” of teachers without regard for the true religious liberty interests of captive audiences of students.

45 See, e.g., “The America We Seek: A Statement of Pro-Life Principle and Concern,” 63 First Things Reprint 1, 3 (May 1966) (“Statement of Pro-Life Action”) (“. . . as pro-life leaders and scholars, we want to propose a program of action. . . .”). McConnell has authored extensive legal opinions published in legal journals and The Wall Street Journal, provided testimony on legislation, and taken other actions together with other leading anti-choice activists seeking to restrict or ban abortion in the United States.

46 The lower federal courts have played an increasingly important role in this area. Particularly since the U.S. Supreme Court’s 1992 decision in Casey, 505 U.S. 833, there has been a concerted strategy by anti-choice activists to enact more and more legislative restrictions and burdens on women’s right to choose, and to challenge laws protecting women from serious physical threats and violence at family planning clinics. These cases are being decided by federal courts of appeals or in some cases are being decided first by these courts before Supreme Court review.

47Statement of Pro-Life Action at 2.

48Id. at 4.

49Michael W. McConnell, “Roe v. Wade at 25: Still Illegitimate,” The Wall Street Journal, Jan. 22, 1998, at A18, 1998 WL-WSJ 3479901.

50 Id.

51 See Statement of Pro-Life Action at 4.

52 Id. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846, 876-79 (1992), the Supreme Court specifically reaffirmed the constitutionality of Roe and reviewed restrictions as to whether they placed an “undue burden” on a woman’s right to choose.

53 McConnell has stated a preference for targeting criminal penalties against “abortionists” rather than “women in crisis.” Id. Statement of Pro-Life Action at 4. “Women in crisis” seeking an abortion would be forced to return to the tragic back alleys of the pre-Roe period.

54 McConnell has written: “. . .the more natural implication of the Equal Protection Clause is that it stands against abortion rights. The Equal Protection Clause is designed to protect members of vulnerable and politically unrepresented minorities from the oppressive measures of the dominant majority. Abortion laws are designed to protect fetuses or unborn children, surely a vulnerable and unrepresented group, from private violence.” Michael W. McConnell, “How Not to Promote Serious Deliberation About Abortion,” 58 U. Chi. L. Rev. 1181, 1189 (1991).

55 McConnell, “Roe v. Wade at 25: Still Illegitimate,” The Wall Street Journal, Jan. 22, 1998, at A 18; Statement of Pro-Life Action at 2. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court struck down as a violation of the constitutional right to privacy a Connecticut criminal statute which, among other things, prohibited doctors from prescribing contraceptives and had been used to convict a Planned Parenthood doctor who had provided birth control information and a prescription to a married couple. In a 1997 law review article, McConnell rejected a constitutional right to privacy but argued that the Court could determine on an ad-hoc, case-by-case basis whether very specific practices might be protected if, among other things, a “substantial consensus of the states” had recognized the “right” over a period of time. Michael W. McConnell, “The Right to Die and the Jurisprudence of Tradition,” 1997 Utah L. Rev. 665, 691-701. On this basis, McConnell may be willing to accept Griswold if limited to its facts, i.e. “the precise question of the right of married couples to use contraceptives within the privacy of the marital bedroom.” Id. at 700. However, it is unclear whether McConnell would consider other uses of birth control protected and he very well could find laws or regulations relating to new emergency contraceptives and early “medical abortions,” which have been vigorously opposed by anti-choice activists, not constitutionally protected unless and until adopted by a “substantial consensus” of states over a period of time. As recognized in Roe, the Supreme Court also has found that the right to privacy extends “to activities relating to marriage. . . . procreation. . . family relationships. . . and child rearing and education . . . .” 410 U.S. 113, 152-53 (1973) (citation omitted).

56 Statement of Pro-Life Action at 3-4.

57 McConnell, “How Not to Promote Serious Deliberation About Abortion,” at 1197-1198.

58 McConnell, “How Not to Promote Serious Deliberation About Abortion,” at 1199.

59 Statement of Pro-Life Action at 4.

60 530 U.S. 914 (2000).

61 McConnell, “Roe v. Wade at 25: Still Illegitimate,” The Wall Street Journal, Jan. 22, 1998, at A18.

62 Id. As the Supreme Court found in Stenberg, “[a]bout 90%” of abortions occur in the first trimester of pregnancy and “[a]pproximately 10%” during the second trimester. 530 U.S. at 923-24.

63 McConnell, “How Not to Promote Serious Deliberation About Abortion,” at 1195-96. McConnell further distorts factual reality to support his legal justification for increased counseling requirements by defending so-called “voluntary crisis pregnancy centers” which often masquerade as family planning clinics and provide false health information and scare tactics to deter women from freely exercising their right to choose. See NARAL Foundation, Unmasking Fake Clinics (Dec. 2000).

64 United States v. Gregg, 226 F.3d 253, 259 (3d Cir. 2000), cert. denied, 532 U.S. 971 (2001) (quoting from House Report No. 103-306, at 6, 10).

65 House Conference Report on Freedom of Access to Clinic Entrances Act of 1994, H.R. Conf. Rep. No. 488, 103rd Cong., 2d Sess. (1994), 1994 U.S.C.C.A.N. 724, 1994 WL 168882 at *7 (hereinafter “FACE Conference Report”).

66 United States v. Gregg, 226 F.3d at 259 (citing Senate Report No. 103-117; House Report No. 103-306).

67 McConnell, “Breaking the Law, Bending the Law,” 74 First Things Reprint 1 (June/July 1997), at 2.

68 See Michael Stokes Paulson and Michael W. McConnell, “The Doubtful Constitutionality of the Clinic Access Bill,” 1 Va. J. Soc. Pol’y & L. 261, 267-279 (Spring 1994). The law journal article published in 1994 includes a slightly edited version of McConnell’s testimony as well as McConnell’s views of the relevant Senate amendments that became part of the final legislation enacted in 1994.

69 For example, the amended legislation that was enacted in the final law used the same definition for “intimidate” as the commonly used element in the crime and tort of assault. See 18 U.S.C. § 248 (e)(3).

70 Paulson and McConnell, “The Doubtful Constitutionality of the Clinic Access Bill,” at 286-87.

71 For example, the Eighth Circuit Court of Appeals flatly rejected such a vagueness and overbreadth challenge, holding that “[t]he meaning of these terms is quite clear” and that indeed the meanings of “interfere with” and “physical obstruction” are “even clearer in FACE” than as used in Supreme Court caselaw because of FACE’s specific, “narrow definitions of these terms.” United States v. Dinwiddie, 76 F.3d 913, 924 (8th Cir.), cert. denied, 519 U.S. 1043 (1996).

72 McConnell, “Breaking the Law, Bending the Law,” at 2.

73 18 U.S.C. § 248(d)(1).

74 See infra at n.78 (FACE cases rejecting McConnell’s First Amendment argument); Hill v. Colorado, 530 U.S. 703 (2000); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994).

75 United States v. Dinwiddie, 76 F.3d at 923. Thus, the Court stated that FACE “would prohibit striking employees from obstructing access to a clinic in order to stop women from getting abortions, even if the workers were carrying signs that said, ‘We are underpaid!’ rather than ‘Abortion is wrong!’” Id.

76 Paulson and McConnell, “The Doubtful Constitutionality of the Clinic Access Bill,” at 287-89. McConnell also mischaracterized the religious liberty amendment in order to try to continue his objections to FACE, stating that the amendment singled out “gay rights protests that unlawfully interfere with worship services” as another “category of unpopular protest.” Id. at 287. Yet, the plain text of the religious liberty amendment, like its clinic access counterpart, singles out no group or speech, and its prohibitions could easily be applied to protests against any number of religious groups or viewpoints that may or may not be popular with the majority of Americans. Given his professed allegiance to institutional restraint in judicial analysis, it is troubling that McConnell appears to ignore the plain text of FACE in order to help attack the law’s constitutionality.

77 Id. at 289.

78 Terry v. Reno, 101 F.3d 1412 (D.C. Cir. 1996), cert. denied, 520 U.S. 1264 (1997); United States v. Weslin, 156 F.3d 292 (2d Cir. 1998), cert. denied, 525 U.S. 1071 (1999); United States v. Gregg, 226 F.3d 253 (3d Cir. 2000), cert. denied, 532 U.S. 971 (2001); Hoffman v. Hunt, 126 F.3d 575 (4th Cir. 1997), cert. denied, 523 U.S. 1136 (1998); American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir.), cert. denied, 516 U.S. 809 (1995); United States v. Bird, 124 F.3d 667 (5th Cir.), amended by 1997 U.S. App. Lexis 33988 (5th Cir. 1997), cert. denied, 523 U.S. 1006 (1998); United States v. Soderna, 82 F.3d 1370 (7th Cir.), cert. denied, Hatch v. U.S., 519 U.S. 1006 (1996); United States v. Dinwiddie, 76 F.3d 913 (8th Cir.), cert. denied, 519 U.S. 1043 (1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995).

79 See McConnell, “Breaking the Law, Bending the Law,” 74 First Things Reprint 1 (June/July 1997); United States v. Lynch, 162 F.3d 732, 734-35 (2d Cir. 1998).

80 McConnell, “Breaking the Law, Bending the Law,” at 1.

81 Id. at 1, 3.

82 McConnell, “We Need Justices Who Mean Business,” Wall Street Journal (July 27, 1988)

83 McConnell, “The Supreme Court 1998,” First Things (Nov. 1998) at 37.

84 First Things (Oct. 2000) at 37.

85 Brief for Petitioners in Mitchell v. Helms, 1999 WL 639126 (Aug. 19, 1999) at *30-33.

86 Id. at *33-46.

87 See Brief for Christian Legal Society, et al., in Agostini. 1996 U.S. Briefs 552 (Feb. 28, 1997).

88 McConnell, “The Importance of Humility in Judicial Review,” 65 Fordham L. Rev. 1269, 1288 (1997).

89 McConnell, “Breaking the Law, Bending the Law,” at 1, 3.

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