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

McConnell has severely criticized landmark Court rulings recognizing the “one-person, one-vote” principle and protecting against employment discrimination

One of the most important civil rights principles recognized by the Supreme Court under the Fourteenth Amendment is the principle of “one person, one vote.” This principle, which calls for election districts to be nearly equal in population in order to protect the equality of all voters in our democracy, has been called one of the most important guarantees of equality in our Constitution. See Wesberry v. Sanders, 376 U.S. 1, 8, 17-18 (1964)(majority opinion by Justice Black).

In an article prepared for a Federalist Society conference in 2000, however, McConnell lambasted this fundamental principle. The Court’s “theory” in such cases, McConnell wrote, “was wrong in principle and mischievous in its consequences.”12 Although McConnell asserted that the Court could have achieved many of the benefits of its reapportionment decisions by basing them on the Constitution’s Republican Form of Government Clause, he specifically attacked the Court’s well-recognized decisions striking down malapportioned districts under the Equal Protection Clause. According to McConnell, it is “clear” that the Equal Protection Clause “was not originally understood by its framers to encompass voting rights” at all, no matter what the circumstances. Id. at 110. He maintained that the Court’s rulings have “twisted” the Fourteenth Amendment “out of its intended meaning” and produced “pernicious practical results.” Id. at 117, 111.

Even McConnell has recognized that his views on “one person, one vote” are out of the mainstream. “There are no dissenters from that proposition on the Supreme Court, and there have been none for decades,” he acknowledged. “Legislatures, litigants, judges, and academics all accept the proposition.” Id. at 103. This recognition makes McConnell’s attack on this fundamental principle all the more troubling.

McConnell has also suggested that the Constitution does not impose equal protection requirements on the federal government, contradicting Bolling v. Sharpe, 347 U.S. 497 (1954). In Bolling, the Court ruled that racial segregation in public schools in the District of Columbia was unconstitutional, explaining that the Due Process Clause of the Fifth Amendment imposes an equal protection requirement on the federal government similar to that imposed on the states by the Fourteenth Amendment. In a chapter in a recent book entitled What Brown v. Board of Education Should Have Said (Balkin ed. 2001), McConnell suggested that school segregation in D.C. should have been outlawed on non-constitutional grounds, but that the equal protection mandate was imposed by the Constitution through the Fourteenth Amendment “only on the states” and should not be required via the Fifth Amendment. Id., part II, chapter 7, at 164, 163. In that article and elsewhere, McConnell also makes the case that the “original intent” of the Fourteenth Amendment was consistent with the result, but not the rationale, of Brown v. Board of Education, 347 U.S. 483 (1954).

McConnell has also severely criticized yet another Supreme Court precedent crucial to the protection of civil rights. In its unanimous decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Court recognized that employment practices that have a disparate impact in excluding minorities or women are illegal under Title VII, unless they are justified as promoting a business necessity. The importance of the Griggs principle in combating employment discrimination has been widely recognized on a bipartisan basis, including by Congress in reaffirming Griggs in enacting the Civil Rights Act of 1991.

Yet according to McConnell, the disparate impact standard is the “underlying problem” in employment discrimination law. AEI at 43. In this area, McConnell has written, Griggs was inconsistent with Congress’ intent in Title VII and was “the first decision to abandon fairness of process.” He claims that it “left employers to choose between two unpalatable alternatives –- either to engage in race-conscious hiring, or to lose their discretion over the establishment of job qualifications.” Id. at 43-44. The experience of thousands of employers, as well as Congress’ judgment, conclusively refute these extreme claims by McConnell.

12 McConnell, “The Redistricting Cases: Original Mistakes and Current Consequences,” 24 Harv. J. L. & Pub. Pol’y 103, 104 (2000) (“Redistricting”).

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