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

IV. McConnell’s Strong Opposition to Significant Precedent Would Threaten Critical Principles Protecting Civil Rights and Liberties

As discussed above, McConnell’s record includes harsh criticism of numerous Supreme Court and other federal court precedents and principles crucial to the protection of civil and constitutional rights and liberties, such as reproductive rights and one-person, one-vote. Previous nominees have asserted to the Judiciary Committee that their pre-judicial records were irrelevant, because they would simply follow the law and court precedent and would not be influenced by their own prior opinions and actions. Experience (as well as common sense) has belied these claims. In McConnell’s case, however, there is direct evidence in his own record that his view of precedent and the judicial role would endanger key protections for civil rights and liberties if he had the power to interpret and enforce them.

McConnell has recognized that the prior experience and views of judges and justices will influence how they decide cases and interpret constitutional and statutory provisions. In 1988, McConnell publicly urged presidential contenders Dukakis and Bush to consider appointing Supreme Court justices who would not be likely to be “hostile” to free enterprise and business interests based on their prior records and experience.82 A decade later, he lamented that “[s]even appointments by Republican Presidents have left astonishingly little mark” on the Court.83 More recently, he has explained that the “meaning of the Constitution in dozens of important areas” will literally be determined by who “appoints the next few Justices” on the Court, clearly suggesting that the attitudes and views of such appointees will be extremely important in their future decisions.84 The same would undoubtedly be true for McConnell.

In addition, McConnell as a legal advocate has proven extremely facile at seeking to distinguish and limit prior precedent he opposes, and has argued vigorously for overruling prior precedent even when not absolutely necessary to the result he seeks. For example, as discussed above, McConnell represented parents seeking to sustain the provision of computers and other equipment to parochial schools in Mitchell v. Helms. His brief spent three pages explaining that the case was distinguishable from several previous Supreme Court rulings.85 He then went on for thirteen pages to strongly maintain that the Court should overrule these prior cases in any event to “spare governments, litigants, and the courts the expense and confusion of trying cases" under these precedents.86 In Agostini v. Felton, 521 U.S. 203 (1997), McConnell filed an amicus curiae brief for the Christian Legal Society and other groups in which he argued that the Court should not only overrule the precedent directly on point (Aguilar v. Felton, 473 U.S. 402 (1985)), but should also overturn or repudiate an entire line of cases beginning with Lemon v. Kurtzman, 403 U.S. 602 (1971).87 As a judge, McConnell would have much more power to implement such views.

In fact, McConnell has specifically stated that when faced with what he considers “questionable precedents” it is “usually better to rethink the precedents than to contrive a way to evade them.” Redistricting at 117. Narrowing, extending, reinterpreting, and overruling are all “common and legitimate” ways of “dealing with precedent” by judges, he has explained.88 Where a judge’s view of text, original understanding, presumption of constitutionality, tradition, and precedent conflict in “hard cases,” he has acknowledged that “judges may have no choice but to allow their own convictions and moral intuitions to guide the selection of which course to follow.” Id. at 1292. As a judge, McConnell’s convictions about precedents and principles that protect civil rights and liberties would threaten disaster for safeguarding those freedoms.

As a federal appellate judge, McConnell would not be able to formally overrule Supreme Court precedents like Roe v. Wade. But as his own writings make clear, the ability to “evade” or narrow them could have similar results. As discussed above, in the articles, “Breaking the Law, Bending the Law,” McConnell expressed admiration for a judge who had acquitted abortion opponents who had violated a court injunction protecting an family planning clinic. McConnell recognized that the judge did not have the power to disobey the law, but suggested that the judge could have effectively accomplished the same thing by handing down a lenient – or suspended – sentence or a minor fine.89

Given McConnell’s strong views on the critical matters that we have discussed above, there is serious doubt that McConnell would have an open mind in cases involving these issues. Particularly coupled with McConnell’s own writings concerning precedent and the role of judges, it is clear that McConnell as a federal appellate judge would seriously jeopardize principles and precedents that preserve the civil and constitutional rights of all Americans.

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