The Real Record of Michael McConnell

An editorial memorandum by People For the American Way

September 25, 2002

To: Interested Parties

Fr: Ralph G. Neas

Re: The Real Record of Michael McConnell

In 1987, Michael McConnell, currently a nominee to the United States Court of Appeals for the Tenth Circuit, testified before Congress in support of another judicial nomination, that of Robert Bork to the Supreme Court. According to McConnell, Bork was “moderate” and “liberal -- in the sense of honoring individual liberties.” See Report of People For the American Way Opposing the Confirmation of Michael W. McConnell to the U.S. Court of Appeals for the Tenth Circuit (Sept. 17, 2002) (“PFAW Report”), at 24, n.44. As reflected in the Senate’s overwhelming bipartisan rejection of Bork’s confirmation and his commentary and writings since then, however, Robert Bork was neither a moderate nor a liberal, in any sense of those words.

Now, McConnell’s own supporters are trying to paint a similarly erroneous picture of him. But McConnell, like Bork, has a long record, including a record of prolific writings and legal advocacy, that is quite disturbing. That record reveals that McConnell, like Bork, is neither a “moderate” nor a “liberal,” but has taken extreme positions in opposition to key principles and precedents that protect civil rights and civil liberties, including Bob Jones University v. United States and Roe v Wade.

Discussed briefly below are examples of significant precedents that McConnell has criticized, as well as his failure to explain away at his confirmation hearing a number of the extreme positions that he has taken on civil rights and civil liberties. McConnell remains far outside the mainstream on key issues vital to protecting Americans’ rights and freedoms.

Among the many key Supreme Court decisions protecting civil rights and liberties that McConnell has criticized are:

  • Bob Jones University v. United States, 461 U.S. 574 (1983). 8-1 ruling that the IRS could properly revoke the charitable tax exemption of a private religious university that was committing racial discrimination by banning interracial dating among its students. McConnell has called Bob Jones an “egregious” example of the Court’s failure to intervene to protect religious freedom from the “heavy hand of government.” (PFAW Report at 3-4; 13.)
  • Roe v. Wade, 410 U.S. 113 (1973). Landmark case recognizing a woman’s constitutional right to choose whether to terminate her pregnancy. McConnell has compared Roe to the infamous Dred Scott ruling and has called it “a gross misinterpretation of the Constitution.” In fact, he has suggested that the Constitution’s equal protection clause should apply to fetuses. (PFAW Report at 24-28.)
  • Baker v. Carr, 369 U.S. 186 (1962) and Reynolds v. Sims, 377 U.S. 533 (1964). Seminal cases recognizing the important civil rights principle of “one person, one vote” under the Equal Protection Clause of the Fourteenth Amendment. McConnell claims that “one-person, one-vote” is “wrong in principle and mischievous in its consequences.” (PFAW Report at 8-9.)
  • Bolling v. Sharpe, 347 U.S. 497 (1954). Unanimous ruling 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, and holding that racial segregation in public schools in the District of Columbia was unconstitutional. McConnell claims that the equal protection requirement does not apply to the federal government. (PFAW Report at 9.)
  • Griggs v. Duke Power Co., 401 U.S. 424 (1971). Unanimous ruling 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. McConnell claims that Griggs was wrong and “abandon[ed] fairness of process.” (PFAW Report at 10.)
  • Roberts v. United States Jaycees, 468 U.S. 609 (1984). Court ruled that an organization’s policy of blatantly excluding women from regular membership was illegal under anti-discrimination laws and could not be justified as freedom of association protected by the First Amendment. McConnell has asserted that “most private noncommercial groups” should be exempt from anti-bias laws governing membership. (PFAW Report at 4.)
  • Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 7-2 rulings clarifying that employers can be liable for sexual harassment committed by supervisors. McConnell has claimed that these rulings will result in “unleashing plaintiffs’ lawyers on the nation’s workplaces to enforce codes of civil behavior,” and produce “fear and resentment.” (PFAW Report at 7.)
  • Johnson v. Transportation Agency, Santa Clara County, Ca., 480 U.S. 616 (1987). 6-3 ruling upholding a voluntary affirmative action plan taking gender into account in filling positions in “traditionally segregated” job categories where women had been “egregiously underrepresented.” McConnell asserts that the decision approves “employment quotas” on the basis of sex. (PFAW Report
    at 7.)
  • Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990). Unanimous ruling rejecting the claim that a religious organization, represented in the Court by McConnell, should get special exemption from general state sales and use tax regulations with respect to its sale of religious merchandise. (PFAW Report at 13-14.)
  • Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985). Unanimous ruling that the minimum wage, overtime and record keeping requirements of the Fair Labor Standards Act were applicable to the “ordinary commercial activities” of a nonprofit religious organization. McConnell now asserts that the government’s arguments, which he helped write, were “wrong on the merits.” (PFAW Report at 14.)
  • Reynolds v. United States, 98 U.S. 145 (1878). Decision upholding the conviction of a Mormon for polygamy under generally applicable criminal law. McConnell claims that Reynolds was “wrongly decided.” (PFAW Report at 15-16.)
  • Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). Court ruling specifically reaffirming Roe v. Wade. McConnell believes that the Casey decision “authorize[d] the creation of new fundamental rights not rooted in history and tradition.” (McConnell, “The Right to Die and the Jurisprudence of Tradition,” 1997 Utah L. Rev. 665 (1997)). (PFAW Report at 25-26.)

    McConnell failed to explain at his confirmation hearing a number of extreme positions he has taken that would endanger key civil rights and liberties.

  • McConnell and civil rights: At his hearing, McConnell stated to Senator Kennedy that laws ensuring equality of treatment in the workplace regardless of a person’s sexual orientation are appropriate. But in his writings, McConnell has argued that there should be an “exception” to such laws for individuals and for some corporations “who wish to refuse to contract or associate” based on a religious or non-religious objection to homosexuality. (PFAW Report at 6.) In other words, McConnell claims that any such persons or companies could simply exempt themselves from such anti-discrimination laws.
  • McConnell and reproductive freedom: McConnell claimed at his hearing that his vigorous opposition to Roe v. Wade is irrelevant because Roe is “settled” law and he would follow it. But as recently as four and a half years ago, McConnell claimed that Roe was “still illegitimate” and a “grave legal error[] in the service of an extreme vision of abortion rights.” (PFAW Report at 25.) And even without overruling Roe, McConnell has frequently supported serious restrictions on a woman’s right to choose that he would be free to try to impose as an appellate judge, such as banning abortion in most cases after “implantation” of the fertilized egg in the uterus, “about 14 days” after conception, instead of at fetal viability near the end of the second trimester of pregnancy. (PFAW Report at 27.)
  • McConnell and the FACE law: At his hearing, McConnell claimed that he believes that as a result of changes adopted by the Senate, the federal Freedom of Access to Clinic Entrances law is constitutional. Yet even since the law was passed in its final form, McConnell has argued that the definitions of misconduct are “constitutionally problematic” and “so vague, and . . . so sweeping” as to harm “lawful protest” under the First Amendment and called the law “unjust.” In fact, directly contrary to his testimony, McConnell has written that the Senate changes rendered the bill “even more problematic” in its alleged targeting of anti-abortion views. (PFAW Report at 28-32.) Especially since the Tenth Circuit has not ruled on the constitutionality of FACE, McConnell’s views raise serious concerns about his ability to uphold and enforce the law.
  • McConnell and “Bending the Law”: McConnell's testimony concerning his article “Breaking the Law, Bending the Law” only heightened concerns about whether he would fully enforce laws and legal opinions with which he passionately disagrees. McConnell tried to claim that his article was mostly critical of Judge Sprizzo, who acquitted two defendants who had obstructed an abortion clinic driveway on several occasions in violation of FACE and a court injunction. As Senator Schumer noted, however, McConnell’s praised Sprizzo, stating that “one cannot help admiring the judge’s act” that reflected “courage in defense of conscience.” (PFAW Report at 32.) While not advocating that judges break the law, in the article McConnell clearly endorsed “bending the law,” stating that Judge Sprizzo should have imposed a slap on the wrist such as a $50 fine for trespass. In response to Senator Schumer, McConnell at his hearing suggested that he was not aware that the defendants in the case had been repeat violators and would consider whether gradations of punishment might be appropriate. However, the 2d Circuit opinion reviewing Judge Sprizzo's acquittal decision clearly stated that the defendants had physically obstructed the clinic driveway and been arrested for doing so on several occasions over five years (1990 to 1995) before the U.S. Attorney filed a civil complaint under FACE. United States v. Lynch, 162 F.3d 732, 733-34 (2d Cir. 1998).
  • McConnell and special rights for religion: McConnell claimed at his hearing that he advocates “neutral” treatment for religion. Yet even at his hearing, and in a number of writings, he has argued for special treatment for religious adherents to exempt them from important rules, even in cases where the Supreme Court has unanimously found that the rules do not burden religion. This includes civil rights rules as in Bob Jones, anti-bigamy laws, neutral sales tax provisions on the sale of merchandise, and minimum wage and hours rules protecting workers. (PFAW Report at 13-16.)
  • McConnell and federalism and congressional laws protecting individual rights: McConnell pointed out at his hearing that he disagrees with the Supreme Court’s decision striking down a federal law protecting religious free exercise, which was based on “federalism” concerns. But he has applauded decisions striking down federal laws protecting women and the elderly as “cause for celebration” because they strengthened “federalism.” (PFAW Report at 10.) He praised the Court’s decision striking down key parts of the Violence Against Women Act and attacked Congress for passing it, claiming that it was a “redundant and symbolic statute, which only complicates the problem of crime.” (PFAW Report at 8.) He has asserted that much of Congress’ evidence in support of the law was “so false and distorted that it could serve as an update on How to Lie With Statistics.” (PFAW Report at 8.)
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