In addition to Roberts, McConnell has criticized other important Supreme Court decisions that have helped combat sex discrimination and harassment. In 1998, the Court issued 7-2 rulings in two cases to help clarify that employers can be liable for sexual harassment by supervisors. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). As McConnell acknowledged, even some groups representing employers praised the rulings for helping clarify the law. McConnell nonetheless criticized those rulings as losses for the “conservatives on the Court” that would result in “unleashing plaintiffs’ lawyers on the nation’s workplaces to enforce codes of civil behavior” and “fear and resentment” in the workplace.9 This criticism by McConnell raises serious concerns about how McConnell as a judge would interpret and apply crucial legal provisions and precedents on sexual harassment.
McConnell has also attacked an important Court precedent upholding voluntary affirmative action to help combat sex discrimination. In Johnson v. Transportation Agency, Santa Clara County, Ca., 480 U.S. 616 (1987), the Court ruled 6-3 that a voluntary affirmative action plan taking gender into account in filling positions in “traditionally segregated” job categories where women had been “egregiously underrepresented” complied with Title VII of the 1964 Civil Rights Act. Id. at 631, 638 (interal citation omitted). The Court carefully noted that the plan was consistent with Title VII and past decisions approving voluntary affirmative action, did not involve quotas, and did not improperly harm male employees. Id. at 628-638. Nevertheless, McConnell criticized the decision as an example of “[j]udicial disregard for legislative intent” and as signifying “the Court’s approval of employment quotas on the basis of race and sex.”10 McConnell’s clear misreading and criticism of Johnson are extremely troubling.
On the other hand, McConnell has praised several narrow, 5-4 Court decisions that have seriously harmed women’s rights. He commended as a “sensible decision” the Court’s 5-4 holding in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), which severely limited the ability of students victimized by sexual harassment by a teacher to recover damages from the school district. As Justice Stevens’ dissent pointed out, however, the majority’s holding was “not faithful either to our precedents or to our duty to interpret, rather than to revise, congressional commands,” id. at 293 (Stevens, J., dissenting) -- criteria that should have led a believer in original intent like McConnell to disagree with the decision.
In addition, McConnell has strongly praised the Court’s 5-4 decision in United States v. Morrison, 529 U.S. 598 (2000), which struck down key parts of the federal Violence Against Women Act, while severely criticizing the law’s enactment. Even before the Supreme Court’s ruling, McConnell commended the appellate court decision invalidating the law as “unassailable,” and suggested that the “hard question was why such a statute would ever be enacted” in the first place.11 After the high Court’s ruling, McConnell wrote an article praising it entitled “Lies, Damned Lies, and the ‘Evidence’ for the Violence Against Women Act,” Salt Lake Tribune (June 4, 2000) at AA4. Notwithstanding the serious criticism of the 5-4 decision in Morrison, McConnell asserted that a contrary ruling would “twist the Commerce Clause beyond all recognition.” He also attacked Congress’ passage of the law itself, calling it a “redundant and symbolic statute, which only complicates the problem of crime.” McConnell went so far as to claim that “much of the ‘evidence’” accumulated by Congress in support of the act “is so false and distorted that it could serve as an update to How to Lie With Statistics.” Id. Even if true, he asserted, Congress’ evidence “does not prove anything of legal consequence” since “[m]ountains of nothing equal nothing.” Id. Even beyond McConnell’s disregard for women’s rights, this apparent contempt of Congress and praise for rulings limiting its authority raise extremely
disturbing concerns about McConnell’s nomination, as discussed further below.