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Hate Mail

By Stuart Buck - November 15, 2002 12:00 AM

Yet another group of law professors has decided to enter the political fray over President Bush's judicial nominations by sending a joint letter to the Senate Judiciary Committee. The letter strongly opposes the nomination of Michael McConnell to the Tenth Circuit Court of Appeals, and is apparently meant to counter an earlier letter from professors who support McConnell. McConnell himself has bemoaned the "extreme, partisan, hyperbolic, and vitriolic flavor of much [public] commentary by academics." This week's letter, sadly, serves only to prove McConnell's point.

What really seems to enrage the letter-signers is McConnell's 1997 article from First Things magazine, in which (according to the letter) he "praises a federal judge for disregarding the Freedom of Access to Clinic Entrances law by acquitting two anti-abortion protestors who had willfully violated a court order." This article "raises serious concerns about [McConnell's] ability to set aside his personal views on the bench."

What the letter leaves out is crucial. McConnell did not give unadulterated praise to the judge at issue; he noted that "[a]s a matter of law [the judge] was probably wrong. . . . And there is no precedent in our law for a judge to exercise the prerogative of jury nullification." The letter also ignores McConnell's observation that if the judge had strictly followed "the law," he would have had to send a priest and a bishop to jail simply for peacefully praying the rosary outside an abortion clinic. (McConnell points out the rather different view that liberal academics take towards the peaceful but illegal protests of Martin Luther King).

Finally, McConnell highlights the truly extraordinary imbalance that the law had created: "It is utterly incredible that [the protestors] might be sent to prison for six months for praying in a driveway. If they had been in that driveway for some other reason (a labor dispute, for example), or if they had committed the same sort of protest at another kind of business (a fur store, for example, or a CIA recruiting office), they would have gotten off with a slap on the wrist, had they been punished at all." McConnell's ringing defense of free speech here makes it simply astounding that the letter accuses McConnell of a "profound disregard for fundamental rights and liberties."

At times, the letter positively misrepresents McConnell's views. It charges that McConnell "disagreed with the results reached in Lemon v. Kurtzman, in which the Supreme Court held that direct funding of parochial schools violates the Establishment Clause." The letter cites one article - but nowhere in that article does McConnell argue that there should be direct funding of religious education. Indeed, McConnell actually argues that indirect aid - i.e., aid to parents rather than to schools - is much to be preferred. And the Supreme Court just this year agreed with McConnell in Zelman v. Simmons-Harris, the school choice case. McConnell beat the Court to the correct outcome by more than a decade - and for this, he is condemned.

On some points, the letter does not even attempt to explain why it disagrees with McConnell, or why anyone else should. For example, the letter states baldly that McConnell has "praised academic attempts to resurrect federalism doctrines." Well, what of it? Are we simply supposed to assume that any support of federalism is wrong? Has federalism really become so anathema that McConnell's belief in it is enough to blackball him from a federal judgeship?

The letter also takes McConnell to task for an article disagreeing with the Supreme Court's decision of Reynolds v. Sims, in which the Court laid down the famous "one man, one vote" principle that now prohibits the slightest disparity in the size of legislative districts. Nowhere does the letter mention McConnell's sophisticated argument that this judicial innovation has led to "protection for incumbents, a tendency toward homogeneous - and hence more partisan - districts, racial and partisan gerrymandering, and ultimately, a widespread sense that elections do not matter."

In any event, some of these professors should have thought twice before condemning McConnell's argument that the Equal Protection Clause does not apply to voting rights. In the Supreme Court decision that is hated by more legal academics than any other decision in recent memory (Bush v. Gore), the Court did precisely what it had done in Reynolds v. Sims: extend the Equal Protection Clause's protection for voting rights. McConnell's article on Reynolds, therefore, could well be taken to demonstrate why the Supreme Court's decision in Bush v. Gore was wrong on originalist terms.

Indeed, McConnell himself, in an all-too-rare display of scholarly integrity, criticized Bush v. Gore for leaving "Bush as president not so much by the will of the electorate, but by default." One would think that these left-leaning academics would praise McConnell both for his argument and for his principled, consistent stand.

In short, what the letter boils down to is this: A person who has publicly registered disagreement with one or more Supreme Court decisions is unfit to serve as a federal judge. This principle, applied equally, would bar all intelligent people from serving as federal judges - after all, no intelligent person could possibly agree with every Court decision - unless they had spent their entire lives muzzling themselves from uttering a word on any matter of public importance. This letter should rightfully be ignored. With the impending turnover in Senate control, I rather think it will be.

Stuart Buck is a lawyer. He publishes The Buck Stops Here weblog and studied with Michael McConnell when he was a guest professor at Harvard Law School in 1999.

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