Gettin’ Hip on the Judiciary, Part I

The NY Times reports today that ailing Supreme Court Chief Justice William Rehnquist will likely be replaced by June, if not before. The most probable chain of events will be the elevation of an existing SCOTUS Justice to Chief Justice (Scalia? – ugh), with nominees put forward to then fill that vacancy.

Included on the list [of potential nominees] are Judges Michael W. McConnell of the United States Court of Appeals for the 10th Circuit, John G. Roberts of the United States Court of Appeals for the District of Columbia and J. Harvie Wilkinson III and J. Michael Luttig, both of the United States Court of Appeals for the Fourth Circuit. Another possible candidate is Judge Samuel A. Alito of the United States Court of Appeals for the Third Circuit, who sits in Newark.

By no means is this a complete list, but it’s as good a place as any to start educating ourselves about the possible additions to the Supreme Court. As a side note, I found a lot more information in favor of these judges on conservative sites than opposing them on liberal sites, making this post that much more important. Lefty blogs are all but MIA when it comes to vetting judicial nominees, particularly on the lower courts. If we don’t like the direction this country is headed, we ought to be taking as keen an interest in the judiciary as the Right does—and has been for some time now.


Judge Michael W. McConnell

McConnell is a particular dangerous chap to our side of the aisle, both because he is extremely ideologically conservative, and because he has considerable support. If you’ve ever cared about any progressive cause, care as much about making sure this guy doesn’t get on the bench. So extreme is he in his opposition to the advancement of civil rights, that he actually supports backwards movement, having supported attempts to limit congressional authority to protect civil rights and argued for weakening both statutory and constitutional protections against race-, gender-, and sexual orientation-based discrimination.

His disregard, and in fact contempt, for key civil rights principles is readily apparent upon examination of his judicial résumé:

In response to the Supreme Court’s 8-1 decision against Bob Jones University, which found, in response to the university’s racially discriminatory policies, that the IRS was allowed to deny tax-exempt status, McConnell wrote a pointed criticism, saying that the Court failed to allow the university’s religious claims to trump civil rights protections. (Yes, you read that right—he believes religious beliefs should trump civil rights.) Specifically, he claimed that the “racial doctrines” of should have been “tolerated” because they were “church teachings,” and cited the decision as an “egregious example” of the Court’s failure to “intervene to protect religious freedom from the heavy hand of government.” McConnell has also extended this notion to include religious schools that accept government-funded vouchers, which, in his estimation, should be allowed to racially discriminate during their admissions processes, provided the discrimination is rooted in religious beliefs.

His reaction to the specific aforementioned case is only one among a number of frighteningly small-minded critiques of various decisions favoring the rights of women and minorities. (For further examples, see also Griggs v. Duke Power Co. and Roberts v. United States Jaycees.) On abortion rights, he is, as you would expect, no better. He has repeatedly expressed his disdain for the Court’s decision on Roe v. Wade, which he has called “an embarrassment,” of “questionable legitimacy,” and a “grave legal error.” Additionally, he opposes the Freedom of Access to Clinic Entrances (FACE) Act, on the basis that, in his interpretation, it is unconstitutional. Via CivilRights.org:

In a recent article, he expressed admiration for a district court judge who refused to apply FACE because the defendants did not act with “bad purpose,” an element not found in the statute. McConnell’s statements of admiration for the “judicial nullification” of a federal statute that he does not agree with speaks volumes about his inability to fairly and impartially apply a range of civil rights statutes that may conflict with his views.

These are just a few brief examples of why progressives must aggressively oppose a nomination of Judge McConnell to the Supreme Court. The examples from which to draw, however, were seemingly endless.


Judge John C. Roberts

Roberts has quite a significant history in trying to undermine abortion rights, including, under the first Bush administration, co-authoring a Supreme Court brief as Deputy Solicitor General for Rust v. Sullivan which argued for the government’s ability to prohibit doctors in federally-funded family planning programs from discussing abortions with their patients.

Among Roberts’ other writings can be found articles in support of a more expansive reading of the Contracts and Taking clauses of the Constitution, holding positions that would restrict Congress’ means for environmental protection.

In addition to his judicial résumé, Roberts also has interesting political qualifications. He has been a political appointee under both Regan and the first Bush administration and is a member of the Republican National Lawyers Association.

End of Part One. I’ll be back later with Wilkinson, Luttig, and Alito.