September
18, 2002 9:00 a.m. Saving
McConnell
After
savaging a White House nominee, Democrats appear ready to go easy
on the next one.
t's
looking good," says a Hill Republican when asked about the confirmation
chances of Michael McConnell, the University of Utah professor who has
been nominated for a place on the Tenth Circuit Court of Appeals. "We
feel good about at least one and perhaps two Democrats voting for him."
That assessment —
made on the eve of McConnell's hearing today before the Senate Judiciary
Committee — stood in marked contrast to the words of top Justice
Department official Viet Dinh, who met with reporters Tuesday to defend
McConnell against attacks from liberal interest groups. "Any controversy
surrounding this nomination is wholly manufactured by extreme interest
groups who are building a wall of mindless obstruction before President
Bush's judicial nominees," Dinh said, reading from a prepared statement.
"Not able to assassinate Professor McConnell's character, the extremists
pander to paranoia and fabricate controversy."
From those words,
one might have thought McConnell was facing a Clarence Thomas-style assault
from the left. But in fact McConnell has not come under anything
like that, and has not even been subjected to the kind of attack that
groups like People for the American Way, NARAL, and the Alliance for Justice
leveled against defeated Bush nominees Charles Pickering and Priscilla
Owen. So far, at least, the groups' relatively half-hearted campaign against
McConnell has failed to achieve the traction that the earlier campaigns
enjoyed.
Why do the opponents
of the president's judicial picks seem to be letting up this time? The
reason became apparent at the Justice Department news conference. Opposition
to the White House's judicial nominees usually comes from three places:
liberal interest groups, the liberal legal academic community, and liberal
Democrats on the Judiciary Committee. In the McConnell case, one of those
groups, the law professors, who in the past have been staunch opponents
of many Bush nominees, strongly supports McConnell.
In fact, three high-profile
liberal professors — the University of Chicago's Cass Sunstein, Harvard's
Elena Kagan, and the University of Texas's Douglas Laycock — joined
Dinh in speaking to reporters (Sunstein and Kagan by conference call).
All vouched for McConnell. "He is excellent and not an ideologue,"
said Sunstein. "He is not an ideologue; he will adhere to the law,"
said Kagan. "He's not an extremist or an ideologue,"
said Laycock. Justice officials also handed out a letter supporting McConnell
signed by 300 law professors.
What was perhaps
most impressive about the news conference was that none of the professors
worried much about McConnell's opposition to the Roe v. Wade
decision, which has so often been a key factor in judicial nomination
battles. McConnell authored a 1998 op-ed in the Wall Street Journal
entitled, "Roe v. Wade at 25: Still Illegitimate."
In 1994, he wrote in a Michigan Law Review article that "abortion
is an evil, all too frequently and casually employed for the destruction
of life." He has also endorsed a pro-life constitutional amendment.
Any one of those things might be enough to kill a nomination.
When asked why he
supports a man so opposed to Roe, Sunstein explained that McConnell's
views on abortion are just one part of "a complex record." McConnell's
views on a variety of legal issues, Sunstein said, were widely varied
— and sometimes surprising. "The people who say he is staunchly
pro-life are right," Sunstein said, adding that one might well oppose
McConnell, "if abortion is the only thing you care about." But
McConnell, Sunstein said again, is no ideologue. "If you're an ideologue,
it means you predictably follow a party line," Sunstein explained,
and a true conservative ideologue "thinks the Constitution overlaps
a lot with the Republican party platform of 1980." McConnell, on
the other hand, "is too unpredictable — he doesn't follow party
lines."
If Senate Democrats
adopt a similar line of reasoning, it would be a startling development
after the Owen battle. Owen was rejected because of her opinions in a
few cases involving the Texas state law that requires underage girls to
tell a parent before having an abortion. Such parental-notification cases
are on the fringes of the abortion debate — and notification laws
receive heavy support in opinion polls — yet Owen's opinions were
enough for every Democrat on the Judiciary Committee to vote against her.
Given that, there
would seem to be no logical, principled way a Democrat who voted against
Owen could vote in favor of McConnell, who has virtually declared war
on Roe v. Wade. But McConnell appears to be heading toward
confirmation (see "Will It Be Three?," NRO, Sept. 13), with
Democrats working hard to come up with a rationale for voting for him
after opposing Owen. Today's New York Times reports that Senate
Majority Leader Tom Daschle, during a meeting with staffers in the Times's
Washington bureau, "said last week that the Democrats' recent rejection
of two of Mr. Bush's appeals-court nominees, Priscilla Owen of Texas and
Charles W. Pickering of Mississippi, was not because of their conservative
ideology. Rather, Mr. Daschle said, there was evidence that both were
inclined to insert their personal views into their opinions." Daschle
implied that McConnell would not be accused of the same thing.
Look for committee
Democrats to cite that as their reason for supporting McConnell. But it's
almost certainly not the real reason. A much more likely explanation is
that Democrats will allow McConnell to survive because of the support
he has received from the powerful legal academic establishment. Some significant
part of that support seems personal — many of the professors know
and like McConnell — and it appears that those personal connections
trump any objections to his opinions on abortion.
Priscilla Owen, it
seems, just didn't know the right people.
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t's
looking good," says a Hill Republican when asked about the confirmation
chances of Michael McConnell, the University of Utah professor who has
been nominated for a place on the Tenth Circuit Court of Appeals. "We
feel good about at least one and perhaps two Democrats voting for him."
