Strengthening Constitutional Self-Government

No Left Turns

McConnell and SCOTUS

Scott Johnson at Powerline offers an extended defense of Judge Michael McConnell against this vicious hit from the right. Everything I know about McConnell (whom I have known for 30 years) suggests that Johnson is right and the author of the hit piece is wrong and misguided.

Update: There’s more here and here. As bonus the latter includes Ken Masugi’s choice comments on this revealingly nasty piece by Jonathan Chait.

Update #2: Andrew Hyman, with whom I engaged in a long colloquy in the comments section, has posted the relevant passages from McConnell’s Appeals Court confirmation hearings here. Read them for yourself and then read the comments. Hyman persists in placing the most damaging possible construction on McConnell’s testimony, which is rather carefully phrased. And note that he persists in a post made after he said (comment # 10, at 7:24 p.m. Sunday evening) that he had received "some pretty solid assurances about Judge McConnell from other people I’ve communicated with, so I don’t expect to be opposing his nomination." I can’t understand how he thinks offering his construction of the evidence doesn’t amount to opposing a McConnell nomination. Did something happen between 7:24 p.m. and 11:11 p.m. Sunday evening? Is this confusion, a genuine change of mind or heart, or something less savory?

As for the polygamy issue, I’ll say only this: It does not amount to a constitutional right to legally-recognized and supported polygamy (analogous to the constitutional right claimed by proponents of gay marriage), but merely the right (at most) to be left alone on religious freedom grounds. A defender of an anti-polygamy law would have to--and perhaps could--offer a "compelling state interest" rationale for sanctioning this behavior, but, as McConnell notes, we’ve acquiesced in so much private "immorality," at least to the extent of leaving it alone, that it’s hard to explain legal proscription of polygamy as anything other than the product of an animus against a particular religion. But again (let me repeat this for those prone to misconstrue), leaving polygamists alone is not the same as approving them or extending the legal privileges and immunities of "one man, one woman" marriage to them. I should also say, so that I’m clear, that I am not speaking for McConnell here, but offering a speculative defense, in my own name, of what I take to be McConnell’s understanding of religious freedom (especially as articulated in his 1986 article "Accommodation of Religion").

Discussions - 12 Comments

Hi. I’d be interested in your thoughts about a rebuttal I’ve written to Scott Johnson’s piece. My rebuttal is at http://www.confirmthem.com/?p=825

Thanks.

Three immediate thoughts, with more to follow when I have time to work them out, either in a long post here or in an oped for the Ashbrook site.

First, Andy Schlafly totally mischaracterizes the Powerline site as a "libertarian hangout," and similarly mischaracterizes McConnell as a libertarian because of his defense of religious liberty. Religious conservatives are among the biggest defenders of religious liberty, and of the accommodation of religion in the public sphere. McConnell fits that description nicely.

Second, I think that there is room to disagree about the relationship between the First Amendment guarantee of religious freedom and the reach of otherwise generally applicable criminal laws. That religion always must bow before the state (apparently your position) is defensible on Lockian (which is to say not necessarily orthodox Christian, let alone merely religious) grounds. But it is also possible to affirm a more robust conception of religious freedom (including religious exemptions from otherwise generally applicable laws) and still be a conservative.

Third, McConnell’s testimony regarding Roe is at most indicative of how he would have to rule as an appeals court judge, not of his considered view of the merits of the decision and the reasoning underlying it. I don’t think that’s his final word on the subject, as it indicates more about his conception of the role of appeals court judges than it does anything else.

But, as I said, I’ll take the time to put together a much longer brief on behalf of McConnell.

If McConnell is so soft on Roe, why does the pro-choice lobby hate him so much? Go here and here, for example.

Hi Joe. In response to your comment #3, Senator Kennedy once thundered against a nominee whose views of Roe v. Wade were "alarming" to Kennedy. The nominee’s name was David Souter. See this link, http://bench.nationalreview.com/archives/064337.asp

In response to your comment #2, please understand that I in no way subscribe to the notion that Power Line is a "libertarian" hangout. Also, my position is NOT that religion always must bow before the state. If a statute targets religion then it is unconstitutional; that’s current Supreme Court doctrine, and I agree with it.

Anyway, thanks for your remarks thus far, and I’ll look forward to reading anything further you write on this subject.

Andrew

The comparison of Michael McConnell to David Souter defies belief. Unlike Souter, McConnell has an immense paper trail, much of it written under circumstances (for academic lawyers) that would, if anything, push him in a "liberal" direction. There is, it seems to me, little evidence that he was a "conformist." While I’m not prepared to say that his views haven’t changed at all since I first encountered him in 1975, he was quite unfashionably conservative then (whereas I was quite fashionably liberal).

Yes, he disagrees with Scalia on Employment Division v. Smith, but it’s not self-evident to me that that case was rightly decided. I should note, by the way, that the Religious Freedom Restoration Act, Congress’ response to Employment Division, passed with a total of only three negative votes in both houses. All sorts of good conservatives supported it. To make approval of Scalia’s opinion in Employment Division a litmus test of conservatism on church/state matters is to read an awful lot of good people out of the conservative movement, like, for example, Robert Bork, who opined here that "Smith seems to me a highly dubious constitutional ruling, but while it stands it is the law of the Constitution."

On abortion, consider that McConnell signed this statement, with stalwarts such as Robert P. George, Gary Bauer, Chuck Colson, James Dobson, Richard Land, Ralph Reed, Marvin Olasky, and George Weigel. But, oops, Jim Wallis signed it too, so it must be tainted. Are they all untrustworthy liberals?

My point about Souter was simply that pro-abortion forces blasted him when he was nominated. Therefore, the fact that they’re also blasting McConnell doesn’t mean that McConnell is on one side or the other.

Regarding Employment Division v. Smith, even if Bork had crossed the threshold from skepticism to opposition, I very much doubt that Bork would support using the Free Exercise Clause to overturn the Reynolds decision (regarding polygamy) as Judge McConnell has advocated, or would support using the Free Exercise Clause to confer a right to abortion in certain cases, as Judge McConnell has advocated.

Of course, like our whole messed up country, I am concerned about the abortion issue. When I look at Judge McConnell’s hearing testimony, I see him saying that Roe v. Wade is as settled as anything can be in constitutional law (including Marbury v. Madison), and yet in sharp contrast he advocated overturning Reynolds. Well, why shouldn’t I view that dichotomy as significant?

Joe, you know much more about Judge McConnell and his record than I do, so I very much appreciate this conversation. Can you tell me whether McConnell has said anything about the constitutionality or the unconstitutionality of the whole notion of "substantive due process"? As you know, this is the misbegotten doctrine that underlies the Court’s most controversial jurisprudence, including Roe v. Wade. I would really like to see the Court finally come to grips with its misinterpretation of the Due Process Clause. Do you think McConnell would help with that if he becomes a Supreme Court justice?

Andrew,

The issues you raise were quite thoroughly vetted here, which makes it clear to me that you are a persistent interlocutor who concedes little to the reasonable points made by others. Your basic beef is with McConnell’s interpretation of the Free Exercise Clause, where he favors the compelling state interest test (which, in the aftermath of Employment Division v. Smith, would have been restored by RFRA, whose passage he supported--I recall a statement he co-authored in First Things, but can’t find it in the on-line archives). Religion, in other words, must give way to, and only to, a compelling state interest. The fact that the law is neutral and generally applicable isn’t good enough by itself to establish its constitutionality. It strikes me that protecting the right to life can be conceived as a compelling state interest.

The problem with the polygamy case is a little more complicated, since while I think that providing a healthy legal monogamous framework for child-rearing could be conceived as a compelling state interest (I’d vote for it, were I in the legislature), legislatures have acquiesced in all sorts of child-rearing arrangements other than that. In other words, legislative behavior makes the compelling state interest argument harder to make. One could defend the law on the basis of stare decisis, but what if one thought the decisions on which one would have to rest are flawed? Should one go ahead anyway, relying simply upon a settled tradition? (Be careful, the same logic could be applied in a case challenging Roe v. Wade.)

Joe, I certainly don’t want to bother you if you’d prefer to defer to the arguments already made here.

The statute at issue in the Reynolds case prohibited all polygamy, including marriages that are formalized by religious organizations, as well as marriages that are merely "de facto" or "common law" marriages.

If Judge McConnell believes that such statutes are being enforced in a discriminatory manner ("as applied"), that is one thing. But to strike down all such statutes as unconstitutional is quite another.

Anyway, I won’t persist with this interlocution if you think I’m being unreasonable. You can have the last word. Andrew

I find it unfortunate and a little disheartening that a contributor to a site as influential (or at least prominent) as ConfirmThem would spend so much effort trying to nitpick to death one of the most distinguished (if not the most distinguished) conservative legal academic of his generation, especially on the basis of such flimsy and speculative evidence. Not only do I think your worries are misplaced, but I’m not convinced that you’ve done all the research you need to do in order to arrive at a balanced judgment of McConnell’s credentials and potential.

You might have enough to persuade those who don’t look closely, but I don’t think you’ve assembled the case necessary to sway the kind of well-informed folks who write for blogs like Southern Appeal and Powerline.

This suggests to me that you can’t help inform the decision-makers, but you can make it difficult for them to carry out their decisions. Perhaps this is all you want, but then, in your own way, you’re just as obstructionist and unconstructive as are the liberals who want to filibuster the President’s nominees.

Joe,

I certainly did not expect your last word to be anything like this: "you’re just as obstructionist and unconstructive as are the liberals who want to filibuster the President’s nominees." So, I feel compelled to respond in my own defense. Usually when someone has the last word, that last word is a bit more gracious.

Please make no mistake. I am not trying to "nitpick" about Judge McConnell. You know as well as I do that it is often very difficult to take the full measure of a SCOTUS candidate. Presidents have often appointed nominees who turned out to be very much unlike what they expected. That is why I have looked closely at Judge McConnell’s record, for indications of what kind of Supreme Court justice he would be.

In response to my concerns that have arisen from reading his hearing transcript, from reading his published articles, and from discussing Judge McConnell with people who know him and his record, you have simply said that my concerns are "flimsy" without addressing them. You offered no rationale for why Judge McConnell would state at his hearing that Reynolds was wrongly decided but that Roe is as settled as any other constitutional decision of the Supreme Court. I know of no other person nominated by President Bush who has given such a glowing characterization of Roe v. Wade under oath.

Moreover, if Reynolds had been decided differently, then polygamy would have been legal on federal territory, and our society today might well have a far different structure. I don’t like social engineers on the Supreme Court who insist that they know better than the people’s representatives.

I have repeatedly said that I wouldn’t necessarily oppose Judge McConnell if he is nominated. I am acutely aware that my impressions about him may be incorrect. That is why I thought maybe you could shed some light, instead of just accusing me of being an ignorant obstructionist.

It’s a good thing to discuss a potential nominee’s record, to understand what the GOP would be getting if he is nominated, and to prepare for criticisms from the Democratic side.

I assume from your silence in response to my question about substantive due process that you don’t know Judge McConnell’s stance. I had hoped that you might be able to assist me in learning more about this nominee.

In any event, I’ve recently gotten some pretty solid assurances about Judge McConnell from other people I’ve communicated with, so I don’t expect to be opposing his nomination. But I do think my concerns are valid, and I don’t appreciate being compared to filibustering Democrats.

Sincerely

Andrew Hyman

Andrew,

My concerns about your stance stemmed from the fact that you didn’t seem either to have learned anything or to have been prompted to do further research since your exchange with the folks at Southern Appeal, where both Steve Dillard and Will Baude made some excellent points. I would have thought that you’d had plenty of time to do a little more reading, thinking, and consulting before you came back with essentially the same lines of argument here.

As for anything else I have to say, I’ve got a stack of articles by and about McConnell to read or re-read before I write another word on this subject. I recommend that you do the same, else you will be in a position only to harm and not to help the cause to which you profess to be devoted.

I propose not to hold off until you earn enough amount of money to buy different goods! You can just get the credit loans or credit loan and feel yourself comfortable

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