Posted on 09/13/2002 9:53:49 AM PDT by Tumbleweed_Connection
Just one week after Democrats on the Senate Judiciary Committee killed the federal-appeals-court nomination of Priscilla Owen, Republicans are bracing for a fight over another so-called "controversial" White House judicial choice.
This time the candidate is Michael McConnell, a University of Utah law professor selected for a place on the Tenth Circuit Court of Appeals. McConnell was one of the president's first nominees, chosen on May 9, 2001. Democrats failed to act on the nomination for more than 15 months until this week, when Judiciary Committee chairman Patrick Leahy abruptly scheduled McConnell's hearing for next Wednesday.
At the hearing and in the political maneuvering that will follow, Republicans will be under great pressure not to let another of the president's high-profile judicial nominations go down. But in the end, majority Democrats may find themselves under even more pressure, trapped by the precedent they set for themselves in the Owen vote.
The problem is abortion. Leahy and his colleagues killed the Owen nomination, in large part, because of her opinions in a handful of cases involving a Texas law that requires underage girls to notify one parent before having an abortion. That was, at best, a side skirmish in the great battle over abortion, and Owen had never made any sweeping public statements condemning Roe v. Wade or the legal reasoning that produced it.
With McConnell, however, Democrats face a nominee who has boldly attacked the very foundation of Roe. In a January 1998 op-ed piece in the Wall Street Journal entitled "Roe v. Wade at 25: Still Illegitimate," McConnell called the reasoning behind Roe "an embarrassment to those who take constitutional law seriously." The Supreme Court, he wrote, "brought great discredit on itself by overturning state laws regulating abortion without any persuasive basis in constitutional text or logic. And to make matters worse, it committed these grave legal errors in the service of an extreme vision of abortion rights that the vast majority of Americans rightly consider unjust and immoral."
Needless to say, those are fighting words to many Democrats on the committee and to the liberal interest groups that support them. Given those statements, how can a Democrat who voted against Owen over a minor issue involving abortion — and that means every Democrat on the Judiciary Committee — turn around and vote in favor of McConnell? It seems no exaggeration to say that under the precedent they set for themselves in the Owen case, Democrats have no choice but to kill McConnell, too.
And yet, that might not happen. At the moment it is not clear that McConnell's opponents are as organized and determined to defeat his nomination as they were in fight to derail Owen. The National Abortion and Reproductive Rights Action League has called McConnell "an avowed anti-choice activist" whose "dangerous" views represent "a threat to reproductive freedom and choice and to the right to privacy," but that is largely boilerplate rhetoric. So far, no other members of the usual coalition of liberal special-interest groups have stepped up to attack McConnell, certainly not with the aggressiveness they displayed against Owen.
Democratic senators on the committee have been largely quiet, too. Perhaps they realize the trap they have laid for themselves. If they are consistent and vote down McConnell, they risk overplaying their hand by killing two of the president's best nominees in quick succession (and that is after killing another, Charles Pickering, last March). But if they approve McConnell, their actions will appear unprincipled and capricious.
At the moment, the latter seems most likely. "The feeling is they're not going to pounce on him after voting down Owen, that they would make a mistake if they went after a trifecta," says one GOP insider. McConnell, the insider explains, would not only be the third victim of committee Democrats, but the third politically connected victim. Pickering, the defeated candidate for a place on the Fifth Circuit Court of Appeals, was close to Senate Minority Leader Trent Lott. Owen, a Texas supreme-court judge, was closely associated with the president. McConnell, the Utah professor, is an obvious favorite of Utah Republican Orrin Hatch, the ranking Republican on the committee.
Another factor discouraging any Democratic inclination to kill the McConnell nomination is the strong support for him among some influential liberal academics. Both Harvard law professor Laurence Tribe and University of Chicago professor Cass Sunstein — liberals who have urged the committee to reject conservative Republican nominees — have written letters to Leahy on McConnell's behalf.
Calling McConnell "genuinely judicious" and "one of the best legal minds I have ever encountered," Sunstein wrote that, "On issues ranging from free speech to affirmative action to sex equality to abortion, he is genuinely willing to think, and to go where the best arguments take him." Then, in words that will surely echo in future nomination fights, Sunstein defended McConnell's position on abortion:
Of course the question of Roe v. Wade looms in the background. I believe that McConnell thinks that the decision was wrong when decided. But I know that he would faithfully follow the law as it now stands. Certainly for a court of appeals nomination, it would be extremely peculiar to say that a belief in the initial correctness of Roe v. Wade is a precondition for confirmation. Many lawyers, on the left as well as the right, question Roe v. Wade. Open-minded, nonideological nominees should not be rejected for that reason.
For his part, Tribe wrote that McConnell "is among the nation's most distinguished constitutional scholars and a fine teacher and appellate advocate." As a human being, Tribe wrote, McConnell "is exemplary, exhibiting openness to opposing views and a gentleness with others that commend him as someone likely to display an ideal judicial temperament." Tribe concluded that McConnell deserves to be confirmed, "assuming that President Bush comes forward with a group of circuit court nominees that is sufficiently balanced ideologically and otherwise."
Even with Tribe's caveat, those are strong words from two icons of the liberal legal establishment. And, of course, McConnell has earned a unanimously "well qualified" rating from the American Bar Association, which is the group's highest rating.
But Owen was unanimously well qualified, too. If Democrats approve McConnell, it might well appear that he succeeded where Owen failed because he is acceptable to the liberal old boys' club that commands so much respect in the Democratic establishment. Sure, McConnell has written that Roe v. Wade is illegitimate, they might reason, but Cass and Larry say he's okay. And we can't kill them all. So let's arrange for one or two "yes" votes on our side, send McConnell on to the Senate floor, and move on.
So in the end, Democrats will, perhaps, avoid the trifecta. And Republicans in the White House and on Capitol Hill will be happy with a win. But there is a very real sense in which an approval of McConnell would be as much an example of raw and ugly politics as was the rejection of Owen.
There is no penalty paid by Democrats for stuffing Bush judicial nominees. They will do whatever they please, and the Administration does NOTHING.
If Leahy wants it to be three, so it is. Nobody's got the cajones to do a thing about it.
Perhaps W should send up a nominee from South Dakota, and see haw far it gets.
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