Posted on 09/18/2002 8:52:36 AM PDT by gubamyster
September 18, 2002 9:00 a.m.
After savaging a White House nominee, Democrats appear ready to go easy on the next one
It'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.
This one wasn't going down without a serious fight.
From the US DOJ Office of Legal Policy:
Dear Senator Hatch:
We enthusiastically support the nomination of Michael W. McConnell to be a judge of the United States Court of Appeals for the Tenth Circuit.
McConnell is one of America's most distinguished constitutional law scholars and one of its most distinguished lawyers. He has published more than fifty scholarly articles in the nation's leading law reviews and has argued eleven cases before the United States Supreme Court. He is currently Presidential Professor at the University of Utah College of Law and was formerly a professor for twelve years at the University of Chicago Law School. He was a law clerk to Judge J. Skelly Wright of the United States Court of Appeals for the D.C. Circuit and to Justice William J. Brennan, Jr. of the United States Supreme Court. He served as Assistant General Counsel of the Office of Management and Budget and as Assistant Solicitor General.
McConnell's scholarly work has been path-breaking and influential. It also has been characterized by care, thoroughness, and fairness to opposing viewpoints. Both in person and in his writings, McConnell exhibits respect, gentleness, concern, rigor, integrity, a willingness to listen and to consider, and an abiding commitment to fairness and the rule of law. He provides a model of the wisdom, intelligence, temperament, craftsmanship, and personal qualities that can make a judge outstanding.
Many of the signers of this letter are Democrats who did not vote for the President who nominated Professor McConnell. Some of us have disagreed with McConnell on constitutional issues and undoubtedly will disagree with him again. All of us, however, hope that the Senate will confirm Professor McConnell without greater delay than is necessary to fulfill its important Constitutional responsibilities. In our view, Michael McConnell is a nominee of exceptional merit whose confirmation warrants bipartisan support.
We list our institutional affiliations for purposes of identification only.
Sincerely yours,
Richard I. Aaron
Professor
University of Utah College of Law
Khaled Abou El Fadl
Acting Professor
University of California at Los Angeles School of Law
Robert Adler
Professor
University of Utah College of Law
Peter A. Alces
Rita Ann Rollins Professor
William and Mary Law School
Lawrence A. Alexander
Warren Distinguished Professor
University of San Diego School of Law
Roger C. Alford
Professor
Pepperdine University School of Law
Albert W. Alschuler
Wilson-Dickinson Professor
University of Chicago Law School
Ann Althouse
Robert W. and Irma M. Arthur-Bascom Professor
University of Wisconsin Law School
Helen M. Alvare
Associate Professor
The Catholic University of America School of Law
Akhil Amar
Southmayd Professor
Yale Law School
*************************************
Wow, what a letter of support. You can go here to see the whole list of signees.
I think they may have looked at Bush approval numbers and the election polls.
Let us say that the Repubilcans win the Senate in november. Bush will then fill all the seats the Democrats have failed to confirm.. He can fill them with even more conservative appointments. Bush at that point will not be under any mandate to nominate moderates. He can and will go with the strongest conservatives he can get to take the bench. Where does that leave the Democrats. Up the creek without a paddle is the correct answer. If the Democrats had negotitated in good faith they could have had "MODERATE" judges in those positions. But if the Pubies win the senate, they get to confirm hard conservatives to those posts. Can you say the end result may very well be very counter productive for Democrats? I thought you could!!!
Let us say the Democrats win in November and the Democrats continue to hold up nominees until 2004. What if Bush just stopped nominating people and waited until 2005. Bush could just say they won't confirm them so I am not going to waste my time nominating anyone until I have a Republican senate. Say in 2004 Bush got a Republican senate. Then 4 years worth of very very conservative judges could be rammed through the senate in a day or two. What could the Democrats cry?/// Bush is playing politics? What would Bush care he couldn't run for relection in 2008 anyway.
There is a good reason that both parties in the past bowed to presidential wishes for judges. For if others had taken Leahy's path, the stalling party would have ended up with a lot more judges they hate.
It could be that someone who has looked at the polls has told Leahy that what he is doing is feeding right into Bush's plans for a very conservative judiciary.
All it takes is to win a Republican Senate now, in 2004 or 2006 and Leahy's actions are backfire city.
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