Yet another group of law professors has decided to enter the political fray over President Bush's judicial nominations by sending a joint letter to the Senate Judiciary Committee. The letter strongly opposes the nomination of Michael McConnell to the Tenth Circuit Court of Appeals, and is apparently meant to counter an earlier letter from professors who support McConnell. McConnell himself has bemoaned the "extreme, partisan, hyperbolic, and vitriolic flavor of much [public] commentary by academics." This week's letter, sadly, serves only to prove McConnell's point.

Full Article

Yet another group of law professors has decided to enter the political fray over President Bush's judicial nominations by sending a joint letter to the Senate Judiciary Committee. The letter strongly opposes the nomination of Michael McConnell to the Tenth Circuit Court of Appeals, and is apparently meant to counter an earlier letter from professors who support McConnell. McConnell himself has bemoaned the "extreme, partisan, hyperbolic, and vitriolic flavor of much [public] commentary by academics." This week's letter, sadly, serves only to prove McConnell's point.

What really seems to enrage the letter-signers is McConnell's 1997 article from First Things magazine, in which (according to the letter) he "praises a federal judge for disregarding the Freedom of Access to Clinic Entrances law by acquitting two anti-abortion protestors who had willfully violated a court order." This article "raises serious concerns about [McConnell's] ability to set aside his personal views on the bench."

What the letter leaves out is crucial. McConnell did not give unadulterated praise to the judge at issue; he noted that "[a]s a matter of law [the judge] was probably wrong. . . . And there is no precedent in our law for a judge to exercise the prerogative of jury nullification." The letter also ignores McConnell's observation that if the judge had strictly followed "the law," he would have had to send a priest and a bishop to jail simply for peacefully praying the rosary outside an abortion clinic. (McConnell points out the rather different view that liberal academics take towards the peaceful but illegal protests of Martin Luther King).

Finally, McConnell highlights the truly extraordinary imbalance that the law had created: "It is utterly incredible that [the protestors] might be sent to prison for six months for praying in a driveway. If they had been in that driveway for some other reason (a labor dispute, for example), or if they had committed the same sort of protest at another kind of business (a fur store, for example, or a CIA recruiting office), they would have gotten off with a slap on the wrist, had they been punished at all." McConnell's ringing defense of free speech here makes it simply astounding that the letter accuses McConnell of a "profound disregard for fundamental
rights and liberties."

At times, the letter positively misrepresents McConnell's views. It charges that McConnell "disagreed with the results reached in Lemon v. Kurtzman, in which the Supreme Court held that direct funding of parochial schools violates the Establishment Clause." The letter cites one article - but nowhere in that article does McConnell argue that there should be direct funding of religious education. Indeed, McConnell actually argues that indirect aid - i.e., aid to parents rather than to schools - is much to be preferred. And the Supreme Court just this year agreed with McConnell in Zelman v. Simmons-Harris, the school choice case. McConnell beat the Court to the correct outcome by more than a decade - and for this, he is condemned.

On some points, the letter does not even attempt to explain why it disagrees with McConnell, or why anyone else should. For example, the letter states baldly that McConnell has "praised academic attempts to resurrect federalism doctrines." Well, what of it? Are we simply supposed to assume that any support of federalism is wrong? Has federalism really become so anathema that McConnell's belief in it is enough to blackball him from a federal judgeship?

The letter also takes McConnell to task for an article disagreeing with the Supreme Court's decision of Reynolds v. Sims, in which the Court laid down the famous "one man, one vote" principle that now prohibits the slightest disparity in the size of legislative districts. Nowhere does the letter mention McConnell's sophisticated argument that this judicial innovation has led to "protection for incumbents, a tendency toward homogeneous - and hence more partisan - districts, racial and partisan gerrymandering, and ultimately, a widespread sense that elections do not matter."

In any event, some of these professors should have thought twice before condemning McConnell's argument that the Equal Protection Clause does not apply to voting rights. In the Supreme Court decision that is hated by more legal academics than any other decision in recent memory (Bush v. Gore), the Court did precisely what it had done in Reynolds v. Sims: extend the Equal Protection Clause's protection for voting rights. McConnell's article on Reynolds, therefore, could well be taken to demonstrate why the Supreme Court's decision in Bush v. Gore was wrong on originalist terms.

Indeed, McConnell himself, in an all-too-rare display of scholarly integrity, criticized Bush v. Gore for leaving "Bush as president not so much by the will of the electorate, but by default." One would think that these left-leaning academics would praise McConnell both for his argument and for his principled, consistent stand.

In short, what the letter boils down to is this: A person who has publicly registered disagreement with one or more Supreme Court decisions is unfit to serve as a federal judge. This principle, applied equally, would bar all intelligent people from serving as federal judges - after all, no intelligent person could possibly agree with every Court decision - unless they had spent their entire lives muzzling themselves from uttering a word on any matter of public importance. This letter should rightfully be ignored. With the impending turnover in Senate control, I rather think it will be.

Stuart Buck is a lawyer. He publishes The Buck Stops Here weblog and studied with Michael McConnell when he was a guest professor at Harvard Law School in 1999.

McConnell's Article

Breaking the Law, Bending the Law

Michael W. McConnell

Federal Judge John E. Sprizzo will never again be promoted or advanced, for he has committed an unpardonable act of courage in defense of conscience. On January 13, 1997, in the U.S. District Court in Manhattan, Judge Sprizzo acquitted an elderly bishop and a young priest of the crime of "quietly praying with rosary beads" in the driveway of an abortion clinic, in violation of a court injunction and the Federal Access to Clinic Entrances Act.

His reasons? That these two offenders did not act with "bad purpose" and, even if they did, he would exercise a judicial version of jury nullification. Because their act was "purely passive"—meaning nonviolent—and "so minimally obstructive," it justified "the exercise of the prerogative of leniency." Because the parties waived a jury trial, the judge’s decision is equivalent to a jury verdict of acquittal, and cannot be appealed.

As a matter of law Judge Sprizzo was probably wrong. There can be little doubt that the two defendants, Bishop George E. Lynch and Brother Christopher Moscinski, violated the injunction and the Clinic Access law "willfully." They knew exactly what they were doing and why they were doing it. And there is no precedent in our law for a judge to exercise the prerogative of jury nullification. Juries can acquit for any reason or no reason at all, and can use that power to acquit guilty parties out of sympathy for the defendant or opposition to the law. A judge, by contrast, must act within the bounds of the law by which he holds office. Every decision a judge makes must be grounded in law.

This case has the unusual twist that Judge Sprizzo himself had issued the underlying injunction. Usually that makes a judge especially inclined to punish infractions, which are not just "contempt of court" but contempt of his court. Lawyers for the defendants argued that a judge is entitled to overlook violations of his own injunction. Maybe that is right. But the argument seems to suggest that contempt sanctions are imposed for the purpose of vindicating the personal authority of the judge. To my mind, that contradicts the very idea of injunctions as law. If the underlying injunction is lawful, the judge’s duty to enforce it should not be affected by the fact that he is the author.

If this is so, Judge Sprizzo should not have acquitted the defendants. If he wished to exercise the prerogative of leniency (as, under the circumstances, he should), he should have entered a judgment of conviction and imposed a suspended sentence.

Yet one cannot help admiring the judge’s act. It will mark Judge Sprizzo for the rest of his career. He must have known that he would be excoriated by the newspapers and treated as a pariah by the "moderate" voices of his community for giving moral succor to "anti-abortion extremists."

After reading Judge Sprizzo’s opinion, I was driven to reread Dr. Martin Luther King, Jr.’s great Letter from the Birmingham Jail, addressed to the "moderate" clergy of his day. Dr. King, like Bishop Lynch and Brother Moscinski, had been enjoined by court order not to engage in a demonstration that, according to the authorities, would impede members of the public from access to lawful businesses and activities. King—like Lynch and Moscinski—believed that it was wrong to prevent citizens from engaging in nonviolent direct action to protest injustice, and King—like Lynch and Moscinski—thought that the underlying law enforced by the injunction was unconstitutional.

King was prosecuted by the state of Alabama and convicted for violating the injunction. He was sentenced to five days in jail. The United States government, prosecuting Lynch and Moscinski, sought a punishment of up to six months’ imprisonment. Not even Bull Connor had asked for that. But in Lynch and Moscinski’s case, the judge refused to be a party to the effort to silence the protest. "Were a person to have violated a court order directing the return of a runaway slave when Dred Scott was the law," the judge asked, "would a genuinely held belief that a slave was a human person and not an article of property be a matter the court could not consider in deciding whether that person was guilty of a criminal contempt charge?"

Perhaps most strikingly parallel was King’s conviction—shared by Lynch and Moscinski—that there is a profound difference between peaceful, nonviolent protest and violence. In King’s Letter, he contrasted his philosophy of nonviolence with the "force . . . of bitterness and hatred" of certain "black nationalist groups," which "comes perilously close to advocating violence."

Of course, King’s opponents did not see it that way. The lawyers for segregation who sought and obtained an injunction against King’s Birmingham protests cited the danger of "mob violence" and the violation of "numerous ordinances and statutes of the city of Birmingham." It was they who blurred the distinction between violent and nonviolent protest, using the possibility of the former as an excuse for blocking the latter.

Nor do Lynch and Moscinski’s opponents see it that way. "It’s an off-the-wall, scary decision," an abortion-rights lawyer told the New York Times. "It’s so close to the Atlanta bombings and practically on the anniversary of the Brookline attacks," she said. "People will take it to the next level and then the next and they end up getting violent," another abortion-rights advocate said.

If quietly praying the rosary in the driveway of an abortion clinic is "close" to bombings, then Dr. King’s nonviolent march was no less close to "mob violence."

The legislative history of the Federal Access to Clinic Entrances Act is filled with lurid examples of abortion-clinic violence, but there was no need for legislation against violence. Violence was already illegal. The innovation of the Clinic Access statute was to impose extreme sanctions—half a year in prison for a single offense—for peaceful, nonviolent acts of protest, without proof of injury to anyone, if they have the effect of "obstructing" access to the clinic. That can mean quietly praying on the steps.

The New York Times article on Judge Sprizzo’s decision stated that the Clinic Access statute is "credited with the significant drop in violence at clinics." It does not point out that the statute is also credited with a significant drop in lawful, nonviolent protests. The penalties are so harsh, the terms so vague, and the coverage so sweeping that the statute frightens off lawful as well as unlawful protest. That presumably was its unstated purpose.

Dr. King reportedly agonized over the decision to violate the Birmingham injunction. He was committed to the rule of law (after all, he was demanding that southern officials comply with court injunctions mandating desegregation) and he did not wish the civil rights movement to be tarred with the brush of illegality. But in two previous protests, compliance with injunctions had doomed the movement to failure. No doubt, newspapers credited those injunctions with a significant drop in violence, but they also brought about a significant drop in effective protest.

In the most famous section of the Letter, Dr. King distinguished between "two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to disobey unjust laws." He went on to explain: "An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law."

Perhaps that is what Judge Sprizzo meant when he held that Lynch and Moscinski lacked the "bad purpose" necessary to justify conviction for criminal contempt. In a sense, they—like King—were expressing the "highest respect" for the law: they assumed that the law is capable of reform. But King specified that the conscientious offender must be willing to accept the penalty. Acceptance of the penalty of imprisonment, King said, will "arouse the conscience of the community over its injustice."

It seems unlikely that imprisonment of Bishop Lynch and Brother Moscinski would arouse the conscience of our community over roughly one and a half million abortions each year. Unlike King, Lynch and Moscinski face the hostility of most newspapers and elite institutions, and their cause is regarded by the Supreme Court of the United States as an affront to its authority. They would probably languish, unnoticed, in prison.

But then, in 1963 Dr. King and his cause did not enjoy the support they have received in hindsight. While King was in the Birmingham jail, Time magazine and the New York Times editorialized against the demonstrations, and the Supreme Court’s eventual decision upholding his imprisonment is told entirely from the point of view of the Birmingham authorities. If it had not been for Bull Connor’s decision to turn water cannons and dogs loose on demonstrating children, it is possible that King’s imprisonment, too, would have gone unnoticed.

Judge Sprizzo spared Lynch and Moscinski the indignity of jail. Unlike King, Lynch and Moscinski will not have the chance to write a Letter from the Manhattan Jail, calling their fellow clergy to task for their silence, and worse, on the practice of abortion. I am not sure the judge’s acquittal was wise, and I am quite sure it was not lawful. It cannot be true that individuals may violate court orders with impunity whenever they sincerely believe those orders are morally wrong. And it would be utterly unacceptable to allow such violations only, but whenever, the judge happened to agree with the violator. Over a decade ago, a federal judge released two "peace" protestors who broke into a Honeywell defense plant, smashed the computer system, and poured blood over the wreckage of the computer. The judge called the vandals "friends of the people" and the victims "warmongers." Those who think that decision was wrong must also have their doubts about Judge Sprizzo’s ruling.

But there is one big difference between the cases. The perpetrators of the Honeywell break-in were prosecuted for their acts, not for their motives. The punishment sought by the prosecutor was no different from what it would have been if they had vandalized the Honeywell computers out of malicious mischief, or committed a similar act for different motives at a different kind of facility.

It is utterly incredible that Lynch and Moscinski might be sent to prison for six months for praying in a driveway. If they had been in that driveway for some other reason (a labor dispute, for example), or if they had committed the same sort of protest at another kind of business (a fur store, for example, or a CIA recruiting office), they would have gotten off with a slap on the wrist, had they been punished at all.

The Federal Access to Clinic Entrances Act singles out a particular kind of protest for penalties unheard-of in the history of American political protest movements. Lynch and Moscinski were not tried for the actual harm they caused. As Judge Sprizzo noted, the "obstructive" effect of their quiet protest was "minimal." The prosecutor who sought to imprison Lynch and Moscinski was not asking for impartial justice, but for repression of political dissent.

Lynch and Moscinski should have been punished for the acts they committed. They should not have been spared because their cause was just. But they also should not be punished more severely because their cause is unpopular. They should have been charged with trespassing on private property, and given the same punishment that is meted out to others who commit that offense in that jurisdiction with comparable damage. I’d guess a fifty-dollar fine would be about right.

Michael W. McConnell is Presidential Professor in the College of Law at the University of Utah.

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