The Case for Chief Justice Michael W. McConnell

The Supreme Court's 2004-2005 term will likely end sometime in the next three weeks or so. Most of you are well aware of what possibly (probably?) will happen shortly thereafter - Chief Justice William Rehnquist, member of the Court for 33 years, will step down and Bush will get to name a new Justice. He's got quite a few options. A good breakdown of the realistic options is available at SCOTUSblog here.

But there's no question that some choices would be better than others. I'm here to make the case for who I think would be the best from our point of view - current 10th Circuit Judge Michael McConnell.

Before I attempt to make the case, let me make clear that this diary is not meant as a paean to McConnell. If I could choose anyone for the Court, it would not be him. Quite the contrary. I would choose a solid liberal, probably someone in the mold of Ruth Bader Ginsburg (my favorite current Justice). But, unfortunately, we can't make that choice with Bush at the helm and a Republican majority in the Senate. So this is not an argument for who should be the next Chief Justice regardless of the circumstances.

So, given that understanding, and considering the current political circumstances, here are the reasons why we should be (relatively) relieved if McConnell becomes the next Chief Justice:

1) McConnell is not the extreme conservative that so many of Bush's other potential choices are. In fact, he has displayed himself to be more of a libertarian than a true "conservative".

For example, despite claims from some that he has a "radical church-state agenda", he has argued that government should take a "neutral" approach to religion, neither promoting nor disfavoring it. This position has led him to, for example, oppose state-sponsored school prayer like that struck down by Lee v. Weisman and Sante Fe Ind. School Dist. v. Doe. (his stance is unlike those of Thomas, Scalia, and Rehnquist, who all dissented in Weisman and Sante Fe).

McConnell has also shown his libertarian leanings by opposing the flag burning amendment and writing a dissent in a recent 10th Circuit case United States v. Abdendi , where he criticized the "brazen tactics" of law enforcement officers used against a suspect in a search-and-seizure case.

And he even clerked for progressive Justice William Brennan.

2) Further, McConnell is not an ideologue like, for example, recently-confirmed Janice Rogers Brown. His criticism of the right-wing activist decisions such as  Bush v. Gore point to McConnell not being another activist like Scalia. And as stated in this interesting article by law professor Jeffrey Rosen, McConnell has also been critical of the "Constitution in Exile" movement led by right-wing activists.

McConnell, in addition to being a brilliant legal scholar and eminently qualified for the Court, is recognized as open-minded by those who know him (including liberal scholars). He would be much more likely to weigh his colleagues' liberal and conservative legal arguments alike in his decision-making, unlike a close-minded ideologue (think Clarence Thomas). I believe he is someone who can be persuaded to change his initial position on an issue - which is not a pipe dream, I might add. Justice David Souter, for example, was a lifelong Republican who became far more liberal after (I would argue) exposure to his liberal colleagues' arguments. This is not to say that McConnell will suddenly become a liberal a la Souter. He has a long career of libertarian-conservativism. But I'll take an open-minded libertarian over a rigid right-wing ideologue every time.

His open-mindedness and lack of ideological rigidity is a big reason why a large group of ideologically diverse law professors, including prominent liberals like Akhil Amar and Cass Sunstein (my favorite constitutional scholar) endorsed McConnell's nomination to the 10th Circuit. (Sunstein also wrote an article in the Wall Street Journal three years ago endorsing McConnell for the 10th Circuit, containing many of the same points that I do here. I recommend checking it out).

3) Finally, one point about McConnell's personality - he is, by all accounts, a highly respectful and level-headed individual. He also, it would seem, does not have a burgeoning ego like so many others - he left his very prestigious professorship at the University of Chicago Law School to teach at the lower-profile S.J. Quinney College of Law at the University of Utah. I would agree that this by itself is not a strong argument for McConnell. Nevertheless, having a Justice of his temperament is far preferable to personality of the caustic, self-important, and often snide Justice Scalia.

Finally, an obvious major concern with many is McConnell's well-known opposition to Roe v. Wade. In fact, he made it quite clear - in the popular press, no less - what he thinks about Roe in a 1998 Wall Street Journal article entitled "Roe v. Wade at 25: Still Illegitimate" [for some reason, I can't find a link to this article; if you have one, let me know and I'll add it]. This is a big reason the People for the American Way and NARAL will undoubtedly oppose him, as they did when he was nominated for his 10th Circuit judgeship.

I sympathize with these concerns, but I think a couple points need to be made. First, McConnell would be replacing the only current member of the court to actually dissent in Roe -- so it's not exactly like he's shifting the balance in any way. Second, Bush simply will not nominate someone who supports Roe. I can't think of anything surer in politics today. So McConnell is no different on that issue than any other nominee. Finally, criticism of Roe v. Wade as a constitutional matter (rather than as a political matter) is really not that unusual among both conservative and liberal constitutional experts. Consider that even Justice Ginsburg, a long-time women's activist and abortion rights supporter, has criticized Roe in the past and even more recently as well.

We'll all hear a lot more about Mr. McConnell if and when Rehnquist steps down, and certainly MUCH more if he is Bush's pick. Perhaps some sordid skeleton will pop out of his closet, or he will suddenly become a fire-breathing Dobsonite. But I doubt it. For the reasons above, I would support a McConnell nomination to the Court.

And why a case for Chief Justice Michael W. McConnell? Because a likely second option would be far worse - Chief Justice Antonin Scalia.