Impaired Faculties?

Writing in late September, the National Review's Byron York took a telling swipe at Democrats on the Senate Judiciary Committee. Contrasting their relatively cozy treatment of conservative University of Utah law professor Michael McConnell, whom President Bush has nominated for the 10th U.S. Circuit Court of Appeals, with their rejection of Texas Supreme Court Judge Priscilla Owen, York gleefully noted that McConnell is, if anything, more stridently anti-abortion. "Owen, it seems," York concluded, "just didn't know the right people."

The right people in this case would be a raft of leading liberal law professors, including Cass Sunstein of the University of Chicago, Akhil Reed Amar of Yale Law School, Elena Kagan of Harvard Law School, and Sanford Levinson and Douglas Laycock of the University of Texas School of Law. Many know McConnell from his years at the University of Chicago, academic conferences or elsewhere. Sunstein, a Chicago connection, defended McConnell on The Wall Street Journal's editorial page; Laycock, a former professor of McConnell's, did so in a New York Times op-ed. Albert Alschuler, another University of Chicago law professor and former McConnell colleague, sounded off in McConnell's favor in The Chicago Tribune; he also teamed up with former McConnell student Michael Heise, now at Case Western Reserve University, to circulate a support letter from law professors. It garnered some 300 signatures and has since been trumpeted by the Department of Justice and widely cited in the media.

In the letter, the professors observed that "some of us have disagreed with McConnell on constitutional issues" but extolled his "abiding commitment to fairness and the rule of law." Indeed, by all accounts McConnell is a brilliant and influential scholar -- his work on the church-state issue has shifted current judicial and academic thinking on when public funds can go to religious institutions -- as well as a model teacher and human being. Liberal legal academics certainly are backing him in a way that they never backed, say, Robert Bork, who was also extremely learned but came off as haughty and arrogant in Senate hearings. "I don't think anybody has any reaction to McConnell except, 'I would be delighted to be with him on a panel,'" comments University of California, Los Angeles law professor and McConnell supporter Eugene Volokh.

The trouble is, McConnell's views aren't so different from Bork's. A devout Christian, McConnell supports a pro-life constitutional amendment and has written that "abortion is an evil, all too frequently and casually employed for the destruction of life." He wrote a brief for the winning side in Boy Scouts of America v. Dale in which the U.S. Supreme Court narrowly affirmed the Scouts' right to discriminate against gays. Similarly, McConnell has criticized a 1983 high court ruling that revoked Bob Jones University's tax-exempt status because of the school's ban on interracial dating; he classified the court's decision as a failure "to intervene to protect religious freedom from the heavy hand of government." Given all this, it's no surprise that McConnell is the darling of religious conservatives.

So -- beyond intellectual admiration for a colleague -- what are these liberals thinking? McConnell's supporters generally aren't naive enough to believe that confirming him would actually induce reciprocity from the White House in the form of more mainstream nominees. They do, however, suggest that it could lead to a general lessening of partisan tensions over the judiciary -- not to mention providing a civics lesson on the value of respecting one's political adversaries. "I would favor McConnell even if no extra good would come of it, because I think it's right," says Sunstein. "But the fact that it's the extension of an olive branch might reduce the volume of hostility. That's a very good by-product."

Close observers of the Bush administration's judicial strategy might consider such a statement wishful thinking. What good is a reduction in the volume of hostility if it only ratifies a parade of relentlessly far-right judicial nominees? Harvard's Laurence Tribe, at least, seems to have had second thoughts. Though prominently included in the list of liberal McConnell supporters, Tribe sent an e-mail to The American Prospect in response to my query, saying that the basic conditions for his always conditional endorsement of McConnell had not been met. "I wrote a letter to Senators on the Judiciary Committee over a year ago saying I would favor confirming McConnell if the nominees put forward by President Bush for the circuit courts were, as a group, to be more ideologically balanced than the group he initially unveiled. I wrote that I expected such balance to be forthcoming. Obviously, that expectation was overly optimistic," Tribe wrote.

McConnell supporters are not oblivious to the political hardball being played over court appointments. Laycock, for example, admits that Republicans have been much nastier than Democrats on judicial nominations, especially during the Clinton years. Nevertheless, he argues that blocking a nominee as talented and reputable as McConnell would be justifiable only if the Democrats were to embrace a blanket policy of opposing Bush's ideological appointees. "They've got to be rejecting nearly everybody before they get McConnell on the list," says Laycock.

That's something that most Democrats on the Senate Judiciary Committee, with the notable exception of Charles Schumer and a few others, are unwilling to do. Laycock's argument, like York's, thrusts the onus back onto Senate Democrats, who just let the archconservative D. Brooks Smith slip onto the 3rd U.S. Circuit Court of Appeals' bench and who have more generally been inconsistent on nominees. In this sense, at least, McConnell's liberal supporters should provoke some soul-searching within the Democratic Party.

In their lawyerly quest to persuade, however, McConnell's defenders seem to confuse his indisputable intellectual abilities -- including his argumentative powers that have triumphed before the U.S. Supreme Court -- with political moderation. After all, if McConnell is truly such a canny and impressive advocate, shouldn't that make him an even more problematic candidate for a lifetime judgeship? Wouldn't he simply be better than less-talented Bush appointees when it comes to advancing his conservative vision of America?

Sunstein and company's unsatisfying answer to this question is to claim that McConnell is "unpredictable." Thus, Laycock rattles off a pair of relatively peripheral constitutional issues on which McConnell has departed from Republican orthodoxy: "He opposed the Clinton impeachment, he thought the U.S. Supreme Court should have given the Florida court more time to conduct a recount." Sunstein adds that McConnell would also be unpredictable, and therefore thoughtful, on affirmative action and some federalism issues.

Such an argument carried much weight in pro-McConnell editorials in The Washington Post and The Chicago Tribune. But as a later anti-McConnell editorial in The New York Times suggested, it simply collapses if one considers that McConnell's predictable conservative views, particularly his quite effective efforts to chip away at the wall of separation between church and state, are what got him appointed in the first place. These positions are the core issue in McConnell's nomination, not his quirky (and fairly restrained) criticism of Bush v. Gore.

It can be hard to resist psychoanalyzing McConnell's liberal boosters. Some of them argue cases before the high court. Do they hope that their support for McConnell will be reciprocated if he wins confirmation? Do they themselves expect someday to be nominated to the bench and to be treated by conservatives in the same way that they treated McConnell? Or are they just political innocents? (A liberal has been defined as someone so open minded that he won't take his own side in an argument.) But it may be more illuminating to explore just how representative of the legal professoriat their views are to begin with.

Considering the McConnell letter alongside a recent survey of the nation's most cited law professors reveals that well-known liberals such as New York University's Ronald Dworkin, Georgetown's Mark Tushnet and Yale's Bruce Ackerman did not support McConnell, and Tribe drastically qualified his support. As Ackerman puts it, "McConnell's constitutional views are more or less those of Antonin Scalia. These extreme positions are already overrepresented on the federal courts, and should not be further entrenched by new appointments."

The Senate Judiciary Committee may not vote on McConnell's nomination until after the fall elections, and as Ackerman's and Tribe's statements suggest, the pro-McConnell liberals may already have had their moment. National Public Radio's Nina Totenberg has reported that some signers of the McConnell letter weren't fully aware of his views. As we go to press, the liberal Alliance for Justice is preparing a petition from law professors opposed to McConnell. This shouldn't be surprising: Academic petition-signing often involves a kind of bandwagon effect, and once such documents hit the media, the result is inevitably a skewed picture of scholarly opinion. After all, those who don't sign generally don't release statements of their own.

None of which is to trivialize McConnell's substantial liberal support. Sunstein, Laycock and others have convincingly shown why, in an ideal world, it would be desirable for Democrats to be able to confirm someone as smart and as talented as McConnell. The problem is that, with the federal courts teetering to the right, Democrats have no such luxury. Unfortunately for Michael McConnell, in today's treacherous waters, no judicial nominee is an island.