[Congressional Record Volume 148, Number 149 (Monday, November 18, 2002)]
[Senate]
[Page S11306]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE CONFIRMATION OF MICHAEL McCONNELL TO THE 10TH CIRCUIT
Mr. LEAHY. Mr. President, last Friday, the Senate approved the
nomination of Michael McConnell to the United States Court of Appeals
for the Tenth Circuit. As a professor, first at the University of
Chicago, and then at the University of Utah, Mr. McConnell has been a
strong voice for reexamining First Amendment jurisprudence of Free
Exercise Clause and the Establishment Clause. He has expressed strong
personal opposition to abortion to Roe v. Wade, to the clinic access
law. He has testified before the Congress against the Violence Against
Women Act on the grounds that it was unconstitutional.
Each of these issues was explored to some degree at his hearing
before the Judiciary Committee and in follow up written questions. No
one doubts that Professor McConnell is personable and intelligent. No
one doubts that he is an outstanding and provocative professor. I see
why so many of his law professor colleagues like him and have endorsed
his nomination. But the Judiciary Committee also received letters from
hundreds of law professors reminding us that the burden of persuasion
on lifetime judicial appointments should be on the nominee, as well as
a recent letter signed by hundreds of law professors opposing
confirmation of Professor McConnell.
The question I was left with after his nomination hearing was whether
we had witnessed another confirmation conversion. Stated another way, I
remain very concerned that Professor McConnell may turn out to be an
activist on the 10th Circuit.
For instance, I still have a hard time reading his writing on the
actions of Federal District Court Judge John Sprizzo in acquitting
abortion protesters as anything other than praise for the extra-legal
behavior of both the defendants and the judge. Even though Professor
McConnell has now been confirmed, I continue to be concerned that he
appeared to commend a judge and regard him as a hero for not following
the law.
I find his responses regarding the Violence Against Women Act
convenient.
I see his refusal to take responsibility for his harsh criticism of
the Supreme Court's decision in the Bob Jones case as an attempt to
distance himself from his prior approval of the ability of religious
institutions to discriminate on the basis of race, even if they are
receiving benefits from the Government.
At his hearing, and in follow-up written questions, Professor
McConnell sought to assure us that he understands the difference
between his role as a teacher and advocate and his future role as a
judge. He assured us that he respects the doctrine of stare decisis,
and that as a Federal appeals court judge, he will be bound to follow
Supreme Court precedent.
Although many of President Clinton's nominees who assured the Senate
of these same things when they were nominated were discredited and not
considered, this nomination has moved forward and been approved.
I reluctantly supported this nomination to the 10th Circuit based on
Professor McConnell's assurances. I trust that he will not seek to
undermine women's reproductive rights derived from the Constitution and
articulated in Roe v. Wade. I trust that as an appeals court judge he
will divorce his personal views on abortion and on racial
discrimination in religious institutions from his decisions as a judge,
and that he will act to uphold existing law. I trust that he will not
seek to circumvent the doctrine of stare decisis and that he will not
work to change the law through activism on the bench.
There are already admirers who predict that Professor McConnell is
destined for a short stop at the 10th Circuit on the way to a Supreme
Court nomination. I do not speculate about such things. Professor
McConnell has yet to create a record on the 10th Circuit. I mention it
only to note that no one should confuse my support of Professor
McConnell's nomination to the 10th Circuit as an endorsement or
approval for any other position.
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