[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.

                          ____________________