[Congressional Record (Bound Edition), Volume 148 (2002), Part 17]
[Senate]
[Pages 22750-22752]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

  Mr. REID. Mr. President, I ask unanimous consent that the Senate 
proceed to executive session to consider the following calendar 
numbers: No. 1177 and No. 1179; that the nominations be confirmed, the 
motions to reconsider be laid on the table, the President be 
immediately notified of the Senate's action, and any statements be 
printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The nominations considered and confirmed are as follows:


                             the judiciary

       Michael W. McConnell, of Utah, to be United States Circuit 
     Judge for the Tenth Circuit.


                         department of justice

       Kevin J. O'Connor, of Connecticut, to be United States 
     Attorney for the District of Connecticut for the term of four 
     years.


                   nomination of michael w. mcconnell

  Mr. HATCH. Mr. President, it is my high honor and privilege to speak 
on the confirmation of Professor Michael McConnell to the Tenth Circuit 
Court of Appeals. Professor McConnell is a Utahn, a scholar of the 
highest talent, and a man of profound integrity and judicial 
temperament.
  Professor McConnell holds the prestigious Presidential Professorship 
at the University of Utah College of Law in Salt Lake City. He began 
his legal career at the University of Chicago Law School, where he was 
Comment Editor of the Law Review and graduated Order of the Coif. 
Thereafter he served as a law clerk for two of the leading liberal 
jurists of the 20th century: Supreme Court Justice William J. Brennan, 
Jr. and D.C. Court of Appeals Judge J. Skelly Wright.
  After completing those clerkships, Mike became Assistant General 
Counsel of the Office of Management and Budget and then served as 
Assistant to the Solicitor General. He then joined the faculty of the 
University of Chicago Law School, where he was awarded tenure and later 
the William B. Graham Professorship.
  In addition to his academic credentials, Professor McConnell is an 
able and experienced appellate lawyer. He has argued eleven cases 
before the United States Supreme Court--and won nine of them. In fact, 
the Los Angeles Daily Journal named one of his presentations to the 
Supreme Court ``best oral argument'' of the year. His clients include a 
wide range of entities: Fortune 500 companies such as NBC and 
Ameritech; organizations such as the United States Catholic Conference; 
municipal authorities including the New York Metropolitan Transit 
Authority; and many individuals.
  This combination of intelligence and experience was very likely the 
reason that the American Bar Association rated Professor McConnell 
unanimously ``well qualified''--its highest possible rating.
  Now, Mr. President, I imagine you have heard some of the attacks 
waged against these fine nominees by the usual suspects--that group of 
Washington-based special interest lobbyists who make their living 
trying to thwart President Bush's judges. Those groups are trying to 
make believe that Professor McConnell is out of the mainstream of 
American politics.
  Well, let me set the record strait. I'll mention just a few of the 
positions Professor McConnell has taken that prove he is an 
independent-minded thinker who calls things as he sees them, and does 
not follow anyone else's political prescription. Professor McConnell 
represented, without charge, three former Democratic Attorneys General 
in opposition to an order of the first President Bush; publicly opposed 
impeachment of President Clinton; urged the confirmation of several of 
President Clinton's judicial nominations; testified against a school 
prayer amendment; worked, without charge, on a lawsuit representing 
both People for the American Way and Americans United for the 
Separation of Church and State; has been described by Supreme Court 
Justice Antonin Scalia as ``the most prominent scholarly critic'' of 
Scalia's approach to the free exercise clause; and has served as co-
chair--together with a former ACLU president and a former American Bar 
Association president--of an organization whose purpose is to oppose MY 
proposed constitutional amendment to protect the American flag from 
desecration.
  So you see, Mr. President, the idea that McConnell is in lock-step 
with the Republican party is absolutely untrue. Rather than credit all 
of the unsupported attacks with responses, I instead would like to tell 
you a couple of things the ARE true about Professor McConnell.
  First, Professor McConnell is widely regarded as modern America's 
most persuasive advocate for the idea that our government should ensure 
every citizen's right to worship--or not worship--in his or her 
preferred manner. Through his scholarship and advocacy in court, he has 
stood up for the rights of all religious people--including members of 
some politically out-of-favor faiths--to worship free of government 
restriction or intrusion.
  Many Americans believe that the freedom to exercise their own 
religion is the most profound and important idea on which this country 
was founded. Before Professor McConnell began his prodigious 
scholarship in the area of the First Amendment's religion clauses, the 
idea was taking root that the government must disfavor religion in its 
policies. That is, judges and scholars believed that all groups must be 
treated equally except religions, which must be excluded entirely from 
any government program or policy.
  Professor McConnell's scholarship served as a dramatic wake-up call. 
He researched the Founders' writing and presented with illuminating 
clarity that the point of free exercise is for government to remain 
neutral as between religions, and must accommodate religious activity 
where feasible. He demonstrated there was no basis in the founding for 
the view that our government must be anti-religion. The persuasiveness 
of his writing reawakened American legal scholars and judges to the 
Founders' view that the First Amendment's purpose is to protect 
religion from government, not the other way around. His work has helped 
reinvigorate the healthy and dynamic pluralism of religion that has 
allowed all faiths to flourish in this promised land, the most 
religiously tolerant nation in human history.

[[Page 22751]]

  McConnell's views defy political pigeonholing. Although he has 
generally sided with the so-called liberal wing of the Court on 
questions of Free Exercise of Religion, McConnell's view of 
Establishment of Religion is that religious perspectives should be 
given equal but not favored treatment in the public sphere--a view that 
has led him to testify against a school prayer amendment, while 
supporting the rights of religious citizens and groups to receive 
access to public resources on an equal basis.
  Few people in modern America have contributed more to their area of 
expertise than Professor McConnell. He has written over 50 articles in 
professional journals and books. He has delivered hundreds of lectures 
and penned many op-ed pieces. He has contributed an immeasurable amount 
to the discourse of legal ideas. As Professor Laurence Tribe wrote to 
the Judiciary Committee, ``McConnell is among the nation's most 
distinguished constitutional scholars and a fine teacher.'' Tribe 
further explained that he and McConnell ``share a commitment to 
principled legal interpretation and to a broadly civil libertarian 
constitutional framework.''
  The significance of McConnell's contributions to the legal profession 
in part explains why 304 professors--ranging from conservative to 
liberal to very liberal--have signed a single letter urging us to 
confirm McConnell's nomination.
  Mr. President, when was the last time that 304 professors agreed on 
anything? Professor McConnell's peers consider him one of the nation's 
foremost constitutional scholars and appellate advocates and as a 
person with a reputation for open-minded fairness.
  Because of his outstanding reputation for scholarship, the attacks on 
Professor McConnell have not focused so much on his judicial abilities, 
but on his personal beliefs. I think this is wrong. All Americans have 
the right to think their own thoughts and believe their own beliefs. 
That right should apply as much to the Americans who don robes in 
service of the Federal Judiciary as to any other citizen.
  One of the Senate's most important roles in exercising advice and 
consent on judicial nominees is to make sure that they are free from 
any bias--whether political, religious, personal or otherwise--that 
would endanger their ability to follow the law as written by the 
legislature and interpreted by higher courts. No one wants a judge who 
plays legislator from the bench. We want and expect judges who know 
their limited role and will uphold the law regardless of their personal 
views. And as long as a judge is willing to do that, any other litmus 
test on their personal views is contrary to our constitutional 
responsibility, and an invasion into the freedom of conscience.
  I am concerned that some who are involved in the judicial 
confirmation process are pursuing a course that endangers the freedom 
of conscience for the Americans who serve on our courts. This is not 
only a personal offense against nominees who are dragged through the 
mud or even rejected for their private, personal opinions, it is also 
an offense against the citizens of this great country, who rely on our 
federal judges to enforce our many rights and liberties. The diversity 
of backgrounds and points of view are often the stitches holding 
together the fabric of our freedoms.
  If I may be blunt about this, an impression has been created this 
year that there are some in the Senate who are attempting to impose a 
litmus test on the issue of abortion. No one should stand for this--not 
even people who are pro-choice as a matter of public policy. In fact, 
people who are pro-choice should be especially reluctant to establish a 
precedent that would allow the Senate to select judges according to 
their personal views rather than their willingness to follow and 
enforce established legal precedents. Pro-choice activists have as much 
to gain from the triumph of precedent over personal view as anyone 
else.
  The fact that most people who are pro-choice hold their position as a 
matter of political viewpoint or ideology. They do so in good 
conscience no doubt, and I respect that. But the great majority of 
people who are pro-life come to their positions as a result of their 
personal religious convictions. It is one thing to ensure that judicial 
nominees pledge to follow the law--we must do that--but quite another 
to require nominees to have a particular private view. Enforcing such a 
test would not only destroy the freedom of conscience, but also would 
exclude from our judiciary a large number of people of religious 
conviction who are prepared to follow the law.
  Now, Professor McConnell has written about abortion, and it is very 
important for us not to violate his freedom of conscience while 
exploring his views. The most important thing he has written on this 
topic, for the Senate's purposes, is that U.S. Supreme Court precedent 
setting forth the basic abortion right is settled and secure. Indeed, 
he believes that lower court judges have a clear duty to follow and 
apply that case law, and he will do just that if confirmed.
  Beyond that, Professor McConnell's scholarship on the subject defies 
standard stereotypes. His writings have focused on two questions. First 
is the methodology or legitimacy of the Court's reasoning in Roe v. 
Wade. Like many constitutional scholars--including prominent supporters 
of abortion rights such as Justice Ruth Bader Ginsberg--Professor 
McConnell has written that the Court in Roe overstepped the bounds of 
proper judicial decision making and has argued that, when facing other 
issues of deep moral disagreement--for example, assisted suicide--the 
courts should not constitute their judgment for that of the 
legislatures, particularly where there is a broad consensus among the 
states regarding the proper role for regulation.
  The second area he has addressed is the possibility of middle-ground 
approaches to abortion that would find support even from many pro-
choice advocates--dealing with such problems as inadequate counseling 
and support for troubled pregnant women. He has been critical of the 
extremes on both sides of the questions surrounding abortion, and has 
argued that one result of the constitutionalization of abortion law has 
been that is has prevented political leaders from exploring middle-
ground approaches.
  Professor McConnell has also written in defense of the free-speech 
rights of abortion protestors.
  The fact is that, despite some attempts to confuse this issue, there 
is nothing in Professor McConnell's writings that should cause any 
doubt that Professor McConnell is committed to the ideas of stare 
decisis and controlling legal precedent. To look beyond that belief, to 
probe his personal views based on religious conviction, is not only to 
miss the point of our job but also to jeopardize the freedom of 
conscience of those who serve our country as members of the judiciary.
  Many people across the political spectrum know that Professor 
McConnell will obey precedent even when it is at odds with his own 
views. That explains why Professor McConnell's nomination has been 
praised by a number of people who disagree with some of his opinions, 
including former Clinton administration officials Acting Solicitor 
General Walter Dellinger, Deputy White House Counsel William Marshall, 
Domestic Policy Advisors Bill Galston and Elena Kagan, and Associate 
Attorney General John Schmidt.
  Listen to part of a letter I received from the Legal Director of the 
ACLU chapter in Utah. He wrote--in his personal capacity--to endorse 
Professor McConnell ``enthusiastically and without qualification,'' 
saying that ``there can be no doubt that [lawyers who appear before 
him] will receive a fair and impartial hearing, thoughtful scrutiny and 
careful consideration toward a decision that will be based solely on 
the merits and not on any predetermined ideological or political 
agenda.''
  Professor McConnell is immune to any political litmus test because he 
has a solid bipartisan reputation for integrity and fairness. He is 
committed to the rule of law and to the ideal of nonpartisan judging. 
He is known for his principled defense of a limited and restrained role 
for the judiciary in our

[[Page 22752]]

constitutional system. He has argued for constitutional interpretation 
based on constitutional text, original understanding, historical 
experience, and precedent. He has criticized scholars and judges of 
both the right and the left for advocating interpretation based on the 
judge's own political or moral views. He has advocated a major role for 
Congress in defining and protecting civil rights and has criticized the 
Supreme Court's decisions limiting such measures to mere enforcement of 
the Supreme Court's own interpretations. Civil rights groups should 
take special note of his defense of broad congressional power under 
Section Five of the Fourteenth Amendment.
  In conclusion, Mr. President, Professor McConnell is one of the very 
best people ever nominated to be a judge. I am very pleased that the 
Senate confirmed him today. He will be a great judge.
  Thank you, Mr. President. I yield the floor.
  Mrs. BOXER. Mr. President, tonight, the Senate will consider the 
nomination of Michael McConnell to a life-time appointment to the Tenth 
Circuit Court of Appeals. I oppose this nomination.
  Professor McConnell's record as a scholar, an advocate and an 
activist show him to be far outside the American mainstream on a number 
of critical constitutional, civil rights, and other legal issues. His 
views are so clear and consistent that I believe no litigant on areas 
such as reproductive rights or the separation of church and state could 
reasonably expect to receive a fair and impartial hearing in Judge 
McConnell's court room.
  Let me tell you why I believe that. Professor McConnell has called 
the right to choose an ``evil'' and one of the greatest injustices of 
our day. He would not simply overturn Roe v. Wade--a disastrous outcome 
for American women--he has gone so far as to suggest that the courts 
should declare embryos persons under the Fourteenth Amendment. He has 
called Roe v. Wade ``illegitimate,'' and has called for a 
constitutional amendment banning the right to choose and granting 
constitutional rights to embryos.
  Professor McConnell has also written and spoken against the Freedom 
of Access to Clinic Entrances Act (FACE). He believes--in contrast to 
every Federal appellate court that has considered the question--that it 
is unconstitutional. In a recent article, he expressed admiration for a 
district court judge who refused to apply FACE because the defendants 
did not act with ``bad purpose.'' Mr. President, that is not in the 
statute Congress passed. McConnell's statements of admiration for the 
``judicial nullification'' of a Federal statute that he does not agree 
with speaks volumes about his inability to fairly and impartially apply 
a range of civil rights statutes that may conflict with his views.
  And it makes it clear that as a judge, he would be a judicial 
activist.
  McConnell has even criticized the Supreme Court's 8-1 decision in the 
Bob Jones case from 1983. In that decision, the Court ruled that the 
IRS may deny tax-exempt status to a school that discriminates against 
minorities. In a 1989 article, McConnell wrote that the ``racial 
doctrines of a Bob Jones University'' should have been ``tolerated'' 
because they were ``church teachings.''
  Mr. President, I realize that this is not a Supreme Court nomination. 
But, the reality is that Circuit Courts make new law in many areas 
where the Supreme Court has not spoken. The Supreme Court hears fewer 
than 100 cases per year, while the Courts of Appeal decide close to 
30,000. The truth is, the appellate court are very often the courts of 
last resort. As Justice Scalia recently wrote, ``the judges of inferior 
courts often make law, since the precedent of the highest court does 
not cover every situation, and not every case is reviewed.''
  Already, Mr. President, increasingly conservative Federal courts are 
upholding greater and greater restrictions on the right to choose, 
chipping away at the protections of Roe vs. Wade. In the area of 
reproductive rights, the Circuit Courts routinely make new law, as 
anti-choice advocates test the constitutional limits with new and 
creative restrictions on the right to safe and legal abortion. The 
importance of each Federal judge in protecting the right to choose is 
underscored by the fact that many recent abortion cases have involved 
reversals and dissents, demonstrating that judges often disagree on the 
correct application of law. I believe that Professor McConnell's 
extensive anti- choice record shows that he will use every opening the 
law permits to further restrict a woman's right to choose.
  Unfortunately, Professor McConnell does not stand apart from other 
Bush nominees for his extreme ideology. I believe he was chosen because 
of it.
  Remaking the Federal courts has been a long-term goal of the right-
wing base of the Republican party. They have pursued this goal with 
dogged determination and persistence for more than two decades, and 
they are succeeding. More and more restrictions on a woman's right to 
choose are being upheld as constitutional by the increasingly 
conservative Federal courts, while portions of anti-discrimination law 
and Violence Against Women Act--a law that Senator Biden wrote and that 
I was proud to sponsor when I was in the House--are struck down. This 
is not the right direction for the federal courts.
  Now Bush Administration is poised to tip the scales of justice even 
further to support an extreme anti-choice agenda, and the right to 
choose may well disappear for more and more American women--especially 
for poor women. Don't take my word for it. After last week's elections, 
former Reagan Administration attorney Bruce Fein said that there will 
be a philosophical revolution in the courts and that Bush nominees will 
impose a variety of new restrictions on a women's right to choose. The 
impact, he said, will be almost as great as if Robert Bork had been 
confirmed.
  Mr. President, during the Clinton Administration, I was repeatedly 
told by the Republican leadership in the Senate that I should only 
recommend moderate judges to fill judicial vacancies on the Federal 
courts in the state of California. Otherwise, I was told, Republicans 
would not let them be confirmed.
  President Bush should be held to the same standard. In fact, 
President Bush said he wanted to govern from the middle. And he 
fulfilled that commitment on the district court level in California 
when he agreed to a bipartisan committee selection process. That 
process has worked well, producing well-qualified mainstream nominees 
for eight open district court seats in California.
  However, Professor McConnell's nomination does not meet the test. He 
does not fulfill President Bush's commitment to govern from the middle. 
He does not meet the requirement established by the Senate Republican 
leadership during the Clinton Administration that nominees be moderate. 
No, Mr. President, Professor McConnell is far outside the mainstream.
  I again call on President Bush--as have so many in the Senate--to 
reach out across the aisle and to work with all of us to find and 
nominate the moderate, consensus judges that Americans deserve.

                          ____________________