Freethought & Rationalism Archive

Stephen Maturin · 11-13-2002, 04:14 PM

Reading the list of signatories to <a href="http://www.usdoj.gov/olp/michaelmcconnellsupportletter.htm" target="_blank">this letter</a> might lead one to believe that legal academia's support for the nomination of University of Utah law professor Michael McConnell to the 10th Circuit Court of Appeals is virtually universal. Turns out that's not true by a longshot.

Today I stumbled across a letter addressed to Senator Pat Leahy and signed by numerous law professors opposing McConnell's confirmation. I haven't counted the number of signatories, but the list is two columns wide and runs about ten and a half pages.

The body of the letter details the signatories' opposition issue by issue using information from McConnell's own writings. As to church-state separation, the professors write:

Quote:

Professor McConnell has also disagreed with the results reached in Lemon v. Kurtzman, in which the Supreme Court held that direct funding of parochial schools violates the Establishment Clause. While many have criticized the three-part test announced by the Supreme Court in Lemon, it is hard to criticize the result in Lemon and believe that there is anything left of the Establishment Clause. Even the Supreme Court�s recent voucher decision, Zelman v. Simmons-Harris, emphasized the distinction between school vouchers and direct aid to schools with a religious affiliation on the grounds that the vouchers went to individuals who then made an independent choice to give them to a religious organization. In fact, Justice O�Connor, the decisive vote in this 5-4 case, wrote separately to emphasize that this was not a departure from previous Establishment Clause cases but was a �refinement of the Lemon test . . . .� Professor McConnell, by contrast, has stated that the result in Lemon wrongly prohibited the government from directly paying for the �secular� portion of a parochial school education.

Regarding the contention that McConnell's academic writings don't really reflect how he'll act on the bench, the professors respond:

Quote:

As law professors ourselves, we recognize the need for academics to explore new and provocative constitutional theories and to disagree with Supreme Court decisions in strong terms. Nevertheless, Professor McConnell�s writings clearly delineate a jurisprudential philosophy that would result in constitutional doctrines that show a profound disregard for fundamental rights and liberties. Since he maintains a deep-seated commitment to that philosophy, despite acknowledging these consequences, his writings are proper grounds for deciding that he should not be appointed to a lifetime seat on the court of appeals.

None of this matters much since McConnell's confirmation is pretty much a foregone conclusion at this point. Even so, the letter makes for interesting reading.

You can download the letter by right-clicking <a href="http://www.independentjudiciary.com/resources/docs/McConnell%20Opposition%20Letter.pdf" target="_blank">here.</a> It's a PDF document, so you'll need Adobe Acrobat Reader to open it.

pug846 · 11-13-2002, 06:24 PM

4 professors from my school are on that sheet

Although one is probably one of the most conservative professors at the school and is on record for claiming that minorities are inferior and most shouldn�t be in law school.

I�m really shocked to see Professor Laycock on that list and I can�t imagine he would endorse a religious nut. Professor Laycock is one of the nations fore most experts on the 1st amendment and religious freedoms. His position would be quite acceptable to most posters here. (He thought the Pledge case was clearly decided correctly.) If someone would provide me with some information on this judge, I�d like to go ask Professor Laycock his thoughts.

Thanks.

Edited to add: The list in support is signed by a much more impressive group of people, IMO. The �against� list probably wouldn�t be that long if it weren�t for the fact that it seems the whole entire Georgetown law faculty signed.

[ November 13, 2002: Message edited by: pug846 ]</p>

Stephen Maturin · 11-14-2002, 08:48 AM

According to <a href="http://www.cnn.com/2002/ALLPOLITICS/11/14/senate.judges.ap/" target="_blank">CNN</a>, the Senate Judiciary Committee today approved the nominations of McConnell and Dennis Shedd. On to the full Senate they go.

Toto · 11-20-2002, 05:11 PM

Just like Judge Moore snuck his 2 1/2-ton granite sculture into the courthouse in the middle of the night, the Senate approved McConnell on an unrecorded voice vote held late Friday night, Nov. 15th.

<a href="http://www.washingtonpost.com/ac2/wp-dyn/A7831-2002Nov18" target="_blank">Washington Post news brief buried on page 10.</a>

McConnell's chances may have been helped by being paired with a nominee for the 4th Circuit, U.S. District Judge Dennis Shedd, a former aide to Sen. Strom Thurmond. Shedd is reportedly so outrageously bad that the liberal trial lawyers and public defenders in his district decided to support his nomination to the 4th circuit because he could do less damage there.

[ November 20, 2002: Message edited by: Toto ]</p>

Layman · 11-20-2002, 05:48 PM

Quote:

Originally posted by Toto:
Just like Judge Moore snuck his 2 1/2-ton granite sculture into the courthouse in the middle of the night, the Senate approved McConnell on an unrecorded voice vote held late Friday night, Nov. 15th.

<a href="http://www.washingtonpost.com/ac2/wp-dyn/A7831-2002Nov18" target="_blank">Washington Post news brief buried on page 10.</a>

You make it sound as if the Republicans pulled a fast one here. Not true. Remember. The Democrats still control the Senate. If they wanted a recorded vote by golly they could have gotten one. Even during a voice vote individual senators can demand to be heard on the record (as they did in the committee on Shedd's nomination).

The real motive is the gutlessness of the democrat Senators. They knew they'd look like obstructionist jerks (one reason they lost control of the Senate) if they opposed such a well qualified nominee.

Quote:

McConnell's chances may have been helped by being paired with a nominee for the 4th Circuit, U.S. District Judge Dennis Shedd, a former aide to Sen. Strom Thurmond. Shedd is reportedly so outrageously bad that the liberal trial lawyers and public defenders in his district decided to support his nomination to the 4th circuit because he could do less damage there.

McConnell was never in danger.

[ November 20, 2002: Message edited by: Layman ]</p>

Buffman · 11-20-2002, 07:31 PM

The real motive is the gutlessness of the democrat Senators.

All I see is the continued "gutting" of the U.S. Constitution by all the supernaturalist believing "Gawd-O'Crat" Senators?

<a href="http://www.au.org/mcconnell.htm" target="_blank">http://www.au.org/mcconnell.htm</a>

Toto · 11-20-2002, 08:58 PM

I won't disagree if you call the Democrats gutless.

It looks to me more like McConnell's personal performance and academic social connections blinded the Senate Democrats to the clear meaning of his words. He has written some truly outrageous things about church state separation and the obligation of lower courts to follow precedent, but somehow convinced his friends that he didn't mean any of it, it was just a law professor pushing the envelope.

But I may not know the whole story. There may be some backroom dealing involved (as there usually seems to be.)

[ November 20, 2002: Message edited by: Toto ]</p>

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11-13-2002, 06:24 PM	#2
pug846 Veteran Member Join Date: Mar 2001 Location: Somewhere Posts: 1,587	4 professors from my school are on that sheet Although one is probably one of the most conservative professors at the school and is on record for claiming that minorities are inferior and most shouldn�t be in law school. I�m really shocked to see Professor Laycock on that list and I can�t imagine he would endorse a religious nut. Professor Laycock is one of the nations fore most experts on the 1st amendment and religious freedoms. His position would be quite acceptable to most posters here. (He thought the Pledge case was clearly decided correctly.) If someone would provide me with some information on this judge, I�d like to go ask Professor Laycock his thoughts. Thanks. Edited to add: The list in support is signed by a much more impressive group of people, IMO. The �against� list probably wouldn�t be that long if it weren�t for the fact that it seems the whole entire Georgetown law faculty signed. [ November 13, 2002: Message edited by: pug846 ]</p>

11-14-2002, 08:48 AM	#3
Stephen Maturin Veteran Member Join Date: Dec 2001 Location: Broomfield, Colorado, USA Posts: 1,295	According to <a href="http://www.cnn.com/2002/ALLPOLITICS/11/14/senate.judges.ap/" target="_blank">CNN</a>, the Senate Judiciary Committee today approved the nominations of McConnell and Dennis Shedd. On to the full Senate they go.

11-20-2002, 05:11 PM	#4
Toto Contributor Join Date: Jun 2000 Location: Los Angeles area Posts: 40,549	Just like Judge Moore snuck his 2 1/2-ton granite sculture into the courthouse in the middle of the night, the Senate approved McConnell on an unrecorded voice vote held late Friday night, Nov. 15th. <a href="http://www.washingtonpost.com/ac2/wp-dyn/A7831-2002Nov18" target="_blank">Washington Post news brief buried on page 10.</a> McConnell's chances may have been helped by being paired with a nominee for the 4th Circuit, U.S. District Judge Dennis Shedd, a former aide to Sen. Strom Thurmond. Shedd is reportedly so outrageously bad that the liberal trial lawyers and public defenders in his district decided to support his nomination to the 4th circuit because he could do less damage there. [ November 20, 2002: Message edited by: Toto ]</p>

11-20-2002, 07:31 PM	#6
Buffman Beloved Deceased Join Date: Oct 2000 Location: central Florida Posts: 3,546	The real motive is the gutlessness of the democrat Senators. All I see is the continued "gutting" of the U.S. Constitution by all the supernaturalist believing "Gawd-O'Crat" Senators? <a href="http://www.au.org/mcconnell.htm" target="_blank">http://www.au.org/mcconnell.htm</a>

11-20-2002, 08:58 PM	#7
Toto Contributor Join Date: Jun 2000 Location: Los Angeles area Posts: 40,549	I won't disagree if you call the Democrats gutless. It looks to me more like McConnell's personal performance and academic social connections blinded the Senate Democrats to the clear meaning of his words. He has written some truly outrageous things about church state separation and the obligation of lower courts to follow precedent, but somehow convinced his friends that he didn't mean any of it, it was just a law professor pushing the envelope. But I may not know the whole story. There may be some backroom dealing involved (as there usually seems to be.) [ November 20, 2002: Message edited by: Toto ]</p>

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