Michael McConnell, to use the overworked metaphor, is the “poster boy” for the Senate Democrats’ attempts to frustrate President Bush’s promise to appoint more Supreme Court justices like Antonin Scalia and Clarence Thomas.  Scalia and Thomas are the two current justices who have most closely embraced a jurisprudence faithful to the understanding of the Framers, and, thus, they are the two most opposed to legislating from the bench.  So far, the Senate Democrats on the Judiciary Committee have acted in accordance with the wishes of their firmest supporters—pro-abortion activists, affirmative-action advocates, and opponents of allowing religion into the public square—who view Scalia and Thomas as anathema.  Accordingly, they have rejected superbly qualified conservative nominees to the federal appellate courts, such as federal district-court judge Charles Pickering of Mississippi (whom they wrongly tarred as a racist) and Texas Supreme Court Justice Patricia Owen (who, they claimed, was out of the mainstream with regard to a woman’s “right to choose” and other issues).  Pickering and Owen were not even sent to the Senate floor: Their nominations were killed by the Democrats on the committee by a ten-to-nine party-line vote.

The liberal “public-interest groups” have generally sought to “Bork” McConnell, too, painting him as a dangerous reactionary who, since he is on record opposing the reasoning in Roe v. Wade, would oppress women and commit other atrocities if placed on the bench.  Until September 2002, the McConnell nomination to the Tenth Circuit Court of Appeals was successfully kept off the agenda of the Judiciary Committee, even though McConnell had been nominated in May 2001.  The Judiciary Committee’s failure to act on his nomination offered the Republicans a constant opportunity to criticize the Democrats, since McConnell’s credentials—Supreme Court clerk for ultra-liberal Justice William Brennan; one of the most respected lawyers at the Supreme Court bar; and a longtime law professor at the prestigious law school of the University of Chicago and, most recently, at the University of Utah—were about as impeccable as they come.

Then McConnell was abruptly scheduled for a hearing before the committee in mid-September.  The liberal groups were still bleating, but some observers thought they could discern an inclination to confirm McConnell.  By the time you read this, you will know whether that was the case.

Three hundred law professors from every corner of the ideological spectrum, from Laurence Tribe and Akhil Amar on the left to myself on the right, signed a letter to the Judiciary Committee urging McConnell’s confirmation, which may have carried some weight.  More likely, the Senate Democrats figured that, by tossing the Republicans the McConnell bone, they could neutralize the criticism likely to arise in crucial Senate campaigns, which might result in the Republicans regaining control of that chamber.  

Thus, confirming McConnell might simply be good politics; some maneuvers by liberal law professors, however, have suggested that McConnell was not really much like Scalia and Thomas after all.  Cass R. Sunstein, a Chicago law professor, longtime colleague of McConnell, and a frequent Democratic witness before the Senate Judiciary Committee, wrote a letter in mid-August to its chairman, Sen. Patrick Leahy, urging McConnell’s confirmation, on the grounds that he not only “is one of the best legal minds [Sunstein] had ever encountered” but also “is no ideologue.  He is very different, for example, from Robert Bork and Justices Scalia and Thomas, all of whom have ideological tendencies.”  Exactly what Sunstein meant was obscure, but in his letter, and in a Wall Street Journal op-ed (intriguingly titled “A Conservative Nominee Liberals Should Love”) published the day before McConnell’s hearing, Sunstein pointed out that McConnell was on record opposing the impeachment of President Clinton, criticizing the Supreme Court’s rationale for stopping the recount in Bush v. Gore, and championing congressional power.  As Sunstein put it in his letter to Leahy, “I can’t be certain, but my strong hunch is that McConnell would be a strong defender of Congress’ constitutional prerogatives, as reflected in his outstanding defense of the Religious Freedom Restoration Act” (which the Supreme Court threw out as exceeding Congress’s powers).

McConnell is a good man who does deserve to be confirmed.  When a president nominates a person of honor, intelligence, and accomplishment, his choice should not be scuttled by a Senate Judiciary Committee deferring to unscrupulous character assassins.  Those hoping to see more judges like Scalia or Thomas, however, are likely to be disappointed unless the Senate changes hands in November.