Statement Of Chairman Patrick Leahy
On The Confirmation of Michael McConnell
To The 10^th Circuit
November 18, 2002

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 10^th 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 10^th 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 10^th 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 10^th Circuit.  I mention it only to note that no one should confuse my support of Professor McConnell’s nomination to the 10^th Circuit as an endorsement or approval for any other position.

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