McConnell

Judge Michael McConnell, although an originalist is widely considered to be a prolific scholar. To me he seems like the best of what Bush could stand to offer at this point (especially because he clearly has a ravenous right-wing group to appease this time around). David Brooks even prominently featured him in his now famous Pre-Roberts "Pick a Genius" column him. He had this to say about McConnell:

Look, for example, at how Michael McConnell, who is often mentioned as a possible Supreme Court nominee, has already influenced American life through sheer force of intellect. First as a professor and now as a judge, McConnell has out-argued those who would wall off religion from public life. He's a case study of the sort of forceful advocate of ideas you have a chance to leave the country as your legacy.

McConnell (whom I have never met) is an honest, judicious scholar. When writing about church and state matters, he begins with the frank admission that religion is a problem in a democracy. Religious people feel a loyalty to God and to the state, and sometimes those loyalties conflict.

So he understands why people from Rousseau and Jefferson on down have believed there should be a wall of separation between church and state.

The problem with the Separationist view, he has argued in essays and briefs, is that it's not practical. As government grows and becomes more involved in health, charity, education and culture issues, it begins pushing religion out of those spheres. The Separationist doctrine leads inevitably to discrimination against religion. The state ends up punishing people who are exercising a constitutional right.

In one case, a public high school allowed students to write papers about reincarnation, but a student who wrote on "The Life of Jesus Christ" was given a zero by her teacher. The courts sided with the teacher. In another case, a physiology professor at a public university was forbidden from delivering an optional after-class lecture at the university titled "Evidences of God in Human Physiology," even though other professors were free to profess any secular viewpoints they chose. Around the country, Marxists could meet in public buildings, but Bible study was impermissible.

McConnell argued that government shouldn't be separated from religion, but, as Madison believed, should be neutral about religion. He pointed out that the fire services and the police don't just protect stores and offices, but churches and synagogues as well. In the same way, he declared in congressional testimony in 1995, "When speech reflecting a secular viewpoint is permitted, then speech reflecting a religious viewpoint should be permitted on the same basis." The public square shouldn't be walled off from religion, but open to a plurality of viewpoints, secular and religious. The state shouldn't allow school prayer, which privileges religion, but public money should go to religious and secular service agencies alike.

McConnell's arguments have had a profound effect on court decisions. In the '70s and '80s, Separationists were ascending. But in the past decade, courts have returned to the Neutralist posture McConnell champions.

In short, McConnell is a perfect example of how a forceful advocate — a person who can make broad arguments on principle and apply them in practical ways — can have a huge influence on the law. This is the sort of person any president should want to nominate for the Supreme Court.

Unfortunately it seems McConnell may have killed any chance of ever being able to get confirmed when he said this (via Volokh):

if McConnell were to be nominated, his opponents would have such a good (albeit unfair) soundbite against him that I'm not sure that he could survive it. He wrote, in discussing the 1954 case of Bolling v. Sharpe, that "[t]he suggestion that the Due Process Clause of the Fifth Amendment prohibits segregation of public facilities is without foundation." Balkin, ed., What Brown v. Board of Education Should Have Said, p. 166. The view that the Fifth Amendment does not prohibit discrimination by the Federal Government is a perfectly respectable originalist viewpoint, though, as I discuss in a recent Georgetown Law Journal article, I believe that originalists have vastly exaggerated the perceived problems with Bolling specifically, and more generally with the idea that the Fifth Amendment's Due Process Clause includes an antidiscrimination principle (indeed, I believe that Bolling was arguably more justified in terms of text and history than its companion case, Brown v. Board of Education).

But regardless of how plausible, sincere, or even correct McConnell's view of the Fifth Amendment and Bolling is, I'd hate to be on the receiving end of a People for the American Way ad stating that "Bush nominee Michael McConnell believes that the federal government may establish Jim Crow, segregated schools." Or, "McConnell believes that the federal government is allowed to discriminate based on race, sex, or ethnicity." Either such ad, while not exactly fair, would be accurate.

Well, so much for that then. And it is truly a shame, it means that we will probably get stuck with a pre-programed "conservative" who would simply be confirmable, as opposed to a unique legal mind (something that would stand to benefit everyone on the Supreme Court). This of course, may have been why the lackluster Harriet Miers was nominated in the first place, to avoid a situation where someone actually smart could have been "Borked."

Oh well, life goes on. But something to consider.

-Mr. Alec