Shortly before the November 2000 presidential election, University of Utah College of Law professor Michael W. McConnell surveyed the legal landscape in America and was alarmed by what he saw.
The U.S. Supreme Court, McConnell wrote in the conservative religious journal First Things, "hangs by a thread." Assuming that the next president would have an opportunity to appoint justices to the high court, McConnell wrote, "To an extent rarely seen in the history of the nation, the content and meaning of the Constitution appear to be up for a vote in the next presidential election."
McConnell left no doubt where he stood. He accused the four justices who uphold separation of church and state John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer of employing "extremist rhetoric." By contrast, the five justices who are often hostile to church-state separation Antonin Scalia, William H. Rehnquist, Clarence Thomas, Anthony Kennedy and Sandra Day O'Connor rely on "cool, almost boring prose," according to McConnell.
In McConnell's world, advocates of church-state separation on the high court can do no right, while opponents are the legal equivalent of knights in shining armor. Thus, when the court upheld government aid to religious schools in 2000's Mitchell v. Helms, a case McConnell personally argued, Justice Souter's dissent was, according to McConnell, "interminable," while Justice Thomas' lead opinion was "gutsy" and "powerful."
If McConnell were just another pundit pontificating on Supreme Court rulings from an endowed university chair, his opinions might not matter much. But McConnell is in a position to be much more. If President George W. Bush has his way, McConnell will soon occupy a position on the U.S. 10th Circuit Court of Appeals and might possibly take a seat on the Supreme Court someday.
Bush nominated McConnell to the 10th Circuit slot on May 9, 2001. For more than a year his nomination has hung in abeyance as the president and the Senate, controlled by Democrats, squabbled over judicial nominees. But now McConnell's nomination is starting to move, with a hearing held before the Senate Judiciary Committee as Church & State went to press.
At Americans United, the McConnell nomination set off immediate alarm bells, and the organization quickly announced its opposition to his nomination. AU has been aware of McConnell's views for years and agrees with a New York Times assessment of the law professor that labeled him "an important architect of a shift in American law away from strict separation of church and state."
McConnell's associates describe him as personable, bright and hard working. Americans United takes no issue with McConnell on a personal level but believes that he is a legal activist whose unrelenting hostility toward church-state precedent and the high court make him unfit for service on the federal bench.
For years McConnell has advocated for religious school vouchers, religion in public schools and more religious presence in government. He personally argued two cases before the high court that laid the groundwork for last June's decision upholding vouchers the 2000 Helms case and Rosenberger v. Rector and Visitors of the University of Virginia, a 1995 case in which the high court ruled that student-run religious groups at universities are entitled to student government funding alongside secular ones. McConnell has also written numerous law review articles critical of church-state separation.
McConnell has not confined himself to airy, academic debates in obscure legal journals. He's been a high-profile activist on behalf of a lower wall of separation between church and state and has outlined his views in right-wing publications, primarily First Things.
Published by the Rev. Richard John Neuhaus, a conservative Catholic priest, First Things regularly assails church-state separation and the views held by Americans United. Neuhaus' own writings in the journal are frequently sarcastic and acerbic, and he has attacked Americans United regularly over the years. Under Neuhaus' editorship, McConnell has had free rein to criticize church-state separation and the court decisions upholding it.
Congressional opponents of church-state separation also know they have a friend in McConnell. In 1995 they drafted him to offer testimony before the House Judiciary Committee in favor of a constitutional amendment that would have removed church-state separation from the Bill of Rights.
During his remarks, McConnell asserted, "In the past few decades, there has been an extraordinary secularization of American public life, especially in the schools." He blasted the idea that "laws must be based on strictly secular premises, public education must be strictly secular, public programs must be administered in a strictly secular manner and public monies must be channeled only to strictly secular activities."
McConnell told the committee that the "separationist model" of church-state relations is erroneous and recommended adoption of a policy of giving government aid and support to all religions on an equal basis.
In McConnell's view, failure to extend government aid to religious schools is a form of discrimination. "By taxing everyone, but subsidizing only those who use secular schools, the government creates a powerful disincentive for parents to exercise their constitutionally protected option to send their children to [religious] schools," he told Phi Delta Kappan magazine in 1999.
Laying out the case against McConnell, Americans United also cites the following:
McConnell called for a "radical" departure from decades of church-state separation rulings by the U.S. Supreme Court in a March 11, 2000, interview with the Salt Lake Tribune and has indicated his support for school-sponsored graduation prayer, voucher subsidies for religious schools and charitable choice aid to ministries.
In a Winter 1992 article in the University of Chicago Law Review, McConnell insisted that the Constitution allows broad public funding of religious institutions. "We must therefore reject the central animating idea of modern Establishment Clause analysis: that taxpayers have a constitutional right to insist that none of their taxes be used for religious purposes," he wrote.
McConnell, writing in the Utah Law Review in 1999, described church-state separation as never having been a "plausible or attractive conception of proper relations between government and religion in the modern activist state."
The New York Times Magazine on Jan. 30, 2000, reported McConnell as saying that religion cannot be separated from other areas of life. "Many people think that it's possible to have an entirely secular education and any religious training can be on the side. I don't believe that religion is something which is a separable aspect of life," he said.
Writing in American Enterprise magazine in January of 1993, McConnell criticized Supreme Court rulings that upheld church-state separation, including Lee v. Weisman (1992), which prohibited government-sponsored prayer at public school graduation ceremonies, and County of Allegheny v. ACLU (1989), which limited government endorsement of religious displays on public property. He went so far as to belittle the claims made by the people who brought these challenges, writing that the cases "have nothing to do with freedom of religion. There is not a single person in these cases who has been hindered or discouraged by government action from following a religious practice or way of life."
Commenting in First Things in October of 2000, McConnell called Santa Fe Independent School District v. Doe, a Supreme Court ruling barring school-sponsored prayer before public school football games "silly but destructive."
Writing in the Brigham Young University Law Review in 1993, McConnell supported teaching creationism in public schools, asserting that excluding it "is to privilege the Darwinian orthodoxy and to shelter it from critical evaluation."
McConnell criticized public education in Cardozo Law Review in 2000, writing that in schools today "the emphasis is more likely to be on egalitarianism, environmentalism, self-esteem, and other products of modern secular liberal thought. It is not evident, however, that education has become any less one-sided any less sectarian than it used to be. The dominant ideology has changed, but the use of the schools to inculcate that dominant ideology is essentially the same."
According to the Los Angeles Times (Jan. 13, 2001), McConnell praised Attorney General John Ashcroft's 1999 remarks at Bob Jones University as "beautiful." (In his remarks at the controversial school, Ashcroft said the source of America's character is "godly and eternal" and "We have no king but Jesus.") McConnell said Ashcroft "is saying freedom flourishes and the equality of human beings flourish when man is subordinate to God."
McConnell was an aggressive advocate of Robert Bork's nomination to the U.S. Supreme Court in 1987. McConnell told Newsday, "there is no more distinguished jurist in the land" than Bork and criticized the alleged alternative Supreme Court nominees who are "unknown, muddleheaded middle-of-the-roaders."
McConnell is a member of the Christian Legal Society, a board member of the right-wing Federalist Society and an advisor of the Becket Fund all groups seeking a radical abandonment of the Supreme Court's church-state doctrine.
Judges are expected to uphold a law, even if they may personally disagree with it. In at least one case, McConnell seemed to question this fundamental principle of the U.S. legal system. Writing in First Things in June-July of 1997, McConnell discussed a federal judge who acquitted a retired Catholic bishop and a priest who were arrested for blocking the entrance to an abortion clinic.
Congress had earlier passed a law making it a federal crime to physically impede women's access to such clinics. McConnell conceded that "as a matter of law" the judge was wrong but went on to praise his ruling, calling it an "act of courage in defense of conscience." He wrote, "one cannot help admiring the judge's act" and went on to compare the judge to Martin Luther King and asserted that the men who blocked the clinic deserved at best a fine for trespassing. "I'd guess a fifty-dollar fine would be about right," McConnell wrote.
Opponents note that McConnell, an evangelical Christian, is a strident opponent of legal abortion who has frequently denounced Roe v. Wade and other Supreme Court rulings upholding abortion rights. In a Jan. 22, 1998, Wall Street Journal opinion piece, he blasted the Supreme Court for its "extreme vision of abortion rights." McConnell argued that the high court can deny legal protection "to fetuses only if it presupposes they are not persons.... One can make a pretty convincing argument, however, that fetuses are persons. They are alive; their species is Homo sapiens."
In 1996, McConnell went so far as to sign an extreme anti-abortion document called "The America We Seek: A Statement of Pro-Life Principle and Concern." It called for the high court to overturn Roe and then insisted that would not be enough. Congress, the statement asserted, must pass a constitutional amendment banning all abortions, including pregnancies resulting from rape and incest. The statement claims that "abortion kills 1.5 million innocent human beings in America every year," and mourns the fact that some fathers "watch their children killed against their will" and "learn to their distress only much later that a child they would have raised is dead."
Critics also say McConnell seems to have little respect for abiding by precedent a key concept of modern law. In First Things, McConnell attacked the Supreme Court's 2000 decision upholding the well-known Miranda ruling (mandating that police read accused criminals their legal rights), calling it "benighted." In that same article, McConnell criticized the Rehnquist court for failing to overturn more precedents, writing, "In the almost thirty years since 'conservatives' have presumably controlled the Court, they have overruled only a handful of significant precedents, and usually only after they had been thoroughly undermined by the course of decision making."
Critics say that while people may disagree about issues like the rights of accused criminals, McConnell's eagerness to blithely overturn established precedent is troubling.
Can McConnell's nomination be defeated? It's a complicated question in part because McConnell, who is well-liked and well-regarded in the legal community, has support from some unlikely sources. Some law professors who back church-state separation are friendly with McConnell on a personal basis and have thrown their weight behind his nomination.
Others worry about his views. "The separation of church and state is a fundamental element in our constitutional structure," Ronald M. Dworkin, a law professor at New York University told The New York Times. "I believe senators would be justified in refusing to confirm a judicial appointment of anyone who, like Professor McConnell, wants to significantly erode that separation."
Article II, Section 2 of the Constitution gives the president the power to appoint federal judges with the "advice and consent" of the Senate. In recent years, filling vacancies on the federal courts once a routine task has become a controversial act. During the presidency of Bill Clinton, the Republican Senate blocked several nominees and refused to act on others. While the Democratic Senate has confirmed dozens of Bush judges, they have blocked two that senators felt were too extreme.
Most recently, the Senate Judiciary Committee Sept. 5 rejected a Bush appointee to the federal appeals court, Priscilla Owen, because of fears that she was a judicial activist. Seeing that vote as a sign that the Senate is unwilling to simply rubber-stamp Bush judges, AU is working hard to make sure the committee understands the radical church-state agenda of McConnell.
On Sept. 17, Americans United Executive Director Barry W. Lynn joined representatives from four other civil rights and civil liberties groups at a Washington, D.C., press conference opposing McConnell's nomination. In addition, a number of other groups announced opposition to McConnell that day.
"In truth, there are two Michael McConnells," Lynn said. "There is Michael McConnell the tenured professor, respected by his academic colleagues and widely published in scholarly journals. This is the Michael McConnell the Bush administration wants America to see and support.
"There is, however, another Michael McConnell an activist whose ideas are on the fringes of American political and judicial thought and an ideologue who lacks the temperament necessary for the federal bench," continued Lynn.
Lynn concluded, "McConnell may be the Religious Right's dream judicial nominee, but he's a nightmare for all Americans who treasure the Constitution."