Wednesday, November 10, 2004

Byron York on Michael McConnell 2 years ago

Byron York on the confirmation of Michael McConnell to the 10th circuit, here, here and Here.

York wrote about why the Dems went easy on McConnell:

Why do the opponents of the president's judicial picks seem to be letting up this time? The reason became apparent at the Justice Department news conference. Opposition to the White House's judicial nominees usually comes from three places: liberal interest groups, the liberal legal academic community, and liberal Democrats on the Judiciary Committee. In the McConnell case, one of those groups, the law professors, who in the past have been staunch opponents of many Bush nominees, strongly supports McConnell.

In fact, three high-profile liberal professors - the University of Chicago's Cass Sunstein, Harvard's Elena Kagan, and the University of Texas's Douglas Laycock - joined Dinh in speaking to reporters (Sunstein and Kagan by conference call). All vouched for McConnell. "He is excellent and not an ideologue," said Sunstein. "He is not an ideologue; he will adhere to the law," said Kagan. "He's not an extremist or an ideologue," said Laycock. Justice officials also handed out a letter supporting McConnell signed by 300 law professors.

What was perhaps most impressive about the news conference was that none of the professors worried much about McConnell's opposition to the Roe v. Wade decision, which has so often been a key factor in judicial nomination battles. McConnell authored a 1998 op-ed in the Wall Street Journal entitled, "Roe v. Wade at 25: Still Illegitimate." In 1994, he wrote in a Michigan Law Review article that "abortion is an evil, all too frequently and casually employed for the destruction of life." He has also endorsed a pro-life constitutional amendment. Any one of those things might be enough to kill a nomination.

When asked why he supports a man so opposed to Roe, Sunstein explained that McConnell's views on abortion are just one part of "a complex record." McConnell's views on a variety of legal issues, Sunstein said, were widely varied - and sometimes surprising. "The people who say he is staunchly pro-life are right," Sunstein said, adding that one might well oppose McConnell, "if abortion is the only thing you care about." But McConnell, Sunstein said again, is no ideologue. "If you're an ideologue, it means you predictably follow a party line," Sunstein explained, and a true conservative ideologue "thinks the Constitution overlaps a lot with the Republican party platform of 1980." McConnell, on the other hand, "is too unpredictable - he doesn't follow party lines."

Based on York's reasoning, McConnell's lack of a judicial record was to his advantage. He would not have the going for him during confirmation if he was nominated to the Chief Justice's position. Also, there's no way to know if the same liberal law prof's would be as vocal in their support for him, or hushed up by the lefties in the Senate and the lefty interest groups who pay big dollars for the Democrat's obstructionism. During Bush's first term, there was so much obstruction that a couple of conservatives falling through the cracks was inevitable, especially if the liberals in academia were supporting the nominee. But, with a SCOTUS nominee, all eyes will be on that nominee, and the liberals in academia will be outvoted, or outspent by the NOW gang, PFAW, NAACP, big labor, the trial lawyers, and every other lefty group that owns the Democrats on the judiciary committee.

Another thing McConnell won't have going for him is his skin color. McConnell is white, and no racial group that might plausibly support a conservative minority, or more accurately, sit on their hands as they did during Clarence Thomas's confirmation, would be helpful. They'd simply join the chorus of condemnation of any and all things conservative. Naturally, none of these things have anything to do with McConnell's qualifications to be a jurist. That's the problem with the politicization of the judicial nomination process, and why judicial restraint is so crucial.