September 18, 2002
The Honorable Patrick J. Leahy
Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, D.C. 20510
Dear Chairman Leahy:
We, the undersigned civil rights, women’s rights, and human rights organizations, write to express our opposition to the confirmation of Michael W. McConnell to the United States Court of Appeals for the Tenth Circuit. Professor McConnell’s record as a law professor and advocate reveals him to be an extremely ideological and conservative activist with a particularly troubling record in many areas important to our communities.
We strongly believe that the composition of the federal judiciary is a civil rights issue of profound importance to all Americans because the individuals charged with dispensing justice in our society have a direct impact on civil rights protections for all. As such, the federal judiciary must be perceived by the public as an instrument of justice, and the individuals who are selected for this branch of government must be the embodiment of fairness and impartiality.
Circuit courts play an increasingly important role in our federal judiciary. The Supreme Court hears only about 80 cases each year. The federal appellate courts hear tens of thousands of cases. The circuit courts are, therefore, for most people, the courts of last resort. Consequently, nominees to these courts merit close scrutiny. Not only should nominees be able to demonstrate that they will be impartial arbiters of the law, litigants should reasonably be able to feel that they are receiving a fair and impartial hearing. Because of Professor McConnell’s well known, long-standing and vigorous opposition to many of the civil rights and liberties that are important to the communities we represent, we do not believe it possible for him either to be an impartial arbiter on important questions of civil and constitutional rights or for litigants in his court to have confidence that he would be impartial. Our exhaustive and careful review of Professor McConnell’s record has left us with little alternative but to oppose his confirmation.
During his many years as an academic and zealous conservative activist, McConnell has written numerous articles that clearly reflect his strong personal views on a number of civil rights and constitutional questions. He has supported efforts to limit congressional authority to protect civil rights and has argued for weakening both statutory and constitutional protections against discrimination based on race, gender and sexual orientation. McConnell’s record not only fails to show a commitment to civil rights progress, but also demonstrates active opposition to key civil rights principles.
For example, McConnell has sharply criticized the Supreme Court’s 8-1 decision in Bob Jones University v. United States, 461 U.S. 574 (1983), which held that the IRS may deny tax-exempt status to a religious school with racially discriminatory policies, for failing to allow the university’s religious claims to trump civil rights protections. In a 1989 article, McConnell wrote that the “racial doctrines of a Bob Jones University” should have been “tolerated” because they were “church teachings.” More recently, McConnell specifically included the Court’s decision to allow the government to “revoke tax-exempt status for fundamentalist schools that forbid interracial dating” as one of the several “egregious examples” of the Court’s failure to “intervene to protect religious freedom from the heavy hand of government.” McConnell has long advocated this legal stance, which would also seem to permit a government-funded religious social service organization to engage in racial discrimination in hiring for government-paid positions or even in the provision of services, as long as the racial discrimination was under the guise of a religious tenet. And in the context of school vouchers, McConnell has stated that religious schools that accept government-funded vouchers should be permitted to discriminate based on religion in their admissions criteria. His views would also, presumably, allow federal financial support for elementary and secondary schools that discriminate based on race, if such a policy – like the discrimination at issue in the Bob Jones case — is based on the school’s religious teachings. McConnell’s extreme legal theories in this area invite a new loophole in laws prohibiting racial discrimination by protecting the practices of religious groups that have a racially discriminatory effect.
McConnell’s views on the government’s role in combating sex discrimination are also troubling. In a recent article, McConnell raised concerns about the Supreme Court’s 1984 decision in Roberts v. United States Jaycees, 468 U. S. 609 (1984), in which the Court ruled that the Jaycees’ policy of explicitly excluding women from membership was illegal under anti-discrimination laws and could not be justified as freedom of association protected by the First Amendment. While agreeing that the government “might” be justified in applying such laws to the Jaycees itself, because it was “essentially a business networking organization,” McConnell argued that “most private noncommercial groups should be allowed to constitute and govern themselves,” despite anti-bias laws. If accepted, McConnell’s argument would bar application of other anti-discriminations law against a broad group of private entities.
McConnell has also asserted controversial views on fundamental principles related to the right to vote. In an article prepared for a Federalist Society conference in 2000, McConnell lambasted the fundamental constitutional principle of “one person one vote,” arguing that the Court’s “theory” in such cases “was wrong in principle and mischievous in its consequences.” This view undermines one of the most important civil rights principles recognized by the Supreme Court under the Fourteenth Amendment: that election districts must be nearly equal in population in order to protect the equality of all voters in our democracy. Even McConnell has recognized that his views on this issue are far outside the mainstream. “There are no dissenters from that proposition on the Supreme Court, and there have been none for decades,” he acknowledged. This recognition makes McConnell’s attack on this fundamental principle all the more troubling.
There is no question that Professor McConnell is an accomplished academic and an effective advocate. However, there is serious reason to question his ability to impartially follow the law in cases where he has strong personal views. For example, Professor McConnell has repeatedly stated that the Supreme Court was wrong in its decision in Roe v. Wade. He has called Roe v. Wade “an embarrassment,” of “questionable legitimacy” and a “grave legal error.” Professor McConnell has also written and spoken on his opposition to the Freedom of Access to Clinic Entrances Act (FACE) and his belief – in contrast to every federal appellate court that has considered the question – that it is unconstitutional. In a recent article, he expressed admiration for a district court judge who refused to apply FACE because the defendants did not act with “bad purpose,” an element not found in the statute. McConnell’s statements of admiration for the “judicial nullification” of a federal statute that he does not agree with speaks volumes about his inability to fairly and impartially apply a range of civil rights statutes that may conflict with his views.
McConnell has also severely criticized yet another Supreme Court precedent crucial to the protection of civil rights, Griggs v. Duke Power Co., 401 U.S. 217 (1971). In Griggs, the Supreme Court unanimously recognized that employment practices that have a disparate impact in excluding minorities or women are illegal under Title VII unless they are justified as promoting a business necessity. The impo