Judge Michael McConnell is shaping up to be the next David Souter, the notorious Supreme Court nominee of the first President Bush who betrayed Bush’s supporters. Justice Souter lacked a written record and conservatives mistakenly trusted Bush’s advisers.
History is repeating itself with the recent pressure on Bush to appoint Judge McConnell to the Supreme Court. Unlike Justice Souter, McConnell has written voluminously and his backers claim those writings prove him to be conservative.
The selection of McConnell would be another cruel ruse against the pro-lifers who have worked hard for 15 years to prevent another Souter mistake. Judge McConnell is every bit as hostile to conservative legal principles as Souter turned out to be.
President Bush would not be sitting where he is today without campaigning on his support of Justices Scalia and Thomas and promising to appoint justices like them. Any violation of that promise would be a breach as severe as his father’s infamous breaking of the “No New Taxes” pledge.
Even McConnell’s most ardent promoters agree that McConnell is no Scalia. Unlike Scalia, McConnell takes a libertarian approach to freedom of religion, arguing that virtually anything should be legal if cloaked in the name of religion, ranging from smoking drugs to polygamy.
At first blush, that view may seem attractive to the Religious Right. But McConnell’s legal philosophy is actually hostile to government expressions of faith, such as invocations at graduation or perhaps, eventually, the Pledge of Allegiance.
In 1992, McConnell declared as “wrong” the conservative view “that the government should have broader latitude to give voice to the religious sentiments of the community.” McConnell’s libertarian view gives one person the power to censor hundreds, in order for that one person to be free from hearing a prayer that he does not like.
Conservatives are being told to overlook that issue, as important as it is, because McConnell is supposedly pro-life. Like the claims of John Kerry, Hillary Clinton and Mario Cuomo, McConnell may be personally pro-life.
But McConnell would not vote to overturn Roe v. Wade. In a 1997 law review article, McConnell insisted that “the abortion right itself remains secure.”
In McConnell’s sworn testimony before the Senate in 2002, McConnell volunteered that Roe v. Wade is “as thoroughly settled as any issue in current constitutional law.” That is not the comment of someone who thinks it should be overturned.
Indeed, McConnell appears to have carefully avoided saying that Roe v. Wade should be overturned. Like Bill and Hillary Clinton, McConnell has a knack for criticizing abortion and Roe v. Wade without supporting what the Supreme Court should do: overturn it.
Much is made of the 1996 Statement of Pro-Life Principle and Concern, in which McConnell joined others by signing a personal endorsement of pro-life values. However, McConnell did not sign a statement calling for the Supreme Court to overturn Roe v. Wade.
Instead, all that McConnell endorsed on that point was the following meaningless provision: “the Supreme Court could reject the ‘central finding’ of Roe v. Wade, that abortion-on-demand is required by an unenumerated ‘right to privacy’ protected in part by the 14th Amendment.”
Even the Clintons and John Kerry would agree, as a factual matter, that the Supreme Court could take such action. But McConnell did not agree that the Supreme Court should take that action.
RINOs (Republicans in Name Only) do not want the Supreme Court to overturn Roe and they are fine with persons like McConnell who have supported the virtually impossible process of amending the Constitution. But Roe was the mistake of the court, and a nominee should be willing to correct that mistake from the bench. McConnell is not.
To the contrary, the Atlantic Monthly said of McConnell’s Senate testimony that “he virtually bent over backward pledging fealty to legalized abortion.” And this is the person Bush is going to pick for the millions of voters who crossed over to him for the life issue?
The more one looks at McConnell’s legal views, the worse they seem. The biggest issue before the high court in the fall is whether Congress can cut off federal funding of schools that exclude military recruiters.
The Solomon Amendment, signed even by President Clinton, told schools that if they kick military recruiters off their campuses, then federal funding would be withdrawn. An appellate court declared that law unconstitutional, and the Supreme Court has agreed to review it.
This is a slam dunk for conservatives, who assert the right to control how our money is spent. But McConnell is hostile to government selectively funding one activity while denying funds to another.
McConnell packaged his view in the attractive form of wondering whether government must fund religious schools. But his philosophy goes far beyond religion, and could compel government to fund many activities that its citizens oppose.
Why the big push for McConnell, who has so much less judicial experience than many qualified candidates? Led by the media, the lobbying has been intense for Bush to pick McConnell.
Yet at least a dozen other candidates for the Supreme Court plainly are willing to overturn Roe v. Wade and any other liberal folly of the past. One, Edith Jones, was passed over by the first President Bush to pick Souter.
The same forces that brought us Souter are now at work to find another nominee to preserve Roe. With 55 Republicans ready to confirm whomever Bush picks, however, he has no excuse for letting his supporters down by picking McConnell.
Andy Schlafly is the general legal counsel for Association of American Physicians & Surgeons.