The sky is falling!

By Thomas Jipping

“The sky is falling, the sky is falling, the extremists are coming, the extremists are coming.” The leftists attacking President Bush’s judicial nominees are at it again. It’s tough to believe that anyone still takes them seriously.

Mr. Bush nominated University of Utah law professor Michael McConnell to the U.S. Court of Appeals for the 10th Circuit on May 9, 2001. If you’re counting, today marks 500 days since that first batch of 11 appeals-court nominations. The previous three presidents saw their first 11 confirmed in an average of 81 days. After 500 days, less than half of Mr. Bush’s first nominees have had even a Judiciary Committee hearing.

Like other nominees before him, Professor McConnell received a unanimous “well qualified” rating from the liberal American Bar Association. The ABA’s criteria include compassion, open-mindedness, freedom from bias, and commitment to equal justice under the law. That once made a difference to Senate Democrats, who said the ABA’s rating was the “gold standard” for evaluating nominees.

After graduating at the top of his law school class, Professor McConnell clerked for two legendary liberal activist judges, J. Skelly Wright on the U.S. Court of Appeals and William Brennan on the U.S. Supreme Court. He represented Americans United for Separation of Church and State in an important religion case before the U.S. Supreme Court and has filed briefs in other cases on behalf of the Anti-Defamation League, American Jewish Committee, and (gulp) People for the American Way. He co-chairs the Emergency Committee to Defend the First Amendment with ACLU leader Norman Dorsen.

More than 300 professors from more than 90 law schools support his nomination, including leading leftists such as Cass Sunstein from the University of Chicago and Sanford Levinson from the University of Texas. Professor Sunstein was the lead Democrat witness in Sen. Charles Schumer’s June 2001 hearing promoting the use of ideology in judicial selection. President Clinton’s Acting Solicitor General Walter Dellinger praised the McConnell nomination and Elena Kagan, a Clinton appeals court nominee and now a Harvard law professor, wrote “in strong support” of McConnell as “thoughtful, open-minded and even-handed in his approach to legal questions.”

I know what you’re thinking. This sounds more like the pedigree a Clinton nominee might have. You’d think that the leftists who attacked previous Bush nominees as extremist and “out of the mainstream” would not damage their credibility by attacking Professor McConnell.

You’d think that, but you’d be wrong. The National Abortion and Reproductive Rights Action League says Professor McConnell’s views are “far beyond the fringes of mainstream thought.” Beyond even the fringes. People for the American Way, the professor’s former client, says he is “well outside the mainstream.” And Planned Parenthood condemns him as a “radical ideologue.”

These leftists have settled into a certain rhythm in opposing Mr. Bush’s nominees. They listen for a nominee’s name and the court for which he has been chosen, do a “find-and-replace” on their word processors, and spew the same propaganda reports and memos attacking him for the same things as the last one.

They attack Professor McConnell for criticizing the Supreme Court’s 1973 Roe vs. Wade decision as “an embarrassment to those who take constitutional law seriously.” Professor McConnell is in some pretty diverse company on this one. Professor Albert Alschuler, who helped feminist lawyer Sarah Weddington prepare to argue Roe itself back in 1973, wrote recently in the Chicago Tribune that “virtually every constitutional scholar who has written on the subject” agrees with Professor McConnell that Roe is constitutional bunk. Oops.

Professor John Hart Ely, while strongly pro-abortion, nonetheless writes that the decision does not even pretend to be constitutional law. And then there’s Professor Tribe. Leftists love Professor Tribe. Al Gore’s lawyer, the guy helping Senate Democrats today tube Mr. Bush’s judicial nominees, wrote in a 1973 article that “behind [Roe’s] own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Professors Alchuler, Ely and Tribe all support Professor McConnell’s nomination.

The Human Rights Campaign, America’s largest homosexual group, opposes Professor McConnell because he wrote the brief for the Boy Scouts in the Supreme Court case that protected their right to determine their own message and membership. They say that his “dangerous positions make him unfit to serve” as a federal judge.

The extremists aren’t coming, they’re already here. They are the groups mindlessly opposing even the most distinguished, qualified and broadly supported Bush nominees. Why does anyone take them seriously anymore?