The New York Times is reporting this morning that the White House is expecting Rehnquist to retire at the end of the current term in June, if he can hold on that long, and they are preparing for that event. They also quote sources as saying that 10th Circuit Court Judge Michael McConnell has rapidly moved up the lists because, while he is solidly conserative, he also garnered an enormous amount of support from liberal law profs during his confirmation hearings for his current post. Groups with which I am normally allied, such as Americans United, publicly opposed his nomination to the 10th circuit and point to his strongly conservative views on abortion and gay rights as justification for that opposition. He certainly has made a number of public statements on church/state separation to tell me that he is decidedly on the other side of that issue from me, though we have our agreements as well. I agree with him that vouchers are not unconstitutional, and I agree with him that incidental aid to religious groups is also not unconstitutional (he successfully argued the Rosenberger case before the Supreme Court, which said that if a university offers subsidies to student groups for on-campus publications, it has to support religious student groups as well as non-religious ones in that regard). My biggest difficulty with him was his enthusiastic support for Robert Bork’s nomination, something that sends up huge red flags for me. And he has publicly supported the teaching of creationism, saying that not teaching it “is to privilege the Darwinian orthodoxy and to shelter it from critical evaluation.” Again, major red flags for me.
On the other hand, McConnell is enormously well respected as thoughtful, fair and not a dogmatist even by his far more liberal colleagues. Akhil Amar has been quoted as saying that McConnell is “America’s pre-eminent scholar of religious liberty” and Cass Sunstein calls him “one of the best constitutional scholars in the country. He is conservative, but he is not an ideologue.” Likewise, he has the support of prominent liberal legal scholars like Lawrence Tribe and Walter Dellinger. And he certainly cannot be regarded as a political partisan, having opposed the impeachment of Bill Clinton and criticized the Supreme Court’s Bush v. Gore decision in 2000 (he argued that the recount should be allowed to continue). So while he is pretty solidly conservative, he appears to be thoughtfully so rather than reflexively so.
I’m certainly open to hearing more of his record to decide whether to support such a nomination, but at this point I’m leaning toward saying let him on the court regardless of my obvious disagreements with him in a number of areas. And as he would likely replace the already conservative Rehnquist, it would not change the makeup of the court. Any thoughts from the legal folks who read this blog?