Michael McConnell
Judge of the United States Court of Appeals for the Tenth Circuit
In office
November 26, 2002 – August 31, 2009
Nominated byGeorge W. Bush
Preceded byStephen H. Anderson
Succeeded byScott Matheson Jr.
Personal details
Born
Michael William McConnell

(1955-05-18) May 18, 1955 (age 68)
Louisville, Kentucky, U.S.
EducationMichigan State University (BA)
University of Chicago (JD)

Michael William McConnell (born May 18, 1955) is an American jurist who served as a United States circuit judge of the United States Court of Appeals for the Tenth Circuit from 2002 to 2009. Since 2009, McConnell has been a professor and Director of the Stanford Constitutional Law Center at Stanford Law School.[1] He is also a senior fellow at Stanford University's Hoover Institution, and Senior Of Counsel to the Litigation Practice Group at Wilson Sonsini Goodrich & Rosati. In May 2020, Facebook appointed him to its content oversight board.[2] In 2020, McConnell published The President Who Would Not Be King: Executive Power under the Constitution under Princeton University Press.

Biography

McConnell graduated from Michigan State University's James Madison College with a Bachelor of Arts degree in 1976. He received his Juris Doctor (J.D.) from the University of Chicago Law School in 1979, where he was an editor of the University of Chicago Law Review.

After law school, McConnell was a law clerk for Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit from 1979 to 1980 and for U.S. Supreme Court justice William J. Brennan Jr., from 1980 to 1981. He was an assistant general counsel at the Office of Management and Budget from 1981 to 1983 and an assistant to the Solicitor General from 1983 to 1985. From 1985 to 1996 McConnell was a professor at the University of Chicago Law School, where he brought Barack Obama on a fellowship after being impressed with a suggestion Obama, the Harvard Law Review president, had made about one of McConnell's articles.[3] He has been a professor at the University of Utah S.J. Quinney College of Law and a visiting professor at Harvard Law School[4] and the New York University School of Law.

Scholarship

As a law professor, McConnell has published a variety of legal articles and edited several books. As a lawyer, he has argued cases in federal courts of appeals and before the Supreme Court, including a 5–4 victory in Rosenberger v. University of Virginia.[5] He is widely regarded as one of the preeminent constitutional law scholars on the Free Exercise and Establishment Clauses.[6][7]

In 1996, McConnell signed a statement supporting a constitutional amendment to ban abortion, which read, "Abortion kills 1.5 million innocent human beings in America every year. ... We believe that the abortion license is a critical factor in America's virtue deficit."[8]

As a respected constitutional scholar during his law school tenure, McConnell contended that originalism is consistent with the Supreme Court's 1954 desegregation decision Brown v. Board of Education, as opposed to critics of originalism who argue that they are inconsistent.[9][10] He has likewise argued that the Court's decision in Bolling v. Sharpe was correct but should have been reached on other grounds, as Congress never "required that the schools of the District of Columbia be segregated."[11]

McConnell was highly critical of the Supreme Court's decision in Bush v. Gore:

I imagine that Gov. Bush and his supporters will put on a brave face and defend this decision, but I cannot imagine that there is much joy in Austin tonight. The Supreme Court, with all the prestige of its position in American public life, could have brought closure to this matter. But instead, by straddling the fence, the court has produced a combination of holdings that can please no one.[12]

McConnell expressed skepticism on First Amendment grounds about restrictions on religious exercise imposed during the COVID-19 pandemic.[13][14]

In 2021, McConnell's argument that Trump could be tried by the Senate after he left office because the second impeachment occurred while he was in office was frequently cited in Senate debates and in the media.

Federal judicial service

On September 4, 2001, President George W. Bush nominated McConnell to the United States Court of Appeals for the Tenth Circuit. The United States Senate confirmed him unanimously on November 15, 2002, by voice vote. He received his commission on November 26, 2002. He resigned from the bench on August 31, 2009.[15]

Notable cases

While on the Tenth Circuit, McConnell wrote scores of judicial opinions. The Supreme Court reviewed four cases in which McConnell wrote an opinion; in each case, the Court reached the same result as McConnell. First, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006),[16] a case involving the religious use of a hallucinogenic tea, the Supreme Court affirmed 8–0 a Tenth Circuit en banc decision to which Judge McConnell wrote a concurring opinion. Second, in Fernandez-Vargas v. Gonzales (2008),[17] a case involving the retroactive application of a statutory provision limiting appeals from immigration removal orders, the Supreme Court affirmed 8–1 a Tenth Circuit panel decision written by Judge McConnell. Third, in Begay v. United States (2008),[18] a case about whether a felony conviction for driving under the influence is a crime of violence for purposes of the Armed Career Criminal Act, the Supreme Court reversed 6–3 a Tenth Circuit panel decision from which McConnell dissented. Fourth, in Pleasant Grove City v. Summum (2009),[19] a case involving whether the presence of a Ten Commandments monument on government property gave another religion a First Amendment right to place its own monument on the same property, the Supreme Court unanimously reversed a Tenth Circuit panel decision that McConnell had challenged by writing a dissent from the denial of rehearing en banc.

Significant opinions by McConnell include:

Supreme Court speculation

McConnell was mentioned as a potential nominee to the Supreme Court during the Bush administration. In June 2005, amid expectations that Chief Justice William H. Rehnquist would retire at the end of the Court's term, some sources cited McConnell as a frontrunner for Rehnquist's seat, which ultimately went to John Roberts. Professor Stephen B. Presser of Northwestern University School of Law argued[22] that McConnell was "high on the White House's short list" because:

[McConnell] does believe that the Supreme Court has gone too far in reading the total separation of church and state into the Constitution, and because he ... understands that Roe v. Wade has no firm constitutional foundation. He might be acceptable to the left not only because so many liberal professors support him, but also because he has been public in his criticism of Bush v. Gore and the impeachment of President Clinton.

McConnell was also mentioned as a possible Supreme Court nominee in a John McCain or Mitt Romney presidency.[23][24]

Testimony on constitutional term limits for Supreme Court justices

On June 30, 2021, McConnell provided testimony to the Presidential Commission on the Supreme Court of the United States on the dangers of increasing the Court's size. He proposed a constitutional amendment to address such dangers, including an 18-year term limit on justices and appointment of a justice in each odd year, unless the Senate voted against the appointment.[25][26]

Highlights of his testimony include:

Any attempt to increase the size of the Court would be widely, and correctly, be regarded as a partisan interference with the independence of the Court.... It is no exaggeration to say that this would destroy one of the central features of our constitutional system, the independent judiciary.[25][26]

This [McConnell’s] proposal, if adopted, would have several salutary effects. It would make the power of the president to name Supreme Court justices regular, fair, and consistent, and thus likely would lower the political stakes of each nomination. The political balance of the Court would reflect the opinions of the people over time as expressed in their choice of presidents and senators, rather than the happenstance of health or accident or the strategic timing of the justices.[25][26]

See also

References

  1. ^ Hill, Kashmir (May 5, 2009). "Musical Chairs". Above the Law. Retrieved May 5, 2009.
  2. ^ "Facebook names first members of oversight board that can overrule Zuckerberg". Reuters. May 7, 2020. Retrieved May 8, 2020.
  3. ^ Kantor, Jodi (July 30, 2008). "Teaching Law, Testing Ideas, Obama Stood Slightly Apart". The New York Times. Retrieved October 27, 2008.
  4. ^ Creation of the Constitution 2006 and 2008 course listings
  5. ^ McConnell's oral argument in Rosenberger.
  6. ^ Daniel Troy, "Oral Argument in Wileman Brothers Case Leaves Open Compelled Speech Question", Court Watch, Winter 1997
  7. ^ Statement of Senator Orrin Hatch, September 18, 2002
  8. ^ Bazelon, Emily; "The Front-Runners on Roe: What Bush's shortlist thinks about abortion," Slate, July 5, 2005
  9. ^ Ramesh Ponnuru, "Originalist Sin: Conservatives, the Constitution, and affirmative action," National Review, March 10, 2003
  10. ^ Brian C. Anderson, "Why the Battle for the Court Will Be Nasty," City Journal, 2002 Summer, Vol. 12 No. 3, pp. 64–76.
  11. ^ Michael McConnell in What Brown v. Board of Education Should Have Said, p. 168, ed. Jack Balkin (NYU Press 2002).
  12. ^ McConnell, Michael (2000-12-13) What Now?, Slate.com
  13. ^ McConnell, Michael W.; Raskin, Max (April 21, 2020). "Opinion | If Liquor Stores Are Essential, Why Isn't Church?". The New York Times. ISSN 0362-4331. Retrieved June 3, 2021.
  14. ^ McConnell, Michael W.; Raskin, Max (December 1, 2020). "Opinion | The Supreme Court Was Right to Block Cuomo's Religious Restrictions". The New York Times. ISSN 0362-4331. Retrieved June 3, 2021.
  15. ^ Michael W. McConnell at the Biographical Directory of Federal Judges, a publication of the Federal Judicial Center.
  16. ^ 546 U.S. 418 (2006).
  17. ^ 548 U.S. 30 (2008).
  18. ^ 553 U.S. 137 (2008).
  19. ^ 555 U.S. 460 (2009).
  20. ^ Recent Case: Tenth Circuit Clarifies Causation Standard for Subordinate Bias Claims, 120 Harv. L. Rev. 1699 (2007)
  21. ^ "BCI COCA-COLA BOTTLING CO. TO PAY $250,000 TO BLACK WORKER FOR RACE DISCRIMINATION". United States Equal Employment Opportunity Commission. April 15, 2008. Retrieved October 20, 2017.
  22. ^ Who Could Win Every senator's Vote?
  23. ^ Weiss, Debra (April 23, 2012). "The Guesswork Begins: Who Would Romney Appoint to the Supreme Court?". Retrieved June 22, 2012.
  24. ^ Biskupic, Joan (October 23, 2008). "For divided high court, two potential legacies". USA Today. Retrieved October 25, 2008.
  25. ^ a b c National Law Journal (June 30, 2021). "Inside the Biden SCOTUS Commission’s First Marathon Day-of-Testimony." Retrieved July 17, 2021.
  26. ^ a b c McConnell, Michael W. (June 30, 2021). "Written Testimony before the Presidential Commission on the Supreme Court of the United States", www.whitehouse.gov. Retrieved July 17, 2021.

Further reading

His academic scholarship includes, among other publications, the following:

  • The Booker Mess, 83 Denv. U. L. Rev. 665 (2006).
  • "Book Review: Active Liberty: A Progressive Alternative to Textualism and Originalism?", 119 Harv. L. Rev. 2387 (2006).
  • The Ethics of Etiquette: An Introduction to a Symposium in Honor of Dean Lee E. Teitelbaum, 2006 Utah L. Rev. 1.
  • Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105 (2003).
  • Religious Freedom, Separation of Powers, and the Reversal of Roles, 2001 BYU L. Rev. 611.
  • Two-and-a-Half Cheers for Bush v. Gore, 68 U. Chi. L. Rev. 657 (2001).
  • The Supreme Court's Earliest Church-State Cases: Windows on Religious-Cultural-Political Conflict in the Early Republic, 37 Tulsa L. Rev. 7 (2001).
  • State Action and the Supreme Court's Emerging Consensus on the Line between Establishment and Private *Religious Expression, 28 Pepp. L. Rev. 681 (2000).
  • The Redistricting Cases: Original Mistakes and Current Consequences, 24 Harv. J. L. & Pub. Pol'y 103 (2000).
  • The Problem of Singling Out Religion, 50 DePaul L. Rev. 1 (2000).
  • The New Establishmentarianism, 75 Chi.-Kent L. Rev. 453 (1999).
  • Why is Religious Liberty the First Freedom, 21 Cardozo L. Rev. 1243 (1999).
  • Five Reasons to Reject the Claim That Religious Arguments Should Be Excluded from Democratic Deliberation, 1999 Utah L. Rev. 639 (1999).
  • Freedom From Persecution or Protection of the Rights of Conscience?: A Critique of Justice Scalia's Historical *Arguments in City of Boerne v. Flores, 39 William and Mary Law Review 819 (1998).
  • Tradition and Constitutionalism before the Constitution, 1998 U. Ill. L. Rev. 173.
  • Equal Treatment and Religious Discrimination in Equal Treatment of Religion in a Pluralistic Society, Stephen V. Monsma and J. Christopher Soper, eds. (William B. Eerdmans Publishing Co., 1998).
  • Governments, Families, and Power: A Defense of Educational Choice, 31 Conn. L. Rev. 847 (1998).
  • Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harvard Law Review 153 (1997).
  • The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's 'Moral Reading' of the Constitution, 65 Fordham Law Review 1269 (1997).
  • "Believers As Equal Citizens," Law and Religion: Obligations of Democratic Citizenship and Demands of Faith Symposium, Brown University (April 1997).
  • The Right to Die and the Jurisprudence of Tradition, 1997 Utah Law Review 665.
  • Establishment and Toleration in Edmund Burke's "Constitution of Freedom" 1995 Supreme Court Review 393.
  • Segregation and the Original Understanding—A Reply to Professor Maltz, 13 Constitutional Commentary 233 (1996).
  • The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's Moral Reading of the Constitution, 65 Fordham L. Rev. 1269 (1996).
  • The Originalist Case for Brown v. Board of education, 19 Harv. J. L. & Pub. Pol'y 457 (1995).
  • (May 1995). McConnell, Michael W. (1995). "Originalism and the desegregation decisions". Virginia Law Review. 81 (4): 947–1140. doi:10.2307/1073539. JSTOR 1073539.
Legal offices Preceded byStephen H. Anderson Judge of the United States Court of Appeals for the Tenth Circuit 2002–2009 Succeeded byScott Matheson Jr.