nebraskalawprof at yahoo.com
Fri Oct 28 07:27:08 PDT 2005
Marci is right that some conservatives do indeed have a problem with Mike McConnell. But they are wrong. I have been smoothing the waters for Mike with many of my conservative religious friends.
Here are only some of the reasons why I like Mike:
1. He is no friend of Substantive Due Process, whether of the Lochner or the Lawrence strain. He will not impose his own list of "fundamental" liberties to strike down laws duly enacted by state legislatures. He knows that the Due Process Clause codifies neither Mr. Herbert Spencer's Social Statics nor the Kama Sutra.
2. Scalia's views about free exercise (he thinks it doesn't exist) are not the views of most social conservatives. Smith is wrong and Michael knows it is wrong.
3. Michael is also a strong supporter of the Free Speech Clause, including the right to equal funding (Rosenberger and Davey) and to expressive association (Dale).
The greatest threats to religious liberty today, in my opinion, are unequal access for religious citizens to the benefits of the Welfare State, and present and future laws enacted by a society so obsessed with "tolerance" that it is willing to criminalize those who don't meet some "tolerance" litmus test (e.g. Dale; the Swedish prosecution for "hate speech" of the pastor who preached about sexual sins). Religious conservatives should embrace Michael McConnell with open arms, because he would be the strongest defender of the First Amendment on the Supreme Court. I like Mike. A lot!
Hamilton02 at aol.com wrote:
Just out of curiosity, why is McConnell considered the sort of arch-Republican that would be of interest? He was endorsed for the circuit court by numerous liberal law professors, his Harvard article about the Boerne case made him sound much closer to Souter than Scalia/Rehnquist/O'Connor on federalism, and he takes Brennan's liberal position on the Free Exercise Clause, in contrast to Scalia's conservative view. Finally, in his O Centro decision in the 10th Circuit, he endorsed a view of judging that looks a lot like legislating from the bench than a strict constructionist would permit. I know the answer is that he is opposed to Roe v. Wade, but if that is the answer, we need not debate anyone's conservative credentials, but only need figure out where they stand on that one decision, right?
In a message dated 10/27/2005 4:34:42 P.M. Eastern Standard Time, thai at ou.edu writes:
How about this for a Roveian strategy:
1. Nominate Brown first.
2. Nominate McConnell if sheâs filibustered.
Could be a win-win as far as satisfying his right-wing base. If Brown is filibustered, then the base will have gotten the battle they wanted based on ideology, and Bush will have an easier time nominating another white male candidate, who by contrast would be easier to confirm.
Joseph T. Thai
University of Oklahoma College of Law
thai at ou.edu
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner
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