Thursday, July 07, 2005

Mike McConnell: Numero Uno on the Bush short list

Tony Mauro of ALM’s Legal Times starts with this intro, in his analysis of Michael McConnell, a strong contender for the Supreme Court nomination by President Bush to replace Sandra Day O’Connor:

He's the latest flavor of the week on the rapidly changing menu of potential Supreme Court nominees: Michael McConnell, a mild-mannered yet controversial judge from Utah who skis and hikes and last year taught a course on Plato's "Republic."

And Mauro ends with this:

A fellow judge on the 10th Circuit, who insisted on anonymity, sees these qualities now on the bench years later.

"He's been a terrific generalist judge, without any agenda at all," this McConnell colleague said. "He works like crazy and writes beautifully. And he's the nicest guy in the world."

And, in between, Mauro discusses the pros and cons of McConnell as a Supreme Court nominee, with a lot of substance and gives a lot of reasons for President Bush to pick McConnell. Not an ideologue in the sense of following dogma without reason, McConnell has a strong, well-thought out philosophy that he uses to reason his way to conclusions, as opposed to reaching conclusions and then having a law clerk fill in the reasoning.

Notwithstanding what his critics say, the President keeps denying that he has a “litmus,” test as in “the nominee must be Pro-Life.” What Bush does say is, “I'll pick people who, one, can do the job, and people who are honest, people who are bright and people who will strictly interpret the Constitution and not use the bench to legislate from."

McConnell seems to fit Bush’s specifications for the position. He is also likely to decide cases in a way that will be pleasing to Bush and conservatives on matters of religion, school choice and reproductive choice. Sometimes his philosophy and strict construction of the Constitution will upset conservatives and the likes of Justice Scalia-- a more traditional strict constructionist, but that’s something with which conservatives and Bush can live. Moreover, the combination of Judge McConnell’s rigorous academic approach, congenial personality and his prior academic relationships will win over many liberal academics, who will stick by his side [as many did in his 10th Circuit confirmation process] in a Supreme Court confirmation battle.

Last night, Northwestern University Law School Professor Jim Lindgren, on WTTW’s Chicago Tonight, also had some kind words about Judge McConnell:

He is a very calm, reasonable person who gets along well with people. He is a religious conservative who had a distinguished practice career for Mayer Brown [Rowe and Maw in its Chicago office] and he would be sort of a peacemaker. He also got a lot of support from prominent liberal law school professors like Cass Sunstein and others when he was up for the bench before. So, he’ll have a lot of support in the law schools from liberals.

Professor Lindgren thought Bush would be likely, for the obvious reasons, to pick a minority or a female to replace O’Connor, but he thought McConnell had a good shot at replacing Justice Rehnquist, who is expected to resign either this summer or during the next Court year.

Although not a centrist or swing vote type in the Justice O’Connor or Justice Kennedy sense, McConnell’s sociable demeanor and demonstrated comfort level with liberal law school academics may give the President and his close advisors confidence that McConnell is saleable to some of the more reasonable Senate Democrats. It’s a bit of a stretch, but the sale might be made on the grounds that McConnell is someone who could play a similar role to the one that was played by the centrist, voice of moderation O’Connor-- at least in the last few years. Alternatively, the sale could be based on McConnell’s rigorous, analytical approach to the law—something law school professors and reasonable Senators should respect.

Also, in terms of avoiding a filibuster, some of the more reasonable Democratic Senators who are either reasonable by temperament or as a response to their constituents who may lean Republican, e.g., Senators Mary Landrieu [LA], Ken Salazar [CO], Ben Nelson[NE], Joe Lieberman[CT], Barack Obama[IL], Evan Bayh[IN] and Diane Feinstein[CA] might provide good targets to support a McConnell nomination, for one reason or another, or at least to oppose a filibuster. Also, McConnell might be able to keep all of the Republican Senators, even the likes of Maine’s liberal [but not identical] twins, Collins and Snowe, with their Party, helping to avoid a filibuster.

In short, McConnell is probably confirmable, will please most conservatives, is likely to give Bush the domestic legacy he seeks--with much more assurance than his good friend Alberto Gonzales. Bush would like to solidify his emerging Republican majority in the Hispanic community, but he cannot risk his domestic legacy on the uncertain views of Alberto, unless he gets a third Supreme Court selection [Justice Stevens]. Remember, people say that Gonzales is Hispanic for Souter, a Supreme Court choice that will always dog the Bush Family as their worst mistake, even worse perhaps than President George Herbert Walker Bush looking at his watch during the 1992 Presidential debates and thereby helping to toss the election to Mr. Bill. Further, there is all of that nasty "torture stuff," for which liberals in the Senate would surely feel compelled to Bork Gonzales.

And last, as I have said before, McConnell edited the law review comment I co-authored with my University of Chicago Law School classmate Eric Zolt, with the two of us fighting incessantly over whose name went first on the byline. If McConnell could arbitrate Berkowitz and Zolt [or is it Zolt and Berkowitz], the guy should be able to win over the Senate and then bring the Supreme Court together.
Jeff Berkowitz, Host and Producer of Public Affairs and an Executive Recruiter doing Legal Search, can be reached at