(The Return of) Ignatz, by Sam Heldman

Sunday, September 15, 2002

Judicial nominations Howard Bashman notes that the next high-profile judicial nomination on deck is that of Michael McConnell to the Tenth Circuit. My prediction is that he'll get confirmed. In contrast to rejected Fifth Circuit nominee Justice Owen -- as to whom there was a wide range of legal issues on which she was rejectable as a matter of reason/ideology -- the opposition to McConnell seems pretty narrowly focussed on abortion and religious freedom/establishment issues. Those are important issues to most of us, and McConnell does seem pretty far out there on these issues; but by themselves and without consumer rights and employment rights issues too, these issues are too "hot" to be the sole basis for many Senatorial votes against a nominee, especially to "just" the Tenth Circuit (who ever knew there even was such a thing?) and so close to November. Plus which, those issues make up a tiny portion of the docket of a federal appellate court. If this were a nomination to the Supreme Court, where those issues make up a bigger portion of the docket, the outcome might well be different.

Yes, it's also said that he loves the Supreme Court's "state sovereignty" cases; but I don't think you'd get very far trying to reject a lower-court nominee on the grounds that he agrees with the Supreme Court. And yes, according to People for the American Way he's said a nutty thing about opposing one-person-one-vote caselaw; it would be tempting to go against him on this ground as payback for the rejection of Lani Guinier, but we Democrats are bigger-hearted than that. So, after giving the requisite assurances that he'll follow the law, and getting some admonishments that he'd better, and being told that this doesn't mean that he'd get confirmed to the Supreme Court, he'll get through. (This is a political prediction, not a declaration of my own position. I'll need to think a bit more before giving my final answer, but I'm leaning towards "yes" based on what I know now.) And let's try to believe all those people (including Prof. Tribe) who tell us that he's too smart and decent to have an already-made-up-mind on every type of case that comes before him.

posted by sam 7:28 AM 0 comments


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