Measuring McConnell


The President will be nominating a new Chief Justice of the United States within a year. While some might deny it, Chief Justice Rehnquist will not be on the court by this time next year. His health is deteriorating rapidly.

Several pundits have suggested nominating Justices Thomas or Scalia to the top spot. First, it is doubtful that either would want to go through another confirmation hearing, though seeing Scalia tear Pat Leahy a new one would be worth the price of admission. Second, historically Presidents select someone off the Court to fill the top spot. The selection of Rehnquist, already on the Court, was the exception to the rule.

Let me venture a suggestion. There is one jurist who the Democrats obstructed, but who ultimately was confirmed by the Senate and sworn in as a judge for the Tenth Circuit Court of Appeals. He is supported by legal scholars like Eugene Volokh on the near right side and Cass Sunstein on the left.

Judge Michael McConnell, formerly a law professor, is a brilliant legal scholar. Judge McConnell is despised by People for (Against) the American Way for being

on record supporting broad, new legal restrictions on a woman’s right to choose even under Roe v. Wade and its progeny. While his ultimate goal is to reverse Roe and provide constitutional protection to embryos as persons, McConnell has endorsed and provided legal support for a “broad-based legal and political strategy” to “regulate the abortion industry in a number of ways”

Nonetheless, as Stuart Buck points out,

McConnell also has the advantage of being known by left and right as a soft-spoken, modest, conciliatory, and generous man with an extraordinarily gifted mind. On his nomination to the 10th Circuit, more than 300 academics — including liberals such as Cass Sunstein, Larry Tribe, Akhil Amar, Saul Levmore, Elana Kagan, Suzanna Sherry, Tony Kronman, and Larry Kramer, to name a few — supported him “enthusiastically.”

McConnell would not, should the President chose to replace Rehnquist with him, alter the balance of power in the Court. He would be a fresh, young voice in favor of conservative jurisprudence.

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Erick Erickson

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By Erick Erickson

Erick Erickson

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