Saturday, September 24, 2005

Orrin Hatch on McConnell

Senator Orrin Hatch on McConnell:


PRESENTATION OF MICHAEL W. MCCONNELL, NOMINEE TO BE CIRCUIT
JUDGE FOR THE TENTH CIRCUIT BY HON. ORRIN HATCH, A U.S. SENATOR
FROM THE STATE OF UTAH

Senator Hatch. Mr. Chairman, I am proud to be here today to introduce and
to reiterate my strongest support for Professor McConnell, who
enjoys support from lots of powerful people, Republican and
Democrat, conservative and liberal, and men and women--notably,
including well-known law professors Laurence Tribe, Cass
Sunstein, Akhil Amar, and Walter Dellinger, who are certainly
no strangers to this committee or its members.

Professor McConnell, in my opinion, cannot be pegged as an
ideologue in any sense of the word. He is an honest man. He
calls it as he sees it, and he is beholden to no one and to no
group. He has taken scholarly positions and has brilliantly
argued on issues that at times have been opposed by
conservatives and at times opposed by liberals. As the
committee knows well, Professor McConnell has publicly opposed
impeachment of President Clinton. He has testified against a
school prayer amendment, as my colleague has said. He has
represented, without charge, some left-of-center groups such as
People for the American Way and Americans United for the
Separation of Church and State, and he has been described by
Supreme Court Justice Antonin Scalia as ``the most prominent
scholarly critic'' of Scalia's approach to the Free Exercise
Clause. He is also a brave man. He has criticized my
constitutional amendment on the flag.

He has taken these positions and has earned the broadest
respect of his peers, liberal and conservative, not to make
friends, not to agree with any agenda, but to be honest
intellectually. Few people will disagree that he is truly one
of the most humble legal geniuses of our time.

Mr. Chairman and members of the committee, it is my high
honor and privilege to introduce to you Professor Michael
McConnell, a Utahn and a scholar of the highest talent, the
most profound integrity, and, of course, he has a supremely
judicial temperament.

Now, I won't go through his career because my colleagues
have made that quite clear. But he was a tenured professor at
the University of Chicago, decided to teach at the University
of Utah. He served as a law clerk to two of the leading liberal
jurists of the 20th century, Supreme Court Justice William J.
Brennan, Jr., and D.C. Court of Appeals Judge J. Skelly Wright.
I would like to acknowledge the presence here today of Judge
Wright's widow, Helen, and her husband, John Pickering. It is
an honor to have both of you here.

After completing these clerkships, Professor McConnell
became assistant general counsel of OMB [under President Reagan] and then served as
assistant to the Solicitor General of the United States [also under President Reagan]. He had
the prestigious chair at the University of Chicago.
I might add
that he is an able and very experienced appellate lawyer. He
has argued 11 cases before the United States Supreme Court and
won nine of them. One of his presentations to the Supreme Court
was named by the Los Angeles Daily Journal the ``best oral
argument'' of the year. His clients include a wide range of
entities, from Fortune 500 companies such as NBC and Ameritech,
to organizations such as the United States Catholic Conference,
to municipal authorities including the New York Metropolitan
Transit Authority, as well as many individuals.

Now, this combination of intelligence, skill, and
experience was very likely the reason that the American Bar
Association gave him unanimously the highest rating possible,
``well qualified.''

I could go on about Professor McConnell's outstanding
record of achievement and his unsurpassed reputation, but so
can many friends of this committee like Professors Sunstein,
Tribe, Dellinger, or Kmiec.

Mr. Chairman, about the only opposition to Professor
McConnell's nomination has come from the inside-the-Beltway
advocacy groups. I must say, what I find striking is the stark
difference between the evaluation provided to this committee by
his academic peers who know him best and that done by these
Washington special interest groups.

In my view, Professor McConnell's excellence in
scholarship, honesty in his intellect, his defense of liberty,
contribution to legal thought and precise understanding of the
role of a judge show why he is one of the best nominees this
committee has evaluated in a long, long time.

In reviewing Professor McConnell's full record, one area of
scholarship stood out for me very much: his contributions in
protecting our freedom of religion. This is one that is
important to me, and I know from working on the Religious
Freedom Restoration Act and the Religious Liberty Protection
Act, it is important to all members of the committee, and we
all cherish these issues dearly. As you know, Professor
McConnell is widely regarded as modern America's most
persuasive advocate for the idea that our Government should
ensure every citizen's right to worship--or not worship--in his
or her preferred manner. Through his scholarship and advocacy
in court, he has stood up for the rights of all religious
people, including members of some politically out-of-favor
faiths to worship free of Government restriction or intrusion.

Many Americans believe that the freedom to exercise their
own religion is the most profound and important idea on which
this country and our Government were founded. Many Americans
feel so secure in this freedom that they have not personally
felt the forces that were eroding it or the tremendous success
Professor McConnell's efforts have achieved in repairing that
damage.

Before Professor McConnell began his prodigious scholarship
in the area of the First Amendment's religion clauses, the idea
was taking root that the Government must disfavor religion in
its policies. That is, judges and scholars believed that all
groups must be treated equally except religions, which must be
excluded entirely from any Government program or policy.
Professor McConnell's scholarship served as a dramatic
wake-up call. He researched the Founders' writings and
presented with illuminating clarity that the point of free
exercise is for Government to remain neutral as between
religions and neutral as between religions and non-religions,
and it must accommodate religious activity where feasible. He
demonstrated there was no basis in the founding for the view
that our Government must be anti-religion. The persuasiveness
of his writing reawakened American legal scholars and judges to
the Founders' view that the First Amendment's purpose is to
protect religion from Government, not the other way around. His
work has helped reinvigorate the healthy and dynamic pluralism
of religion that has allowed all faiths to flourish in this
most religiously tolerant Nation in human history.

McConnell's views defy political pigeonholing. On questions
of free exercise of religion, he has generally sided with the
so-called liberal wing of the Court, arguing for vigorous
protection for the rights of religious minorities. In fact, as
I said earlier, in one opinion Supreme Court Justice Antonin
Scalia described McConnell as ``the most prominent scholarly
critic'' of his own more limited view of the free exercise
rights.

On questions of establishment of religion, McConnell's view
that religious perspectives should be given equal but no
favored treatment in the public sphere has led him to testify
against a school prayer amendment, while supporting the rights
of religious citizens and groups to receive access to public
resources on an equal basis.

Mr. Chairman, just as the pluralism of religious diversity
has profoundly enriches the spiritual life of our country, so
has the strong tradition of academic freedom and exchange of
ideas allowed an astonishing creative explosion of ideas and
achievement in America that has benefited the people of the
United States and around the world. Our First Amendment and our
intellectual property laws strive to protect, stimulate, and
widely disseminate such thought and exchange.

Few people in modern America have contributed more to their
area of expertise, and thus proven the value of academic
freedom, than Professor McConnell. He has written over 50
articles in professional journals and books.
He has delivered
hundreds of lectures and penned many op-ed pieces. He has
contributed an immeasurable amount to the discourse of legal
ideas. As Professor Laurence Tribe has written to this
committee, ``McConnell is among the Nation's most distinguished
constitutional scholars and a fine teacher.'' Professor Tribe
further explained that he and McConnell ``share a commitment to
principled legal interpretation and to a broadly civil
libertarian constitutional framework.''
Mr. Chairman, I ask
that Professor Tribe's letter be included in the record at this
point.

Chairman Leahy. We will include that in the record. Also,
there have been a number of other----
Senator Hatch. I would ask that all of the----
Chairman Leahy. Professor Sunstein's and others, I want to
get them all in here. We will put them all in the record,
including, to be very fair, those that went out of their way to
attack me and other members of the committee, on your behalf,
though, so it is all for the good. We will put them all in.
Senator Hatch. Was that on my behalf or Professor
McConnell's behalf?
Chairman Leahy. It was done on behalf of Professor
McConnell, but we will put them all in the record so we can be
totally fair about this.
Senator Hatch. All right.
The significance of Professor McConnell's contributions to
the legal profession in part explains why 304 professors--
ranging from conservative to liberal--have signed a single
letter urging this committee to confirm Professor McConnell's
nomination. Now, when was the last time that 304 professors,
law professors at that, agreed on anything? This is the first.
I ask consent, as you have already given, that these letters
also be included in the record.

Now, Professor McConnell's peers consider him one of the
Nation's foremost constitutional scholars and appellate
advocates and as a person with a reputation for fair-minded
openness--or I should put that another way, open-minded
fairness. In addition to the professors I mentioned earlier,
Professors Charles Fried, Akhil Amar, Larry Lessig, Sanford
Levinson, Douglas Laycock, and Dean John Sexton have been among
those who have praised McConnell's integrity, ability, and
fair-minded approach to legal issues. Mr. Chairman, I ask
consent that those letters also be included.
Chairman Leahy. Of course.
Senator Hatch. Over the years, many on both sides of the
aisle have discussed the impact of this committee's evaluation
process on those who have added the most to the public
discourse of legal ideas.
I think we should praise and encourage the prolific
exchange of honest and principled scholarly writing, assuming
such scholars know the proper role of a judge, to interpret the
law as written and to follow precedent--and I should say to
leave the innovative scholarship at home once confirmed to the
bench.

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