Michael W. McConnell
Encyclopedia
Michael William McConnell (born May 18, 1955 in Louisville, Kentucky
) is a constitutional law scholar who served as a federal judge
on the United States Court of Appeals for the Tenth Circuit
from 2002 until 2009. Since 2009, Judge McConnell has served as Director of the Stanford Constitutional Law Center at Stanford Law School
. He is also a senior fellow at Stanford University
's Hoover Institution
.
's James Madison College
in 1976. McConnell received his Juris Doctor
(J.D.) degree from the University of Chicago
Law School
in 1979, where he served on law review
. He was a law clerk
for James Skelly Wright
, U.S. Court of Appeals for the District of Columbia Circuit
, 1979–1980, and for Associate Justice William Brennan
, Supreme Court of the United States
, 1980-1981. He was an assistant general counsel at the Office of Management and Budget, 1981–1983, and an assistant to the Solicitor General
, U.S. Department of Justice, 1983-1985. McConnell was a professor at the University of Chicago Law School
, 1985–1996, where he brought Harvard Law graduate Barack Obama
on a fellowship after being impressed with a suggestion Obama, then Harvard Law Review
president, had made on one of McConnell's articles. McConnell has been professor at the University of Utah
S.J. Quinney College of Law, as well as a visiting professor at Harvard Law School
and at Stanford Law School
.
. He is widely regarded as one of the preeminent constitutional law scholars on the Free Exercise
and Establishment Clauses
.
In 1996, McConnell signed a statement supporting a constitutional amendment
to ban abortion, which read, "Abortion kills 1.5 million innocent human beings in America every year...We believe that the abortion license is a critical factor in America's virtue deficit."
As a respected constitutional scholar during his law school tenure, McConnell contended that originalism
is consistent with the Supreme Court's 1954 desegregation
decision Brown v. Board of Education
, against critics of originalism who argue that they are inconsistent. McConnell has likewise argued that the Court's decision in Bolling v. Sharpe
was correct, but should have been reached on other grounds, because Congress never "required that the schools of the District of Columbia be segregated."
McConnell was highly critical of the Supreme Court's decision in Bush v. Gore
, writing:
on September 4, 2001 to a seat on the United States Court of Appeals for the Tenth Circuit
, and confirmed unanimously by the United States Senate
on November 15, 2002 by voice vote
.
Significant opinions written by Judge McConnell include the following:
of President George W. Bush
. In June 2005, amid expectations that Chief Justice
William H. Rehnquist would retire at the end of the Court's term, some sources cited McConnell as a frontrunner for Rehnquist's seat, which ultimately went to John Roberts. Professor Stephen B. Presser of Northwestern University School of Law
argued that McConnell was, "high on the White House's short list" because:
McConnell was also mentioned as a possible Supreme Court nominee in a John McCain
presidency.
His academic scholarship includes, among other publications, the following:
Louisville, Kentucky
Louisville is the largest city in the U.S. state of Kentucky, and the county seat of Jefferson County. Since 2003, the city's borders have been coterminous with those of the county because of a city-county merger. The city's population at the 2010 census was 741,096...
) is a constitutional law scholar who served as a federal judge
Federal judge
Federal judges are judges appointed by a federal level of government as opposed to the state / provincial / local level.-Brazil:In Brazil, federal judges of first instance are chosen exclusively by public contest...
on the United States Court of Appeals for the Tenth Circuit
United States Court of Appeals for the Tenth Circuit
The United States Court of Appeals for the Tenth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Colorado* District of Kansas...
from 2002 until 2009. Since 2009, Judge McConnell has served as Director of the Stanford Constitutional Law Center at Stanford Law School
Stanford Law School
Stanford Law School is a graduate school at Stanford University located in the area known as the Silicon Valley, near Palo Alto, California in the United States. The Law School was established in 1893 when former President Benjamin Harrison joined the faculty as the first professor of law...
. He is also a senior fellow at Stanford University
Stanford University
The Leland Stanford Junior University, commonly referred to as Stanford University or Stanford, is a private research university on an campus located near Palo Alto, California. It is situated in the northwestern Santa Clara Valley on the San Francisco Peninsula, approximately northwest of San...
's Hoover Institution
Hoover Institution
The Hoover Institution on War, Revolution and Peace is a public policy think tank and library founded in 1919 by then future U.S. president, Herbert Hoover, an early alumnus of Stanford....
.
Background
McConnell graduated from Michigan State UniversityMichigan State University
Michigan State University is a public research university in East Lansing, Michigan, USA. Founded in 1855, it was the pioneer land-grant institution and served as a model for future land-grant colleges in the United States under the 1862 Morrill Act.MSU pioneered the studies of packaging,...
's James Madison College
James Madison College
This article is about the public-policy college at Michigan State University. For the similarly named institution in Virginia, see James Madison University....
in 1976. McConnell received his Juris Doctor
Juris Doctor
Juris Doctor is a professional doctorate and first professional graduate degree in law.The degree was first awarded by Harvard University in the United States in the late 19th century and was created as a modern version of the old European doctor of law degree Juris Doctor (see etymology and...
(J.D.) degree from the University of Chicago
University of Chicago
The University of Chicago is a private research university in Chicago, Illinois, USA. It was founded by the American Baptist Education Society with a donation from oil magnate and philanthropist John D. Rockefeller and incorporated in 1890...
Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
in 1979, where he served on law review
University of Chicago Law Review
The University of Chicago Law Review is a law journal published by the University of Chicago Law School, and was established in 1933. From 1942 through 1945 the review was published by the faculty, due to World War II. Prominent former student members have included Judge Abner J...
. He was a law clerk
Law clerk
A law clerk or a judicial clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Law clerks are not court clerks or courtroom deputies, who are administrative staff for the court. Most law clerks are recent law school graduates who...
for James Skelly Wright
J. Skelly Wright
James Skelly Wright was a judge for the United States Court of Appeals for the District of Columbia Circuit and anti-segregationist. The J...
, U.S. Court of Appeals for the District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
, 1979–1980, and for Associate Justice William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
, Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, 1980-1981. He was an assistant general counsel at the Office of Management and Budget, 1981–1983, and an assistant to the Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
, U.S. Department of Justice, 1983-1985. McConnell was a professor at the University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
, 1985–1996, where he brought Harvard Law graduate Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
on a fellowship after being impressed with a suggestion Obama, then Harvard Law Review
Harvard Law Review
The Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School.-Overview:According to the 2008 Journal Citation Reports, the Review is the most cited law review and has the second-highest impact factor in the category "law" after the...
president, had made on one of McConnell's articles. McConnell has been professor at the University of Utah
University of Utah
The University of Utah, also known as the U or the U of U, is a public, coeducational research university in Salt Lake City, Utah, United States. The university was established in 1850 as the University of Deseret by the General Assembly of the provisional State of Deseret, making it Utah's oldest...
S.J. Quinney College of Law, as well as a visiting professor at Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
and at Stanford Law School
Stanford Law School
Stanford Law School is a graduate school at Stanford University located in the area known as the Silicon Valley, near Palo Alto, California in the United States. The Law School was established in 1893 when former President Benjamin Harrison joined the faculty as the first professor of law...
.
Scholarship
As a law professor, Judge McConnell has published a variety of legal articles and edited several books. As a lawyer, he has argued cases in federal courts of appeals and before the Supreme Court, including a 5-4 victory in Rosenberger v. University of VirginiaRosenberger v. University of Virginia
Rosenberger v. Rector and Visitors of the University of Virginia, , was an opinion by the Supreme Court of the United States regarding whether a state university might, consistently with the First Amendment, withhold from student religious publications funding provided to similar secular student...
. He is widely regarded as one of the preeminent constitutional law scholars on the Free Exercise
Free Exercise Clause of the First Amendment
The Free Exercise Clause is the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:...
and Establishment Clauses
Establishment Clause of the First Amendment
The Establishment Clause is the first of several pronouncements in the First Amendment to the United States Constitution, stating, Together with the Free Exercise Clause The Establishment Clause is the first of several pronouncements in the First Amendment to the United States Constitution,...
.
In 1996, McConnell signed a statement supporting a constitutional amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
to ban abortion, which read, "Abortion kills 1.5 million innocent human beings in America every year...We believe that the abortion license is a critical factor in America's virtue deficit."
As a respected constitutional scholar during his law school tenure, McConnell contended that originalism
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
is consistent with the Supreme Court's 1954 desegregation
Desegregation
Desegregation is the process of ending the separation of two groups usually referring to races. This is most commonly used in reference to the United States. Desegregation was long a focus of the American Civil Rights Movement, both before and after the United States Supreme Court's decision in...
decision Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
, against critics of originalism who argue that they are inconsistent. McConnell has likewise argued that the Court's decision in Bolling v. Sharpe
Bolling v. Sharpe
Bolling v. Sharpe, 347 U.S. 497 , is a landmark United States Supreme Court case which deals with civil rights, specifically, segregation in the District of Columbia's public schools. Originally argued on December 10–11, 1952, a year before Brown v. Board of Education, 347 U.S...
was correct, but should have been reached on other grounds, because Congress never "required that the schools of the District of Columbia be segregated."
McConnell was highly critical of the Supreme Court's decision in Bush v. Gore
Bush v. Gore
Bush v. Gore, , is the landmark United States Supreme Court decision on December 12, 2000, that effectively resolved the 2000 presidential election in favor of George W. Bush. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v...
, writing:
I imagine that Gov. Bush and his supporters will put on a brave face and defend this decision, but I cannot imagine that there is much joy in Austin tonight. The Supreme Court, with all the prestige of its position in American public life, could have brought closure to this matter. But instead, by straddling the fence, the court has produced a combination of holdings that can please no one.
Tenth Circuit nomination and confirmation
McConnell was nominated by President George W. BushGeorge W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
on September 4, 2001 to a seat on the United States Court of Appeals for the Tenth Circuit
United States Court of Appeals for the Tenth Circuit
The United States Court of Appeals for the Tenth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Colorado* District of Kansas...
, and confirmed unanimously by the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
on November 15, 2002 by voice vote
Voice vote
A voice vote is a voting method used by deliberative assemblies in which a vote is taken on a topic or motion by responding verbally....
.
Notable cases
While sitting on the Tenth Circuit, Judge McConnell has written scores of judicial opinions. The Supreme Court has reviewed four cases in which Judge McConnell wrote an opinion; in each case the Court has reached the same result as the opinion by Judge McConnell. First, in [ O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 546 U.S. 418 (2006)], a case involving the religious use of a hallucinogenic tea, the Supreme Court affirmed 8-0 a Tenth Circuit en banc decision to which Judge McConnell wrote a concurring opinion. Second, in [ Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2008)], a case involving the retroactive application of a statutory provision limiting appeals from immigration removal orders, the Supreme Court affirmed 8-1 a Tenth Circuit panel decision written by Judge McConnell. Third, in Begay v. United States, No. 06–11543 (April 16, 2008), a case involving whether a felony conviction for driving under the influence is a crime of violence for purposes of the Armed Career Criminal Act, the Supreme Court reversed 6-3 a Tenth Circuit panel decision from which Judge McConnell dissented. Fourth, in Pleasant Grove City, Utah v. Summum, No. 07-665 (February 25, 2009), a case involving whether the presence of a Ten Commandments monument on government property gave another religion a First Amendment right to place its own monument on the same property, the Supreme Court unanimously reversed a Tenth Circuit panel decision that Judge McConnell had challenged by writing a dissent from the denial of rehearing en banc.Significant opinions written by Judge McConnell include the following:
- Christian Heritage Academy v. Oklahoma Secondary School Activities Association, 483 F.3d 1025, 1037 (2007) (concurring and dissenting). Equal Protection Clause.
- United States v. Pruitt (2007) (concurring). Criminal sentencing.
- United States v. Allen (2007). Criminal sentencing. The case was covered by How Appealing and Decision of the Day.
- United States v. Medley (2007) (concurring). Criminal sentencing.
- Shrum v. City of Coweta, Oklahoma, 449 F.3d 1132 (2007). Free Exercise Clause.
- O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (2004) (en banc) (McConnell, J., concurring), affirmed by Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). Free Exercise Clause; Religious Freedom Restoration Act.
- Geddes v. United Staffing Alliance Employee Medical Plan (2006).
- United States v. Patton (2006). Commerce Clause. Writing for the court, McConnell upheld a federal statute prohibiting the possession of body armor by felons. Even though the statute, as applied to Mr. Patton's intrastate and noncommercial possession of body armor, could not be sustained under any of the three Lopez categories established by the Supreme Court, it fell within the Commerce Clause under another line of Supreme Court precedent (Scarborough) and noted the tension between the two sets of precedents. The court also rejected Mr. Patton's due process and necessity claims. The case was covered by Decision of the Day and The Volokh Conspiracy and was the subject of a constitutional law final exam at Cornell.
- Equal Employment Opportunity Commission v. BCI Coca-Cola.
- Southern Utah Wilderness Alliance v. Bureau of Land Management (2006).
Supreme Court speculation
McConnell was mentioned as a potential nominee to the Supreme Court during the administrationGeorge W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...
of President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
. In June 2005, amid expectations that Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
William H. Rehnquist would retire at the end of the Court's term, some sources cited McConnell as a frontrunner for Rehnquist's seat, which ultimately went to John Roberts. Professor Stephen B. Presser of Northwestern University School of Law
Northwestern University School of Law
The Northwestern University School of Law is a private American law school in Chicago, Illinois. The law school was founded in 1859 as the Union College of Law of the Old University of Chicago. The first law school established in Chicago, it became jointly controlled by Northwestern University in...
argued that McConnell was, "high on the White House's short list" because:
- [McConnell] does believe that the Supreme Court has gone too far in reading the total separation of church and stateSeparation of church and stateThe concept of the separation of church and state refers to the distance in the relationship between organized religion and the nation state....
into the ConstitutionUnited States ConstitutionThe Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, and because he ...understands that Roe v. WadeRoe v. WadeRoe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
has no firm constitutional foundation. He might be acceptable to the left not only because so many liberalLiberalismLiberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
professors support him, but also because he has been public in his criticism of Bush v. GoreBush v. GoreBush v. Gore, , is the landmark United States Supreme Court decision on December 12, 2000, that effectively resolved the 2000 presidential election in favor of George W. Bush. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v...
and the impeachment of President ClintonBill ClintonWilliam Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
.
McConnell was also mentioned as a possible Supreme Court nominee in a John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
presidency.
See also
- List of law clerks of the Supreme Court of the United States
- George W. Bush Supreme Court candidates
External links
- A selection of McConnell's essays for the Wall Street Journal
- McConnell's Faculty Profile at Stanford Law School
His academic scholarship includes, among other publications, the following: