Courting Disaster

American Freedom And Michael McConnell

President George W. Bush has announced the nomination of University of Utah law professor Michael W. McConnell for a seat on the 10th Circuit Court of Appeals. This selection is a grievous insult to the American people and the First Amendment protections they count on.

A determined right-wing activist, McConnell is best known as a longtime foe of the separation of church and state. Just last year he called for a "radical" departure from the Supreme Court's doctrine upholding church-state separation, seeking to overturn a half-century of church-state law dating back to 1947.

McConnell takes issue with a core concept of the First Amendment that Americans cannot be forced to support or pay for religion against their will. He has personally argued two cases before the Supreme Court arguing that government bodies should be able to direct public funds to religious organizations.

Visionary founders Thomas Jefferson and James Madison steadfastly opposed taxing people to support religion. McConnell apparently believes they were wrong. Writing in the University of Chicago Law Review in 1992, he asserted, "We must...reject the...idea...that taxpayers have a constitutional right to insist that none of their taxes be used for religious purposes."

Jefferson and Madison spoke quite eloquently of the need for church-state separation. Again, McConnell disagrees. Two years ago, writing in the Utah Law Review, McConnell said separation of church and state has never been a "plausible or attractive conception of proper relations between government and religion in the modern activist state." In some instances, he asserted, that principle is "either meaningless, or (worse) is a prescription for secularization of areas of life that are properly pluralistic."

McConnell seems to have little sympathy for ordinary Americans whose rights are violated by government-imposed religion. He has bitterly criticized Lee v. Weisman, a 1992 high court ruling barring school-sponsored prayer at graduation ceremonies, blithely dismissing the claims of the family who brought the case and saying their views had "nothing to do with freedom of religion."

McConnell joins a long line of "separation bashers" who have come and gone in academia. Most of them remain confined to the world of law review articles, moot courts and the right-wing lecture circuit. If Bush has his way, McConnell will be able to take his radical views from the pages of legal articles and make them the nation's official policy.

The idea of an individual with views like McConnell's being elevated to a federal appeals court is more than troubling it's scary. After all, federal appeals judges not only shape judicial doctrine, they can easily become elevated to the Supreme Court.

McConnell's nomination is no accident. The president clearly selected him not in spite of his views but because of them. This action is a disturbing harbinger of Supreme Court nominees to come.

In 1987, President Ronald Reagan nominated Robert Bork to the Supreme Court. Reagan and his staff tried to portray Bork as a moderate, but he was quickly exposed as an extremist who held views far outside the mainstream of legal thought. Like McConnell, Bork had nothing but disdain for the towering figures of history who fashioned the separation of church and state. Like McConnell, Bork thought he knew better than Jefferson and Madison. Like McConnell, Bork was wrong.

The U.S. Senate saw through the effort to hide Bork's true colors. His nomination was rejected. The Senate should do the same with the nomination of Michael McConnell.

Be sure to let your U.S. senators know what you think about this vital concern.