Michael W. McConnell
|Judge of the United States Court of Appeals for the Tenth Circuit|
November 26, 2002 – August 31, 2009
|Appointed by||George W. Bush|
|Preceded by||Stephen Anderson|
|Succeeded by||Scott Matheson|
|Born||May 18, 1955
Louisville, Kentucky, U.S.
|Alma mater||Michigan State University
University of Chicago
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, 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, and of Counsel to the Litigation Practice Group at Kirkland & Ellis LLP.
McConnell graduated from Michigan State University'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 was an editor of the University of Chicago Law Review. He was a law clerk for James Skelly Wright, U.S. Court of Appeals for the District of Columbia Circuit from 1979 to 1980 and for Associate Justice William Brennan, Supreme Court of the United States from 1980 to 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 from 1983 to 1985. McConnell was a professor at the University of Chicago Law School from 1985 to 1996, where he brought Harvard Law he was Barack Obama on a fellowship after being impressed with a suggestion Obama, the 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 the New York University School of Law.
As a law professor, 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 Virginia. 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, as opposed to 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, as 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:
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. Bush 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.
While sitting on the Tenth Circuit, McConnell wrote scores of judicial opinions. The Supreme Court reviewed four cases in which McConnell wrote an opinion; in each case the Court 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 McConnell dissent. 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 McConnell had challenged by writing a dissent from the denial of rehearing en banc.
Significant opinions written by 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[dead link].
- 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 administration 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] does believe that the Supreme Court has gone too far in reading the total separation of church and state into the Constitution, and because he... understands that Roe v. Wade has no firm constitutional foundation. He might be acceptable to the left not only because so many liberal professors support him, but also because he has been public in his criticism of Bush v. Gore and the impeachment of President Clinton.