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ISSUE 118 VOL 12 PUBLISHED 3/4/2005

Judge talks partisanship

By Julie Gunderson
Executive Editor

Friday, March 4, 2005

Billed as potential new U.S. Supreme Court Justice, Judge Michael McConnell spoke Tuesday evening on "Politics and the Judiciary Confirmation Wars" at the Political Awareness Committee dinner in the Valhalla dining room. McConnell, a current appellate court justice, has recently been the subject of New York Times and USA Today articles speculating who President Bush could nominate to the Supreme Court bench.

Talking about how divisive the judicial confirmation process has become, McConnell spoke from personal experience having recently undergone his own confirmation battles. After being nominated by President Bush for the U.S. 10th Circuit Court of Appeals, McConnell had to wait 19 months before the Senate confirmed him in late 2002.

McConnell said that it is important for people to realize that these confirmation proceedings can be very emotionally draining on the nominee and their families.

"We are human beings," McConnell said. "Not just political punching bags."

According to McConnell, these judicial confirmation wars are a relatively new phenomenon in American politics. Before the late 80's, the process, although sometimes contentious, never made headlines on the front page of The New York Times.

Despite headlines, McConnell argued that the media has overblown how politicized the judiciary really is.

"The civic book picture of judging is much more accurate than the newspaper version," McConnell said. "The Judiciary is not as politicized as the newspaper editorials would lead us to believe."

McConnell shared findings from a recent study conducted by professors Cass Sunstein, David Schkade and Lisa Ellman titled “Ideological Voting on the Federal Court of Appeals” which argues that Republican appointed judges and Democratic appointed judges do have major ideological differences.

McConnell however, said that he believed the methodology of the study was flawed, making any the findings overstated. He argued that the study looked only at published opinions from appellate courts, which make up only around 30 percent of all court decisions. According to McConnell, the other 70 percent are usually unanimous decisions; this fact would have had a major impact on the findings.

To support his argument that the judiciary isn't as politicized as the media makes it out to be, McConnell revealed that the Sunstein, Schkade and Ellman study showed that there was no difference in how Republican appointed justices and Democratic appointed justices decided cases dealing with property, the contract clause, race and criminal cases.

"For my Republican friends who think that liberals are soft on crime, that's not true," McConnell said. "And for my liberal friends who think Republican judges are not fair in regards to criminals and their civil liberties, there is no evidence to support this claim either."

Politics enter the court through the confirmation process, and McConnell argued that this has become an unhealthy practice. Delays in getting justices on the bench and getting the best qualified judges confirmed were McConnell's two major concerns.

McConnell cited statistics that show dramatic changes in the average time it now takes to have an appellate judge confirmed. During the Carter administration and throughout the first six years of Ronald Reagan's term, the average time it took a nominee to be confirmed was 50 days. By 1986, that number was 120 days. During the Clinton administration the number climbed to 250 days and under President George W. Bush the average time it takes a nominee to be confirmed is 400 days.

McConnell also said that the number of nominees being confirmed by the Senate is also dropping. At the beginning of the Clinton administration, the confirmation rate of nominees was 92 percent. By Clinton's second term, the number had fallen to 84 percent and currently 64 percent of President Bush's nominees have been confirmed.

McConnell said that both Republican Senators during the Clinton administration and Democratic Senators under President Bush are using the same tactic of easing up and speeding up the confirmation proceedings of district court judges, and impeding the confirmation of appellate court justices. Both sides, McConnell argued, are equally guilty.

"It's like a bad game of poker," McConnell said. "One side sees you one and then raises you one."

McConnell believes it is best when the court can be an apolitical institution and hopes that appellate benches can be both diverse and filled with the best possible nominees.

Along with his duties as justice on the 10th Circuit Court of Appeals, Judge McConnell is a law professor at the University of Utah.

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