The Supreme Court short list.

Taking stock of people and ideas in the news.
July 1 2005 11:34 AM

The Supreme Court Shortlist

The views of the likely candidates.

(Continued from Page 3)

Habeas Corpus
Dissented from a decision to overturn the conviction of a death-row inmate against whom there was no physical evidence and whose lawyer failed to interview the single eyewitness to the crime. In Garza's view, his court could not hear the defendant's claim that his lawyer was ineffective because he had not raised it directly enough in his federal habeas petition. (Soffar v. Dretke, 2004)

Agreed to deny relief to a death-row inmate whose lawyer put on no evidence about his clean criminal and psychiatric record. In a concurrence, Garza expressed concern that the jury instructions given in the case might have been unconstitutional because they did not ask whether there were mitigating circumstances that might lead the jury to impose a sentence less than death. Also expressed skepticism about the validity of psychiatric predictions about the future dangerousness of a defendant. (Flores v. Johnson, 2000)


Agreed to strike down Louisiana's abortion law as unconstitutional because it criminalized abortions except to save the life of the mother, or in cases or rape or incest. In a concurrence, Garza noted his disagreement with the relevant Supreme Court precedent, saying, "the Constitution says absolutely nothing about abortion" and "I would allow the people of the State of Louisiana to decide this issue for themselves." (Sojourner v. Edwards, 1992)

Agreed to strike down Louisiana's statute allowing teens seeking abortions to go to court rather than notifying their parents, on the grounds that the exceptions made to parental notification were too narrow. In a concurrence, reiterated his stance that the Supreme Court's opinions granting a right to abortion are "inimical to the Constitution." (Causeway Medical Suite v. Ieyoub, 1997)

For a unanimous panel, held that Congress' power to regulate interstate commerce gave it the authority to pass a law limiting the access of protesters to the entrance of abortion clinics. (U.S. v. Bird, 2005)

Judicial Philosophy
In Causeway Medical Suite v. Ieyoub, expressed dismay that the Supreme Court's broad readings of the word "liberty" in the Constitution "have slowly eroded the scope of public debate." Garza argued that if the court had stayed out of several arenas—for example, marriage, child rearing, school curricula, abortion—state laws might have changed "as public attitudes changed." Instead, "the people's Constitution—at least as to unenumerated constitutional rights—has become the Court's Constitution."

Michael McConnell 

Michael McConnell
Michael McConnell

Age: 50 Graduated from: University of Chicago Law School. He clerked for: Judge Skelly Wright, Justice William Brennan. He used to be: a law professor at the University of Chicago and the University of Utah, an appellate attorney for Mayer Brown. He's now: a judge on the U.S. Court of Appeals for the 10th Circuit (appointed 2002).

His confirmation battle: When McConnell was nominated to the 10th Circuit three years ago, he had the support of liberal law professors who called him Bush's "most distinguished" nominee and signed a letter of support for him. Other liberal groups, on the other hand, fought hard against his confirmation, highlighting his support for expanding the role of religion in the public sphere. How to account for the split? As a respected and well-liked law professor, McConnell was well-placed to win support in the academy, and one of the arguments made on his behalf was that, as an advocate of judicial restraint, he'd be sure to follow the Supreme Court's directives. McConnell wouldn't be similarly bound by precedent, however, if he joined the high court himself. Instead, the combination of his hard-line conservative views and his sunny disposition could make him extremely effective at bringing about change.

Civil Rights and Liberties
In a law review article, argued that the support for school desegregation in Brown v. Board of Education is consistent with the intentions of the framers of the 14th Amendment to guarantee equal protection under the law. McConnell's remains the minority view.

In a Slate dialogue, opposed a constitutional right to assisted suicide.



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