September 11, 2002

The Honorable Patrick Leahy
Chairman, Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Senator Leahy:

Once again, I am compelled to write to you on behalf of the 90,000 members, supporters and volunteers of the National Council of Jewish Women (NCJW) nationwide to express our opposition to the confirmation of another appeals court nominee. Michael W. McConnell has forthrightly opposed abortion rights, criticized the Rehnquist Supreme Court as "center-left," and disparaged the separation of religion and state as now delineated by the federal courts. NCJW has pledged to oppose judicial nominees whose commitment to constitutional rights, including reproductive rights, is seriously lacking. Based on an examination of his many writings, we believe Professor McConnell fails to meet this basic criterion.

Professor McConnell's opposition to Roe v. Wade is well-documented. He has called the reasoning behind that historic decision "an embarrassment to those who take constitutional law seriously" and "without any persuasive basis in constitutional text or logic." He has pronounced the decision"of questionable legitimacy and even more questionable prudence."

Even among those who oppose reproductive rights, Professor McConnell's views are among the most radical. In 1996, he signed a "Statement of Pro-Life Principle and Concern" supporting a constitutional amendment that would overturn Roe and establish that "the right to life protected by the Fifth and Fourteenth Amendments extends to the unborn child." Such an amendment would immediately criminalize all abortions. He has also stated his support for legislation declaring an embryo a legal person from the moment of implantation.

Professor McConnell testified against the Freedom of Access to Clinic Entrances Act (FACE) on constitutional grounds and in favor of the right to protest against abortion "forcefully and face-to-face." His position on FACE has been rejected by every federal appeals court that has considered it. Nevertheless, he applauded a federal judge who acquitted two protestors charged with violating FACE, stating the protestors acted without "bad purpose." Concluding that "I am quite sure it was not lawful," he nevertheless wrote, "...one cannot help admiring the judge's act."

Professor McConnell's views on the separation of religion and state are extreme. He sees no barrier to government funding of religious institutions. He has described church-state separation as never having been a "plausible or attractive conception of proper relations between government and religion in the modern activist state." He would have the country reject the idea "that taxpayers have a constitutional right to insist that none of their taxes be used for religious purposes."

As a volunteer organization inspired by Jewish values that works through a program of research, education, advocacy and community service to improve the quality of life for women, children and families and strives to ensure individual rights and freedoms for all, NCJW has committed itself to engaging in the national debate on the direction our judiciary should take.

Based on statements you have made at hearings on other nominations, we know you agree that judges nominated to the federal appellate courts should be considered and confirmed based on their integrity, judicial philosophy and temperament, and commitment to safeguarding constitutional and civil rights. These criteria exclude Michael W. McConnell, and we urge you to vote against his nomination to the 10th Circuit.

Sincerely,

Marsha Atkind National President

cc: Members of the Senate Judiciary Committee