In last week's New York Times, Neal A. Lewis wrote In List of Potential Justices, Many Kinds of Conservative suggesting eight leading candidates for replacing Justice Sandra Day O'Connor. Seven of the eight are sitting judges. What kind of Religion Clause opinions have the seven written?
For three, I could find none-- Judges John G. Roberts (DC Circuit), Michael McConnell (10th Circuit), and Edith Brown Clement (5th Circuit). [If you know of opinions I have missed, please let me know.] However, here is an article written in 1995 by Michael McConnell while he was a Professor at the University of Chicago Law School, titled The Movement For Religious Rights. It appeared in The American Enterprise.
For the other potential nominees, I was able to find Free Exercise and/or Establishment Clause opinions they authored. Here is a Religion Clause opinion from each:
Judge J. Harvie Wilkinson III (Fourth Circuit)- Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276 (April 14, 2005)- dismissal of claim by Wiccan seeking to be added to list of those who could give legislative invocation.
Judge J. Michael Luttig (Fourth Circuit)- Peck v. Upshur County Bd. of Educ., 155 F.3d 274 (Aug. 14, 1998)- upheld single day each school year for distribution of religious and political literature in high schools by private groups. But struck down practice as to elementary schools.
Judge Edith H. Jones (5th Cir.)- Freeman v. Tex. Dep't of Crim. Justice, 369 F.3d 854 (May 7, 2004)- upheld against Free Exercise challenge prison’s policy on holding of religious services.
Judge Emilio Garza (5th Cir.)- Dissent in Doe by Doe v. Beaumont Indep. School Dist., 173 F.3d 274 (April 16, 1999) [LEXIS link]- dissent would reject Establishment Clause challenge to "Clergy in the School" character education program. Note: apparently this opinion was withdrawn after an en banc rehearing reported at 240 F.3d 462 in which opinions were written by others.
Also widely mentioned elsewhere as a possible nominee is Judge Samuel A Alito, Jr. (Third Circuit). Among his opinions is Blackhawk v. Pennsylvania, 381 F.3d 202 (Aug. 20, 2004)- found Free Exercise violation in refusing waiver of a permit fee requirement under the Pa. Game & Wildlife Code for Native American keeping animals for religious purposes.
