Utah justice hopeful 'outside the box': McConnell can't 'be pegged as an ideologue,' Hatch says

WASHINGTON — The Bush administration has placed the name of Michael McConnell, a judge on the 10th Circuit Court of Appeals and former University of Utah professor, on its list of potential Supreme Court nominees, highlighting a conservative legal scholar whose opposition to abortion and provocative ideas about church and state has prompted liberal groups to announce their opposition before there is even a court vacancy.

He "cannot be pegged as an ideologue," says Sen. Orrin Hatch, R-Utah. "McConnell's views defy political pigeon-holing. . . . He calls it as he sees it and he is beholden to no one and to no group."

"I am not an activist," McConnell said, when facing Senate confirmation for his appeals court seat.

He was endorsed by hundreds of his fellow law school deans and professors, including prominent liberals like Harvard Law School professor Laurence Tribe and Yale's Akhil Amar.

The Senate, which was then in Democratic hands, approved his nomination by acclamation. McConnell "thinks outside the box," said Sen. Charles Schumer, D-N.Y., approvingly.

Which raises a provocative question: At a time when U.S. politics is so polarized and dogmatic, is McConnell's independent thinking an asset or a drawback to his nomination?

McConnell lives in Salt Lake City with his wife, Mary, and three children and holds court here and in Denver, where the 10th Circuit Court is based.

Hatch — along with Ralph Neas, a former colleague of McConnell's at the University of Chicago who now heads People for the American Way — say they have been told by administration officials that the judge is on the White House list of potential Supreme Court nominees. He has been placed near the top of the list by The New York Times, Washington Post and other national news organizations.

But many left-wing groups oppose McConnell. And among some militant conservatives, "there is a suggestion he will be too independent," said Georgetown University Law professor Mark Tushnet.

Indeed, an examination of McConnell's record leads some conservative activists to fear that he could be "the next David Souter," the Supreme Court justice who was appointed by the first President Bush but often joins more liberal justices in their decisions.

"Judge McConnell is every bit as hostile to conservative legal principles as Souter turned out to be," wrote lawyer Andy Schlafly on the conservative Web site WorldNetDaily.

As the Supreme Court ends its term this week, the nation's capital is focused on Chief Justice William Rehnquist, who has cancer and, after more than three decades on the court, may retire.

To the White House lawyers who have assembled lists of potential nominees, the 50-year-old McConnell is attractive as a strong conservative who can garner enough support from legal scholars and some Democrats to win confirmation.

There is no question, from his record and writings as a University of Chicago and University of Utah law professor, that McConnell is conservative at heart.

He worked in the White House and the Justice Department during the Reagan administration and said in 2002 he belonged to the Federalist Society, which seeks to return America to an "original" interpretation of the Constitution. He also said he was a member of the Christian Legal Society and the Evangelical Free Church of Salt Lake City.

He defended the conservative Bob Jones University when it was threatened with loss of its tax-exempt status for discriminatory practices and argued on behalf of the Boy Scouts of America when the group asked the Supreme Court to allow them to ban gays from the organization. He has supported anti-abortion protesters who obstruct access to family-planning clinics.

The leaders of several prominent liberal groups — People for the American Way, the Alliance for Justice, Americans United for Separation of Church and State — say they will urge Senate Democrats to filibuster his nomination if McConnell is selected.

On abortion — an issue that dominates Supreme Court nominations — McConnell is "a right-wing ideologue with an extensive record of vehement opposition to a woman's fundamental constitutional rights of reproductive choice and privacy," according to a statement by NARAL Pro-Choice America, the leading abortion rights group.

In 1996, McConnell joined a group of prominent anti-abortion activists and signed "a statement of pro-life principle and concern" called "The America We Seek."

"Abortion kills 1.5 million innocent human beings in America every year. There is no longer any serious scientific dispute that the unborn child is a human creature who dies violently in the act of abortion," the statement said.

The Supreme Court decision that recognized a right to abortion — Roe v. Wade — was "a gross misinterpretation of the Constitution" that "wounded American democracy," the statement said. It called for the Supreme Court to reverse itself, and for a constitutional amendment banning abortion.

In a 1998 op-ed piece for The Wall Street Journal, McConnell contended that "the reasoning of Roe v. Wade is an embarrassment to those who take constitutional law seriously.

"The right of privacy is nowhere mentioned in the Constitution," McConnell wrote. "The Supreme Court brought great discredit on itself by overturning state laws regulating abortion without any persuasive basis in constitutional text or logic."

On another simmering social issue — the relationship between church and state in America — McConnell has built a legal foundation from which conservatives argue that it's constitutional, advantageous and well within American tradition to mingle political and religious goals.

McConnell believes that government does not breach the wall between church and state when using religious institutions to administer federal social programs, or when a university offers public funds to student religious groups. He supports school voucher programs and aid to parochial schools.

"We don't get too much of the white bread and mayonnaise from you. It's a very, very strong, passionate statement for everything," Sen. Patrick Leahy, D-Vt., told McConnell, reviewing the scholar's writings at his confirmation hearing in 2002.

But when testifying during those hearings, McConnell sounded more accommodating to the notion of privacy and abortion rights, and provided a more textured reading of the law.

The Supreme Court's reasoning in Planned Parenthood v. Casey, the landmark case that re-affirmed Roe v. Wade, was more solidly grounded than the original decision, said McConnell.

Roe "has been reconsidered and reaffirmed now by justices appointed by Presidents Nixon, Ford, Reagan, Bush (and) Clinton after very serious re-argument," said McConnell. "Today, it is much more reflective of the consensus of the American people."

A constitutional amendment banning abortion "is not going to happen," McConnell told the senators. And he spoke approvingly of a German Supreme Court ruling that recognizes a government's obligation to restrict abortions 15 days after conception, but does not necessarily criminalize the procedure.

Liberals remain worried. McConnell's vow to restrict himself to applying "settled" law as an appellate judge won't matter if he is appointed to the Supreme Court, whose members have the authority to rethink the law.

McConnell opposes a constitutional amendment to ban flag burning. He is against mandatory school prayer. He thinks the question of assisted suicide for terminally ill patients should be left to state "experimentation" and regulation.

McConnell spoke out against the impeachment of President Bill Clinton and criticized the reasoning behind the Supreme Court's decision in Bush v. Gore, which made George W. Bush president in 2001. He has written, in the Harvard Law Review, that a public hospital may not forbid doctors from performing abortions on its premises.

When a group of gay and straight students at a Salt Lake City high school met administrative resistance when they tried to form an extracurricular club that would meet on school property, McConnell supported the students — just as he had defended Christian students in Washington state who wanted to meet after school in an empty classroom as a Bible study group.

In a 1992 law review article, he criticized a Supreme Court decision on government Christmas displays. He noted how the court struck down a display that featured only Christian symbols, but upheld another display in which a nativity scene was surrounded by Santa Claus and other secular symbols.

"The court appears to have arrived at the worst of all possible outcomes. It would be better to forbid the government to have religious symbols at all than to require that they be festooned with the trappings of modern American materialism," he wrote. "If there are to be religious symbols, they should be treated with respect. To allow them only under the conditions approved by the court makes everyone the loser."

The Kentucky-born judge received a bachelor's degree from Michigan State University and his law degree from the University of Chicago in 1979. He clerked for two liberal icons on the federal bench — Circuit Court Judge J. Skelly Wright and Supreme Court Justice William J. Brennan — before working in the Reagan administration and then becoming a law professor at the University of Chicago.

In 1996, he pulled up stakes and moved to the University of Utah as a professor.

Troy Eid, former legal counsel to Colorado Gov. Bill Owens and a student of McConnell's at the University of Chicago, said McConnell's move to Utah was a prescient change of venue.

McConnell, Eid said, had no connection to Utah but moved there to find a political climate more favorable to his aspirations of becoming a federal appeals court judge. "He did a very bold thing," said Eid.

Eid said the political landscape in Utah, decidedly more conservative than that in the Chicago area, was more amenable to McConnell's scholarship. Hatch quickly became an ally and got behind McConnell's nomination to the 10th Circuit Court of Appeals, which covers Utah, Colorado, Oklahoma, Kansas, New Mexico and Wyoming.

McConnell, who has argued 11 cases before the Supreme Court and won nine of them, received the American Bar Association's highest rating as a nominee and was confirmed without objection.

At the time of his confirmation hearings, he told Senate investigators that his net worth was about $2.2 million, with income from his job as a law professor and from part-time litigation for the Chicago law firm of Mayer, Brown & Platt.

His former clients included corporate titans like NBC, GTE and Bell South as well as The Church of Jesus Christ of Latter-day Saints, the Boy Scouts of America, Jimmy Swaggart Ministries and the International Society for Krishna Consciousness, most of whom he represented on First Amendment issues.

David Getches, dean of the University of Colorado's law school, calls McConnell one of the country's leading constitutional scholars. He said McConnell's support by both liberal and conservative academics stems from his intellectual integrity.

"What gets the respect of law professors regardless of their political leanings is that McConnell is a scholar of enormous intellectual integrity," Getches said. "It doesn't matter whether you agree with him. You can see his principled basis unalloyed by politics."

I am not so sure that I want this man on the SC, the last thing we need now is another justice like Souter. Souter is a disaster for conservatives. If liberal legal academics and the ABA like this guy, that's enough for me to say "Sorry, but you're not going to the Supreme Court."

2 posted on 06/26/2005 10:55:50 PM PDT by txnativegop (God Bless America!)

Yep, since Hatch felt that Clinton's choices of Breyer and Bader/Ginsburg (former ACLU activist never questioned about her activism and writings during hearings) were OK, I seriously question his thoughts here.

Agreed. Orrin Hatch endorsement equals bad news. Let's keep looking.

4 posted on 06/26/2005 11:35:11 PM PDT by billclintonwillrotinhell

Spare us all the folks who are "textured" and "nuanced."

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