X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
He’s the latest flavor of the week on the rapidly changing menu of potential Supreme Court nominees: Michael McConnell, a mild-mannered yet controversial judge from Utah who skis and hikes and last year taught a course on Plato’s “Republic.” But as scrutiny of his record intensifies, it’s hard for many to decide exactly what McConnell is: conservative, liberal, or a perplexing blend of both. Capitol Hill sources and other players in the increasingly frenzied Supreme Court sweepstakes place McConnell, a judge on the 10th U.S. Circuit Court of Appeals, at or near the top of the short list of possible picks for the high court if a vacancy occurs later this month. And while some liberals like McConnell, others are gearing up for a battle royal against him, especially over his sharp opposition to abortion rights and his deep support for school vouchers and for aid to parochial schools. “He is very troubling, and very likely,” says Barry Lynn, executive director of Americans United for Separation of Church and State. Yet if President George W. Bush appoints McConnell, 50, it appears he will have at least some support from liberal academics, as he did when more than 300 law professors supported him for the appeals court judgeship in 2002. “He has integrity, smarts, and is more open to a range of views than others we might get,” says one liberal law school ally of McConnell who did not want his name revealed before a vacancy materializes. Admirers also describe McConnell as devoted to his family, stepping back from his prestigious University of Chicago Law School professorship and declining an offer from Harvard Law School in order to teach at the University of Utah S.J. Quinney College of Law, where he still teaches one course a semester. McConnell and his wife moved from Chicago because they thought their three children should be raised in a more tranquil setting, though his detractors think it didn’t hurt his judicial aspirations for him to become a constituent of powerful Sen. Orrin Hatch, R-Utah, now a big fan. On and off the bench, McConnell is exceptionally gentle and soft-spoken with an academic air, leading some to wonder if McConnell will bond with President George W. Bush if the time comes for a final job interview. McConnell declined to comment for this article. But if he is nominated, it will be McConnell’s extensive paper trail that matters most. It’s a drawer full of writing from two decades of teaching at Chicago and Utah and then on the 10th Circuit, a body of work that offers everyone something to like — or shoot at. BOTH SIDES OF THE STREET The McConnell who pleases liberals is the one who clerked for the late Justice William Brennan Jr., criticized the Court’s 2000 decision in Bush v. Gore, and, before that, questioned whether President Clinton should be impeached. He opposes the constitutional amendment against flag-burning and is against school prayer in coercive settings. McConnell has fought on and off the bench in favor of non-mainstream religions; he and Justice Antonin Scalia have dueled in print over McConnell’s sharp criticism of Employment Division v. Smith, in which Scalia applied drug laws against a sect that used peyote in its ceremonies. In a case now pending before the Supreme Court, the Bush administration is trying to overturn a 10th Circuit ruling in which McConnell wrote in a concurrence that the government had “utterly failed” to show why a small New Mexico sect should be barred from using hallucinogenic tea for its rituals. In a criminal law case, McConnell dissented last year in United States v. Abdenbi, a Fourth Amendment search-and-seizure case. He decried the “brazen tactics” of federal law enforcement officers who made a predawn raid on three apartment mates. On the other hand, McConnell’s portfolio bristles with conservative views that might fit better on The Wall Street Journal editorial page. In fact, they sometimes have, as in a 1998 Journal op-ed column calling Roe v. Wade “an embarrassment to those who take constitutional law seriously.” He also once criticized a Supreme Court ruling that stripped Bob Jones University of its tax-exempt status because of its racially discriminatory policies, and he argued that the Boy Scouts should not be compelled to keep a scoutmaster who is gay. And from his view of the history of the Constitution, McConnell takes a hard line against any government action that slights religion. In an American Enterprise Institute speech in 1992, he called the Supreme Court’s decisions against aid to parochial schools “the most serious blow to freedom of religion that the United States has ever seen,” and he wondered aloud why religious parents should have to “pay [parochial school] tuition on top of property taxes” to support nonreligious children’s secular education. McConnell, a skilled Supreme Court advocate, argued successfully in favor of public financial support for religious publications in Rosenberger v. University of Virginia and in favor of supplying federally funded school equipment to parochial schools in Mitchell v. Helms. “Michael McConnell would be my choice,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, an influential leader of the Christian right. Sekulow hastens to add that others deserving equal attention include D.C. Circuit Judge John Roberts Jr. and 4th Circuit Judge J. Michael Luttig. Even though McConnell, as an academic, parted company with Christian groups over prayer at graduation ceremonies, as a justice, “he is more likely to be with us than against us,” Sekulow says. “We tend to share his views.” Sekulow’s endorsement points to what troubles some liberals about McConnell. As a law professor, a provocative mix of views is encouraged; as an appeals court judge, McConnell has been constrained by precedent. But if he becomes a Supreme Court justice — or chief justice — he’ll be making and upsetting precedent, not just following it, and some suspect his conservative side will step to the fore. That prospect gives University of Texas law professor Douglas Laycock pause. Laycock, who describes himself as a “moderate-to-liberal Democrat,” is, like McConnell, a pre-eminent church-state scholar. They’ve known each other since McConnell was a student of Laycock’s at Chicago nearly 30 years ago, but they disagree on some religious freedom issues. Nonetheless, when Bush nominated McConnell to the appeals court in 2001, Laycock went to bat for him. Laycock wrote a paper debunking the “false attacks” on McConnell as an extremist, which he let the Justice Department post on its official Web site. In a 2002 New York Times op-ed as McConnell’s confirmation hearings began, Laycock described McConnell as “plainly a moderate” who would follow the law no matter what his personal views are. McConnell was confirmed by voice vote on Nov. 15, 2002. DIVERGENT VIEWS But now, with McConnell possibly on the verge of being elevated to the Supreme Court, Laycock’s fervor has cooled. Pointing to McConnell’s strong opposition to abortion rights and his equally strong support for government aid to parochial schools, Laycock said, “I didn’t have any trouble getting past that when he was up for the appeals court. But it’s a tougher question at the Supreme Court. The Supreme Court is a lot more important.” Laycock still thinks McConnell has an open mind and an independent streak that could give conservatives heartburn at times, but not on abortion or school vouchers, “the issues that count the most to them.” At a personal level, Laycock says McConnell is “a very decent human being” with an integrity that sometimes makes him hard to collaborate with. “It has to be exactly right, or he won’t sign it.” How would McConnell get along with Bush? “He’s a true intellectual in every sense of the word,” says Laycock. “Not Bush’s style.” Bush, if he delves into the issues, may also be surprised at a key way in which McConnell differs from Chief Justice William Rehnquist, according to Marci Hamilton, another noted church-state scholar who teaches at Cardozo School of Law in New York. Hamilton, who is critical of McConnell in her new book “God vs. The Gavel,” points to McConnell’s reaction to the 1997 decision in City of Boerne v. Flores. The majority in that case, joined by Rehnquist, struck down the Religious Freedom Restoration Act — the legislative response to the Court’s decision in Employment Division v. Smith — on the grounds that Congress had gone beyond its civil rights enforcement powers under the 14th Amendment and had intruded on the powers of the judiciary and the states. In his critique of the Boerne decision, McConnell articulated a broader view of congressional power under the 14th Amendment — at least when it comes to enforcing religious liberties. His view leads some to think McConnell is less likely than the Court’s current conservative majority to strike down acts of Congress and is somewhat less deferential to states. “He’s the opposite of Rehnquist in some ways,” says Hamilton. On the other hand, Hamilton worries about McConnell’s view, which he argued unsuccessfully before the high court in the late 1980s, that religious groups should be exempted from generally applicable laws like sales tax and wage-and-hours laws. “He would be in a position to return us to a different era. It would make him popular with a lot of religious groups, though,” he says. Even though McConnell is best-known and most-vilified for his views on the First Amendment’s religion clauses, there is a whole other side to his r�sum� — a full-blown commercial law practice. Before he became a judge, McConnell was a special counsel at the firm now known as Mayer, Brown, Rowe & Maw. Like the late Paul Bator, his predecessor at the firm, McConnell had recently come from the solicitor general’s office. “He was one of the best commercial appellate litigators I ever worked with,” recalls partner Stephen Shapiro in Mayer, Brown’s Chicago office. “Clients were dazzled by him. He had enormous command of antitrust, regulatory law, telecommunications, you name it.” He was the “go-to guy” for the Baby Bell companies, Shapiro says, and was a quick study on even the densest matters of communications law. “He’d be in his office all night reading.” A fellow judge on the 10th Circuit, who insisted on anonymity, sees these qualities now on the bench years later. “He’s been a terrific generalist judge, without any agenda at all,” this McConnell colleague said. “He works like crazy and writes beautifully. And he’s the nicest guy in the world.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.