Liberals at Odds Over Appeals Court Nominee

The ongoing Senate battle over President Bush’s judicial choices will focus this week on University of Utah law professor Michael W. McConnell, a soft-spoken, scholarly conservative whose nomination to a U.S. appeals court has driven a wedge between Washington’s liberal activists, who oppose him, and many of the nation’s most prominent liberal academics, who support him.

Two weeks ago, Democrats on the Senate Judiciary Committee rejected Bush’s choice of Texas Supreme Court Justice Priscilla Owen for the federal appeals court in New Orleans, describing her as a conservative judicial activist.

On Wednesday, the committee will hold a hearing on McConnell, 47, and liberal groups are urging his defeat as well because he has spoken out against abortion and the strict separation of church and state. Bush nominated McConnell to the U.S. 10th Circuit Court of Appeals in Denver in May 2001.

“We’re opposing him because his extensive writings show a hostility to firmly established constitutional rights, such as the right to choose,” said Nan Aron, president of the Alliance for Justice, a coalition of civil rights and civil liberties groups.

Ralph G. Neas, president of the liberal People for the American Way, says he respects McConnell’s legal skills, but he opposes giving him a lifetime seat on the federal bench. “Michael McConnell may be the most dangerous Bush administration judicial nominee yet to come before the Judiciary Committee,” he said.

Leaders of the National Abortion and Reproductive Rights Action League and Americans United for Separation of Church and State are also urging the Democrats to reject McConnell.

Yet unlike other Bush nominees, McConnell has strong support among the nation’s law professors, 300 of whom signed letters to the Judiciary Committee in favor of his confirmation. Many of those who signed are well-known for their liberal interpretations of legal issues.

Yale law professor Akhil D. Amar, a liberal constitutional scholar, calls McConnell “America’s preeminent scholar of religious liberty.”

The University of Chicago’s Cass R. Sunstein, a liberal constitutional theorist, calls him “extraordinarily able, one of the best constitutional scholars in the country.”

“He is conservative, but he is not an ideologue,” he added.

Sunstein pointed out that McConnell opposed the impeachment of President Clinton in a letter to House Republicans, and he faulted the Supreme Court for ending the Florida recount after the disputed 2000 presidential election.

Harvard law professor Laurence H. Tribe, a leading liberal constitutional law specialist, and Walter Dellinger, a former Clinton administration lawyer and Duke law professor, also support McConnell.

Perhaps the most remarkable letter of support came from Elena Kagan, another Harvard law professor. Clinton nominated her in 1999 to the U.S. appeals court in Washington, but Senate Republicans killed her nomination without even giving her a hearing.

In a Sept. 10 letter to Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), she urged that McConnell, a former colleague at the University of Chicago Law School, be confirmed.

“I never knew Michael to be anything other than thoughtful, open-minded and even-handed in his approach to legal questions,” she wrote. “There is no part of Michael that is activist or extremist. I do not believe he ever would bend the law to get a political result.”

Unlike most academics, McConnell has argued issues that have had a clear effect on the law. He has been an architect of a broad shift in the law on religion, a move away from the strict separation of church and state and toward a doctrine of equal treatment for religion.

In law review articles, he argued that the framers of the Constitution did not intend a strict separation of church and state. He also advocated this view successfully in a series of cases before the Supreme Court. For example, he won a 5-4 high court ruling that evangelical Christian students at a state university deserved the same subsidy for their campus magazine as student groups that promoted causes such as environmentalism.

The University of Virginia had argued that the Constitution barred it from using state funds to promote Christianity, but the court said equal treatment and free speech for the Christian students is not the same as government favoritism for religion.

Two years ago, McConnell won a similar ruling that allowed the nation’s parochial schools to receive federal aid for buying computers on the same basis as other private and public schools. This decision paved the way for the high court decision in June that upheld Ohio’s voucher law under which parents can obtain tuition aid to send their children to religious schools.

In his writings and legal arguments, McConnell stressed that he favored a “genuine equality of rights” in matters involving religion, but that he did not support a return to school-sponsored prayers or Bible readings. “Toleration of the expression of others does not come easily, but toleration must be even-handed. I am hard-pressed to understand why traditionalist citizens should be expected to tolerate the use of their tax dollars for lewd and sacrilegious art, while others go to court to ban nativity scenes from public property at Christmas,” he told a House committee considering prayer in schools.

His critics say McConnell’s writings include many extreme statements that make him ill-suited to being a federal judge.

For example, lawyers for People for the American Way say McConnell faulted the high court’s ruling that took away tax deductions for Bob Jones University in South Carolina over its policy that barred interracial dating on campus. McConnell said the court failed to “protect religious freedom from the heavy hand of government.”

In other writings, McConnell has described abortion as “an evil” and called the Roe vs. Wade ruling that made it legal “an embarrassment” to constitutional law.

McConnell also helped write a brief to the Supreme Court for the Boy Scouts of America, arguing in favor of its right to exclude an openly gay scoutmaster. In June 2000, the high court sided with the Boy Scouts on a 5-4 vote.