Utah justice hopeful 'outside the box'

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.

But McConnell's conservative credentials tell only part of his story.

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.

Conservative at heart

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.