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High court U. scholar's next stop?
This is an archived article that was published on sltrib.com in 2005, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

WASHINGTON - The buzz has risen to a din over who might replace ailing Chief Justice William Rehnquist on the Supreme Court, and a name that comes up over and over is that of federal Judge Michael McConnell, a University of Utah law professor.

Rehnquist is undergoing treatment for thyroid cancer and his absence from Supreme Court proceedings has fueled speculation as to when his health might force him to retire from the court and whom President Bush might name to take his place.

McConnell, 49, who now sits on the 10th U.S. Circuit Court of Appeals, has been frequently mentioned.

He was regarded as a leading conservative constitutional scholar on issues of religious freedom, abortion and gay issues. He left the University of Chicago Law School for Utah in 1996 and still lives in Salt Lake City with his family.

Utah Sen. Orrin Hatch, who said in 2002 that McConnell was "on the fast track to the Supreme Court," continues to boost McConnell, but notes there are many qualified people the president could be considering.

"If Michael McConnell is one of them, then I think President Bush is on the right track," Hatch said. "He is one of the finest legal scholars I've known and has been a consummate judge for the 10th Circuit. I would expect Michael McConnell is exactly the kind of judge President Bush would be considering for the Supreme Court."

The New York Times on Tuesday, citing unnamed sources, reported that McConnell's name is on the White House's short list for a spot on the high court. Others included John G. Roberts of the Court of Appeals for the District of Columbia; J. Harvie Wilkinson III and J. Michael Luttig, both of the 4th U.S. Circuit Court of Appeals; and Judge Samuel A. Alito of the 3rd U.S. Circuit Court of Appeals.

It remains unclear whether Bush would opt to nominate a new chief justice or elevate a sitting justice, most likely Antonin Scalia or Clarence Thomas, to chief justice and pick a new associate justice.

It is widely believed that President Bush will nominate two justices for the court, one to replace Rehnquist and the other to replace Justice Sandra Day O'Connor, who may also retire in the near future.

McConnell's advantages are that he is widely respected for his legal mind, including by liberal scholars. During his appeals-court nomination, more than 200 liberal law professors signed a petition praising his intellect and supporting the nomination.

McConnell made it through the Senate confirmation process relatively unscathed, compared to other conservative nominees, and with only two years on the bench, he has written fewer cases that could become fodder for opponents.

As a law professor, McConnell was a prolific author and a leading advocate on an array of conservative issues. He made a reputation arguing against a strict separation of church and state. He helped the Boy Scouts of America fight to exclude homosexuals and has been a strong critic of the court's ruling in Roe v. Wade, establishing a woman's right to an abortion, all to the delight of his conservative backers.

"The very thing that makes him attractive to the far right creates serious concerns for mainstream and progressives," said Elliot Mincberg, legal director for People For The American Way, a liberal group that has opposed many of Bush's nominees, including arguing against McConnell's nomination to the 10th Circuit.

"He has been quite explicit in his pre-judicial career in opposing a number of very key Supreme Court precedents, ranging from Roe v. Wade to a number of precedents on church and state," Mincberg said. "There's no question that McConnell is extremely intelligent . . . but when you're talking about the difference between the court of appeals and the Supreme Court, that can be a world of difference."

Others say McConnell's qualifications are impeccable.

"I can't comment where he is on the list, assuming there is a list, but he's obviously qualified," said D. Kyle Sampson, special counsel to Attorney General Alberto Gonzales and former associate counsel at the White House, whose responsibilities include assisting in the selection of federal judges.

"He's a circuit court judge and a premier legal scholar in the country, and a great person. Utah's fortunate to have him as a circuit court judge," said Sampson, who was a pupil of McConnell's at the University of Chicago Law School.

The Senate fights over judicial nominations have been bitter and bruising, and Republican leaders have escalated the rhetoric with discussions of a "nuclear option," which would make it impossible for Democrats to filibuster a nominee. Given the climate, any nominee, particularly one with McConnell's conservative track record, might be stirring a hornets' nest.

But Mincberg said that may not be so, if Bush reached out to Democrats the way President Clinton sought advice from Hatch.

In 1993, Clinton called Hatch to discuss a replacement to Justice Byron White. According to Hatch's autobiography, Square Peg, Clinton favored Bruce Babbitt, then the Secretary of the Interior. Hatch warned of a hard confirmation battle and recommended Stephen Breyer or Ruth Bader Ginsberg, both then appeals court judges, and both of whom were nominated by Clinton and confirmed to the court.

Michael McConnell: The Court of Appeals judge is often mentioned as a possible future nominee
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