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Appeals court nominee tells panel devotion to law is issue

WASHINGTON (BP)–President Bush’s latest besieged federal appeals court nominee told the Senate Judiciary Committee Sept. 18 it is his commitment to the law, not his strongly held personal opinions, the senators should consider.

“I can tell you with as much conviction as I have for anything that I will serve as a judge committed to the rule of law, not just because I have to, but because I believe that is the right role,” Michael McConnell, a specialist on church-state issues and a law professor at the University of Utah, told the committee, according to CNS News. He agreed with committee members that judges should not decide cases based on their personal beliefs but based on the Constitution, the text of laws and precedents established by higher courts, CNS News reported.

The nominee to the 10th U.S. Circuit Court of Appeals has drawn opposition from abortion rights organizations, such as the National Abortion and Reproductive Rights Action League and the Religious Coalition for Reproductive Choice; from church-state organizations espousing strict separation between the two institutions, such as Americans United for Separation of Church and State and People for the American Way, and homosexual rights groups, such as the Human Rights Campaign.

Sen. Orrin Hatch, R.-Utah, speaking on behalf of the nominee from his state, told the committee McConnell’s supporters come from all parts of the political spectrum but his detractors come from only one source, CNS News reported.

“About the only opposition to Professor McConnell’s nomination has come from the inside-the-Beltway advocacy groups,” Hatch said, according to CNS News. “Professor McConnell, in my opinion, cannot be pegged as an ‘ideologue’ in any sense of the word. He is an honest man. He calls it as he sees it. And, he is beholden to no one and to no group.”

Pro-life and conservative organizations have endorsed McConnell’s nomination, but many law professors, including liberal scholars such as Lawrence Tribe of Harvard University, Cass Sunstein of the University of Chicago and Akhil Reed Amar of Yale University, also have expressed support. In addition, Hatch reminded the committee McConnell received a unanimous “well qualified” rating from the American Bar Association.

“I must say that what I find striking is the stark difference between the evaluation provided to this committee by his academic peers who know him best,” Hatch said, according to CNS News, “and that done by these Washington special-interest groups.”

McConnell did not back down during the hearing from his outspoken criticism of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion, but he reiterated the Roe ruling was “settled law” and as an appeals court judge he would be bound by Supreme Court precedents, The Washington Post reported.

Most of the questioning focused on McConnell’s extensive writings, according to The Post. He defended an article critical of a Supreme Court opinion that stripped Bob Jones University of its charitable tax exemption because of its ban at that time on interracial dating. Institutions that accept federal funds cannot practice discrimination, but the Bob Jones case was “difficult” because it involved a tax exemption, he said, according to The Post. Under the reasoning of the case, McConnell argued, an Orthodox Jewish synagogue that separates its members by gender could risk losing its tax exemption.

When asked at the committee hearing why he believed the Supreme Court was in error when it upheld the conviction of a Mormon for polygamy, McConnell said it “seems to me a problem” to convict someone for having multiple partners that were “blessed in church” when it is not illegal to have “serial [sexual] relationships,” according to The Post.

McConnell has not backed the opinions of many conservatives on every issue. He has opposed an amendment to ban flag burning. He also has written in opposition to a school prayer amendment.

For McConnell, government neutrality in religion is an important factor. He has supported the inclusion of private religious schools in government voucher programs and the rights of student religious clubs when other organizations are provided the same rights by schools.

“McConnell properly understands that religion and religious speech can co-exist in a secular society without violating the Constitution,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, in a written statement. “While there continues to be the predictable opposition to derail the nomination, Senate Democrats must not give in to the temptation of playing politics with yet another nominee. We call on Senate Democrats on the Judiciary Committee to consider the nominee’s qualifications — not rely on distortions put forth by liberal advocacy groups determined to defeat President Bush’s judicial nominees.”

The criticisms of McConnell have been at least as virulent as those made against the two Bush nominees rejected by the committee — Charles Pickering and Priscilla Owen.

Barry Lynn, Americans United’s executive director, said in a written release McConnell “may be the Religious Right’s dream judicial nominee, but he’s a nightmare for all Americans who treasure the Constitution. He has utter disdain for the First Amendment’s wall of separation between church and state; he rejects nearly all of the Supreme Court’s decisions on this area of law from the last half-century, and, if given the opportunity, would use his position on the federal bench to advance his ideological agenda.”

NARAL President Kate Michelman said in a written statement, “While the vast majority of Bush nominees are conservative and several have demonstrated anti-choice records, this nominee stands alone in having devoted much of his prolific and distinguished career to eradicating a woman’s right to choose. McConnell does not merely believe that Roe v. Wade was wrongly decided, he believes the right to abortion to be the greatest injustice of our time — one that requires special and extreme responses.”

The hearing on McConnell followed by only two weeks the Judiciary Committee’s defeat of Owen’s nomination to the Fifth Circuit Court of Appeals. In three 10-9 votes Sept. 5, the committee refused to send the nomination of the Texas Supreme Court justice to the Senate with a favorable recommendation, as well as with no recommendation or with an unfavorable one. All 10 votes came from the Democratic majority on the committee.

Democrats charged Owen with judicial activism, especially in her opinions on a Texas law requiring parental notification for a minor before she may obtain an abortion. The 1999 law mandating parental notification contained a provision enabling a judge to grant an exception if he deems the underage girl mature and well-informed. In a majority of cases, Owen opposed a judicial bypass for minors requesting one.

All 10 Democrats on the Judiciary Committee are pro-choice, and abortion-rights organizations led the campaign against Owen.

In March, the panel’s 10 Democrats voted against sending Pickering’s nomination to the floor. The vote came after organizations such as NARAL, PFAW and the NAACP attacked the federal judge’s record on civil rights, as well as his views on abortion rights and church-state separation. Supporters of his confirmation, however, charged the opposition based its campaign on a distortion of Pickering’s record on civil rights and on concerns about future rulings on abortion.

Like Owen, Pickering, a federal judge, was nominated to the Fifth Circuit.

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