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Beyond Conservatism

Few judicial nominations set off a more impressive pyrotechnic spectacle between conservatives and liberals than that of Michael W. McConnell, '79. As a nominee, McConnell was disfavored by many on the left because of his apparent positions on abortion and religious education. Despite such protests, McConnell was appointed Circuit Judge on the U.S. Court of Appeals for the Tenth Circuit in January 2003.

But across the nation, neither conservative nor liberal scholars dispute the quality of McConnell's scholarship. McConnell taught constitutional law at the Law School for twelve years and his former colleagues describe him as a well-respected scholar and seasoned attorney. "McConnell is unmistakably conservative and some of his views are controversial. But he is far from an ideologue [he] is an open-minded and judicious thinker," wrote Cass Sunstein in a 2002 editorial published in the Wall Street Journal.

McConnell's reputation for fair judgment in legal matters naturally follows his teaching experience at the Law School. "It's a truly unusual place," he says, "one of genuine intellectual diversity—not just tokenism—where you have significant figures on the faculty who engage in substantive conversation and disagreement—not name-calling and political posturing, but serious discussion of serious issues.

"McConnell's experience as a student at Chicago was not ideologically conservative either. "The great distinctiveness of Chicago is that you can be left or right, but you have to be able to support your position with reasoned argument."He appreciates great professors such as David Currie, Richard Epstein, and Walter Blum for their effective teaching styles and ability to detail particular subjects in a wider theoretical framework.

As comment editor of the Law Review, McConnell says he "probably spent more time working on Law Review than in law school itself." He recalls enduring the two coldes twinters in Chicago, during which his car was completely buried in snow for over a month. "I can remember sittingin the Law Review office, hunched over my typewriter, with an illegal space heater under my legs," he laughs.

After graduation, McConnell clerked for Chief Judge SkellyWright on the United States Court of Appeals for the D.C. Circuit and then for Associate Justice William J. Brennan, Jr. on the United States Supreme Court. Over the next few years, he served as assistant general counsel for the Office of Management and Budget, and then as an assistant to then-Solicitor General Rex E. Lee, '63.

One of McConnell's self-described professional high points was winning the Supreme Court case of Rosenberger v University of Virginia, a difficult case with significant implications for both free speech law and establishment clause law. "Most people thought it couldn't be won," says McConnell. In a 5-4 decision the Court ruled that the university had inappropriately denied funding to a student-produced Christian magazine.

McConnell favors a policy of impartial neutrality with regard to religion. According to him, the idea that the purpose of the religion clauses was to subordinate religion is both historically false and untrue to the aspirations and beliefs of most Americans today. "I do not believe that the Establishment Clause was designed to create a more secular society," says McConnell. "It was designed to protect liberty of conscience and to promote a vigorous and free system of religious institutions."

After nearly two years of judicial experience, McConnell says the greatest challenge of being a judge is also the part he enjoys most: "The issues are tremendously varied, so I am constantly learning about new areas of the law and aspects of life," says McConnell. "I have found that the criminal cases in particular present very difficult, real-world problems."

In addition to his judicial duties, McConnell is the Presidential Professor of Law at the S.J. Quinney College of Law at the University of Utah. This winter McConnell will be at Harvard Law School as a visiting professor, teaching a course on the history of drafting and ratifying the Constitution. A Kentucky native, McConnell enjoys hiking, camping, and skiing with his wife and three children in Utah.—J.M.C.