WASHINGTON — Controversial appeals court nominee Michael McConnell of Utah pledged Wednesday to enforce laws and higher court precedents that he personally dislikes.
But liberals attacked him as too right wing to allow that to happen.
Meanwhile, his defenders said liberals are so busy with character assassination of McConnell that they haven't realized he is actually a conservative whom liberals should like because he attacks some views on the right as well as the left.
"McConnell's views defy political pigeonholing . . . . He is an honest man," said Sen. Orrin Hatch, R-Utah, ranking Republican on the Senate Judiciary Committee, as hearings on McConnell began.
Liberal groups have fiercely attacked the University of Utah law professor for academic writings that oppose abortion and for writing that court reasoning that allowed abortion was flawed. Such groups helped kill two other conservative appeals court nominees this year, including Patricia Owen just two weeks ago.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., asked McConnell if as a judge he could enforce the right to privacy and the abortion rights that have come from them.
"It is now-settled constitutional law, and I have no hesitation in enforcing it as such," McConnell said.
When Leahy probed further on those and other Supreme Court precedents, McConnell said he would enforce them because "they are the law of the land, whether I agree with them or not."
Several liberal groups also say they worry McConnell's writings show he may eliminate barriers between church and state.
Sen. Dick Durban, D-Ill., questioned whether McConnell might even allow people to break criminal laws by claiming it is part of their religion. He asked McConnell specifically if he would enforce anti-polygamy laws because he had written some academic papers raising questions about them.
McConnell said that "criminal law applies to all people."
McConnell, who is not a member of The Church of Jesus Christ of Latter-day Saints and even brought his former Presbyterian minister to the hearing, said he had discussed the old Supreme Court case that banned polygamy with his classes because of its interest in Utah.
He said that whether it was decided correctly in its time, its enforcement raises interesting legal questions in the modern world because the law does not ban people from having serial relationships as long as those relationships are not formally blessed by clergy as marriage.
McConnell said he could not say specifically how he would rule in such cases because it is possible similar ones could come before him in the 10th Circuit Court of Appeals.
Hatch, Sen. Bob Bennett, R-Utah, and Rep. Jim Matheson, D-Utah, appeared before the committee to defend McConnell, who also received support from some of the best-known liberal lawyers in the nation, including Laurence Tribe, who defended Al Gore before the Supreme Court, and former Clinton administration Solicitor General Walter Dellinger.
"If you cannot confirm this man, we cannot justifiably confirm anybody," Bennett said, noting McConnell had a unanimous "well-qualified" rating from the American Bar Association and endorsements from hundreds of high-profile lawyers from across the political spectrum.
"I hope members of this committee can resist the almost frantic character assassination" of McConnell by pro-choice and other liberal groups, Bennett added.
Hatch noted that while the left dislikes his stands on abortion and unfettered religious freedom, they forget that McConnell also vocally opposed the impeachment of Bill Clinton, fought a school prayer amendment, has represented some left-wing groups for free and even fought Hatch's constitutional amendment to protect the flag.
"He has taken these positions and has earned the broadest respect of his peers, liberal and conservative, not to make friends . . . but to be honest intellectually," he said.
However, liberal groups kept up a drumbeat against McConnell outside the hearing.
Eleanor Smeal, president of the Feminist Majority, said urged senators to reject him to "continue to send President Bush the message that they will not approve judges that will take away women's rights and roll the clock backwards."
The Rev. Carlton W. Veazey, president of the Religious Coalition for Reproductive Choice, said McConnell "poses a danger to the constitutionally guaranteed rights of reproductive choice and religious freedom."
However, one major right-wing group believes the timing of McConnell's hearing may help him. John Nowaki, director of legal policy at the Free Congress Foundation, predicted that Democrats will be hesitant to reject McConnell so soon after rejecting two other appeals court nominees.
"Democrats on the committee certainly have to be more cautious about pursuing course of defeating nominees because there's already a substantial amount of bad feelings among Republicans about it. Republicans may be close to forming their own litmus test for future Democratic nominees," he said.
Of note, McConnell has taught at the University of Utah since 1997. He has also taught at Harvard and the University of Chicago. He was a law clerk for former U.S. Supreme Court Justice William Brennan. He was also a former assistant to the U.S. solicitor general.
McConnell was in the first bunch of appeals court nominees announced by President Bush. He has had to wait 16 months for his hearing. Hatch had accused Democrats of delaying it, in part, to tweak him.