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Former U of C law prof on everyone's short court list

President Bush will make at least one Supreme Court appointment in the next few months. If ailing Chief Justice William Rehnquist steps down, as many suspect, he'll make two.

Former Chicagoan Michael McConnell, now a judge on the 10th U.S. Circuit Court of Appeals, sits high on most lists of potential nominees. Bush does face pressure to pick a woman or a minority to replace Justice Sandra Day O'Connor. But naming McConnell would please religious and social conservatives, who turned out in droves for Bush in the 2004 election. Rehnquist's retirement could make McConnell's selection more likely.

McConnell, 50, is known for asserting that the separation of church and state has become too rigid. He sees nothing unconstitutional in government aid to religious schools, for example, and supports the rights of student prayer clubs. He argued the Boy Scouts of America should be allowed to exclude gays, and once wrote that Roe v. Wade, which made abortion legal, was "an embarrassment to those who take constitutional law seriously."

McConnell taught at the University of Chicago Law School for 12 years, and he earned his law degree in Hyde Park, too.

"Michael came to the University of Chicago as a brilliant student," said Geoffrey Stone, who has taught at the law school since 1973. "He was one of the very few students I had that I knew I wanted to hire on the faculty within a few weeks of his arrival," Stone said.

Stone, a renowned constitutional scholar and a self-described liberal, said he tried to nudge McConnell away from conservatism.

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"I actually, in hope of somewhat moderating Mike's very strong conservative bent, arranged clerkships after law school with the same two judges for whom I had clerked, both of whom were very liberal," Stone said.

But neither Judge J. Skelly Wright nor U.S. Supreme Court Justice William Brennan -- viewed by liberals as a judicial saint -- changed McConnell's views. McConnell did not respond to requests for comment.

Returning to Chicago to teach, he joined a faculty known as more conservative than most. The law school had become home to the "law and economics" movement, an approach that stresses economic considerations in solving legal problems. But McConnell went his own way.

"While he was here, he carved out a position on the [Constitution's] religion clauses which rejects the idea of a strict wall between church and state, in preference for a position of neutrality," said Cass Sunstein, a professor at the law school.

Sunstein said McConnell's social conservatism made him "unusual" at the law school, where professors tended to define their conservatism in free-market terms.

"He was interested in law-and-economics and learned a lot from it. But he was a religious conservative. And in academia, that's not as well-represented as it should be," Sunstein said.

Sunstein, a liberal constitutional scholar, added McConnell is "a lovely person. . . . Students of all ideological views liked him."

McConnell is so well-liked and respected that law professors of all political stripes supported his 2002 nomination to the U.S. Court of Appeals. A group of 200 academics came out in favor of his selection, said Douglas Laycock, a law professor at the University of Texas who taught McConnell at Chicago.

Laycock, who considers himself more liberal than McConnell, wrote an opinion piece for the New York Times supporting his former student's nomination to the appeals court.

McConnell is "not as conservative across the board as he sometimes thinks he is," Laycock said in an interview last week. "He's very conservative on some high-profile issues, most notably abortion. But he's a very independent thinker."

Indeed, McConnell defies easy categorization. He has criticized Justice Antonin Scalia, a conservative hero, for applying drug laws against a religious group that used peyote in its ceremonies. And he took a stance against prayer at public school graduation ceremonies.

He even criticized the Supreme Court's ruling in Bush v. Gore, which handed the presidency to the man who might nominate him.

While teaching at the University of Chicago, McConnell tried his hand at private practice. As special counsel for Mayer, Brown, Rowe & Maw, he handled appeals in the types of commercial cases that are bread and butter for big Chicago firms.

In 1997, McConnell accepted a job at the University of Utah's law school, a less prestigious place than Chicago or Harvard, where he had also been offered a job.

According to Stone and others, McConnell and his wife no longer wanted to raise their children in a big city. In 2002, Bush tapped him for the 10th Circuit, which sits in Denver and hears appeals from several western states.

The list of potential Supreme Court nominees also includes a handful of conservative female judges. One of them, Judge Diane Sykes, has Chicago ties. She sits on the 7th U.S. Circuit Court of Appeals, which convenes in Chicago.

But Sykes does not have a long track record of opinions or scholarly writings.


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