Private: Who Is Michael McConnell?

Judge McConnell has been suggested as possible nominee to replace Justice O'Connor. Slate's Emily Bazelon called Judge McConnell "John Roberts, The Sequel." "If Bush really wants to put his mark on the law, he'll pick someone with the intellectual weight to lead the court and the personality to persuade his colleagues to follow him (or to think he's following them). Who is another Roberts? The clearest choice is Michael McConnell," according to Bazelon.
McConnell was appointed by President Bush to the 10th Circuit Court of Appeals in 2002. McConnell's appointment to the 10th Circuit received the support of a vast array of law professors including Cass Sunstein, Elena Kagan, John Hart Ely, Charles Fried, and Michael Dorf. McConnell is a graduate of the University of Chicago Law School and clerked for Judge Skelly Wright and Justice Brennan. Prior to his appointment to the federal bench, McConnell was a law professor at the University of Chicago and the University of Utah. He also served some time in the corporate legal world as an appellate attorney for Mayer Brown.

On Civil Rights and LibertiesMcConnell represented the Boy Scouts of America in Boy Scouts v. Dale, in which the Supreme Court agreed with McConnell's argument and ruled that New Jersey's public accommodations law that required the Boy Scouts to admit gay scouts violated the Boy Scouts' First Amendment right of expressive association. McConnell supported the rights of students to form an official Gay-Straight Alliance at a high school in conservative Salt Lake City
In De Paul Law Review article, McConnell argued that the Supreme Court's decision in Roberts v. United States Jaycees, which ruled that the Jaycees policy of excluding women from membership was illegal and could not be justified by the First Amendment, may have extended beyond what is reasonable. "The Jaycees case itself might be an exception; as essentially a business networking organization, the state may have a stronger than usual interest in regulating the Jaycees in order to ensure equal access to economic opportunity. However, most private noncommercial groups should be allowed to constitute and govern themselves."

In Gonzales v. City of Castle Rock, McConnell dissented from the 10th Circuit's ruling in favor of a woman whose three children were killed by her ex-husband. The 10th Circuit found the city liable for not enforcing a restraining order against the husband, despite repeated warnings. McConnell argued that the majority's ruling, "expand greatly the liability of state and local governments." The Supreme Court ultimately reversed the 10th Cirucuit's ruling agreeing with McConnell.

On FederalismMcConnell appears to adhere to the principles of the Constitution In Exile movement that criticizes the federal courts for granting too much deference to the legislative and executive branches of government. In a Salt Lake Tribune article (June 4, 2000) entitled "Lies, Damned Lies, and the 'Evidence' for the Violence Against Women Act," McConnell praised the Supreme Court's decision in United States v. Morrison that struck down key parts of the federal Violence Against Women Act. He suggested that a contrary ruling would have "twist[ed] the Commerce Clause beyond all recognition." He argued that the legislation was "redundant and symbolic statute, which only complicates the problem of crime."
Following decisions like Morrison and Lopez, McConnell wrote an article that argued "recent federalism decisions", while "controversial politically," are jurisprudentially "unexceptional," because they serve "constitutional principles that can be traced to the constitutional text and history."
In 2005, McConnell wrote for an unanimous panel that held that Congress' power to regulate interstate commerce includes the prosecution of a child pornographer-who transported a boy across state lines and paid to photograph him.
On Reproductive Rights While he has yet to have ruled on a case related to reproductive rights, in 1996 McConnell singed a statement in support of a constitutional amendment that would ban abortions. The statement read, "We believe that the abortion license is a critical factor in America's virtue-deficit." He has also testified before Congress arguing against a bill that would limit proection zones around abortion clinics. He has called the reasoning of Roe v. Wade, "an embarrassment to those who take constitutional law seriously."On Environmental Protection and Property RightsWriting for a unanimous panel in Biodiversity Associates v. Cables, 2004, McConnell upheld a federal law that permitted logging in the Black Hills National Forest in South Dakota.
On Separation of Church and StateIn a law review article written by McConnell, he argued that the Supreme Court's 1983 unanimous decision in Bob Jones University v. United States--where the Court held that the IRS may deny tax-exempt status to a religious school with racially discriminatory policies (no interracial dating permitted)--was wrongly decided; the "racial doctrines of Bob Jones University" that ban interracial dating should be "tolerated" even if they are "morally repugnant" since they are "church teachings."
On Sexual HarassmentMcConnell criticized the Supreme Court's 1998 opinions that have helped to combat sexual harassment. McConnell called the court's decisions in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, which held that employers could be liable for sexual harassment by suprvisors, losses for the "conservatives on the Court" that would result in "unleashing plaintiffs' lawyers on the nation's workplaces to enforce codes of civil behavior" and "fear and resentment."