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Despite Own Views, Nominee Would Back 'Roe'

Court: The judicial hopeful defends his writings on abortion ruling. He says he would 'respect' the law.


WASHINGTON — University of Utah law professor Michael W. McConnell, nominated by President Bush for a seat on the U.S. 10th Circuit Court of Appeals, criticized the Supreme Court's Roe vs. Wade opinion on abortion as poorly reasoned and unconvincing, but he assured senators Wednesday that he views it as "well-settled law" that he would enforce fairly and firmly.

"A lot has happened" since 1973, when the Supreme Court announced that women have a constitutional right to choose abortion, McConnell told the Senate Judiciary Committee.

Although controversial still, the abortion right "has been considered and reaffirmed" by the high court in 1992, with the support of justices appointed by presidents Reagan and George Bush, he said.

"It is also much more reflective of the consensus of the American people," he added.

"The issue is settled, as settled as any issue can be in constitutional law."

McConnell, 47, is the latest of Bush's judicial nominees to face sharp attacks from liberal activists and abortion-rights advocates, who contend that his conservative views and strong personal and legal opposition to abortion make him ill-suited to be a federal judge.

But McConnell is a highly regarded constitutional scholar, and more than 300 law professors, many of them prominent liberals, have endorsed him.

Bush nominated him last year to the appeals court, which is based in Denver.

The vote on sending McConnell's nomination to the full Senate is expected before Congress takes a break for the November elections. The committee rejected two of Bush's high-profile conservative nominees for appellate court seats, Texas Supreme Court Justice Priscilla Owen and U.S. District Judge Charles W. Pickering of Mississippi, earlier this year.

In Wednesday's rather low-key hearing, McConnell both defended his past comments and sought to defuse the issue by stressing the difference between a law professor's writings and a judge's rulings.

Academics get credit for being "provocative" in their writings, he said. They are encouraged to offer new ways of looking at old controversies.

"We all do that in my line of work," he said.

In one such example, McConnell called the Roe vs. Wade ruling an "embarrassment" because it was not based on the Constitution's words or the court's precedents.

Asked to explain that comment, McConnell said he was not alone in questioning the reasoning and logic of the 1973 decision that struck down all of the state laws banning abortion.

"Among legal scholars, criticism of Roe is quite common," McConnell said, even among those who believe women should have such a choice.

The 14th Amendment says, "No State shall ... deprive any person of

Initially, this clause was seen as a guarantee that people would not be sent to jail without a fair trial. But the Supreme Court in the 1960s said that the concept of liberty included a "right to privacy." In the Roe vs. Wade ruling, Justice Harry A. Blackmun said for a 7-2 majority that this right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

McConnell said focus on privacy was "unsatisfactory" in the view of many because it did not take into account "the claim of another being on the other side of the equation."

Nonetheless, he said his job as a judge would be to enforce constitutional decisions of the high court, without regard to his personal or moral views.

"As a judge, I will respect and enforce the law fairly and even-handedly," he said. "I am absolutely committed to that.... I have no hesitation about enforcing" the right to abortion.

Several senators, including Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), Arlen Specter (R-Pa.), Richard Durbin (D-Ill.) and John Edwards (D-N.C.), pressed McConnell to explain his views on the abortion issue, but none indicated opposition to the nomination.

Nan Aron, president of the Alliance for Justice, a consortium of liberal activist groups, said the senators should reject the nominee based on his past writings. "He is asking them to take on faith his ability to be open-minded and to follow the rule of law in the face of decades of writings that show a hostility to these established rights. It's too great a risk to take," she said.

Despite the focus on abortion Wednesday, McConnell is best-known in legal circles for his work on religious freedom. He has argued in the Supreme Court in favor of allowing parochial schools to receive certain types of government aid on the same basis as private and public schools.

However, he also has opposed a return to school-sponsored prayers.

Liberal law professors who know and endorse McConnell say he has not been a predictable supporter of other conservative causes.

He opposed the impeachment of President Clinton and faulted the Supreme Court for stopping the Florida recount in the Bush vs. Gore case. He has also criticized the court's conservative majority for cutting back on Congress' power to enforce civil rights.

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