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Former Utah Judge Backs Kagan

Publication Date: 
July 01, 2010
The Salt Lake Tribune
Thomas Burr

Professor Michael McConnell, director of the Stanford Constitutional Law Center, is quoted on his support for Elena Kagan’s Supreme Court nomination:

When then-University of Utah law professor Michael McConnell was up for a spot on the 10th Circuit Court of Appeals, Harvard’s Elena Kagan came to his aid, penning a strong letter of support for McConnell.

Eight years later, McConnell is returning the favor, writing a letter backing Kagan’s nomination to the Supreme Court.

“Publicly and privately, in her scholarly work and in her arguments on behalf of the United States, Elena Kagan has demonstrated a fidelity to legal principle even when it means crossing her political and ideological allies,” wrote McConnell, who resigned his Denver-based appeals court job in 2009 and now heads the Stanford Constitutional Law Center. “This is an admirable and essential quality in a judge.”

Senate Judiciary Chairman Patrick Leahy introduced the letter Wednesday during Kagan’s third day of confirmation hearings in an effort to show there is conservative support for President Barack Obama’s pick to replace retiring Associate Justice John Paul Stevens. McConnell, a widely respected constitutional scholar, was appointed by President George W. Bush to the 10th Circuit and enjoyed strong support from Sen. Orrin Hatch, R-Utah.

Leahy said that just as conservatives like Hatch asked Democrats to accept McConnell would uphold the law, McConnell says “Kagan deserves not a grudging acquiescence, but an enthusiastic confirmation as an associate justice of the United States Supreme Court.”

Hatch, who says he is still undecided on whether to back Kagan, has said there are serious concerns with her record, including her work in the Clinton administration and as Harvard Law School dean. But the Utah Republican says he respects McConnell’s take.

“That’s high praise indeed because I think Michael McConnell is about as good a constitutional expert and lawyer as we have in this country and certainly a great teacher,” Hatch said.

McConnell, in an eight-page letter, defended Kagan’s record on freedom of speech and religion, restraints of executive branch power and her service at Harvard, including her move to bar military recruiters from directly accessing students without an intermediary group. He added that Kagan, whom he has known for 20 years, had “skillfully navigated political waters” in the Clinton administration and as dean.

Kagan offered kind words for McConnell in 2002 as well.

“There is no part of Michael that is activist or extremist,” she wrote in a letter co-signed by dozens of other law professors. “He is one of the most fair and scrupulous individuals I have ever encountered. I do not believe he ever would bend the law to get to a political result.”