This morning's Washington Post reports that advisers close to the White House think that the short list to replace Rehnquist on the court does not include Michael McConnell:
White House officials have prepared for the prospect by culling long lists of possible candidates, poring through old cases and weighing a variety of factors from judicial philosophy to age. Bush and his inner circle have had tightly held deliberations and no one can say for sure whom he might pick for chief justice, but outside advisers to the White House believe the main candidates are federal appeals Judges John G. Roberts and J. Michael Luttig and possibly Attorney General Alberto R. Gonzales...While Bush has kept mum, about a dozen names of possible candidates have floated out, including Judges Michael W. McConnell of the U.S. Court of Appeals for the 10th Circuit; J. Harvie Wilkinson III of the 4th Circuit; Emilio M. Garza of the 5th Circuit; and former solicitor general Theodore B. Olson. McConnell has important advocates in Bush circles, but Wilkinson and Olson, in their sixties, are thought to be too old. Garza is seen as a possible choice if Gonzales is not selected. Advisers do not believe a current justice will be elevated to chief.
The three apparent front-runners -- Luttig, 51; Roberts, 50; and Gonzales, 49 -- all hail from the same generation but bring different strengths and weaknesses.
The article discusses the possibility of Gonzales at some length and notes that his nomination would not please the religious right and would in some ways move the court slightly to the left. The SCOTUSBlog has already written reviews of Roberts and Luttig.
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I found this article in the Village Voice. On McConnell it says:
Jason-
This is unfortunately going to be typical of the sort of oversimplified attacks that will be aimed at McConnell. There's a lot left out. On Roe for instance, they left out that criticism of the legal reasoning of that decision is hardly confined to the right. Ruth Bader Ginsburg, in fact, has written very critically of the legal reasoning of that decision and she is staunchly pro-choice. It's a pretty badly argued and badly conceived decision, even if one is pro-choice. So criticism of Roe is hardly a reasonable basis for rejecting a nominee. He was questioned at great length about his views on Roe during his confirmation hearings for the 10th circuit and impressed even those who were staunchly pro-choice with his reasonable and intelligent views on the subject. And he did make clear that while he personally disagrees with the decision, he does consider it to be settled law that should not be overturned now.
On church/state issues, this is a very dramatic overstatement of his views. I happen to disagree with his views on church/state separation, but I disagree with his real views, not this exaggerated version of them. The claim that he has testified in favor of removing separation from the bill of rights is utter nonsense. McConnell is an accomodationist on this question. And while I am not an accomodationist, I at least recognize that there was a sizable portion of the founders who were such and intended the religion clauses to allow for their vision. They were probably even in the majority. The strict separation views of Madison and Jefferson were countered among the founders by the accomodationist views of Washington and others. Both views can claim originalist legitimacy and neither is out of the question, so while disagreeing with him I think it's absurd to suggest that his accomodationism is out of the question and ridiculous.
I strongly disagree with his views on teaching evolution, of course. But I don't think that's a good reason to oppose his nomination. Of all of the potential Bush nominees, this is clearly as good as it's going to get for those of us who reject most conservative judicial views.
Ed,
Thank you for your coverage. I try to make sense of the he said/she said "coverage" I find, and have found very few places to go where there is some real balance and a real attempt to understand.