Scott Johnson at Powerline offers an extended defense of Judge Michael McConnell against this vicious hit from the right. Everything I know about McConnell (whom I have known for 30 years) suggests that Johnson is right and the author of the hit piece is wrong and misguided.
Update #2: Andrew Hyman, with whom I engaged in a long colloquy in the comments section, has posted the relevant passages from McConnells Appeals Court confirmation hearings here. Read them for yourself and then read the comments. Hyman persists in placing the most damaging possible construction on McConnells testimony, which is rather carefully phrased. And note that he persists in a post made after he said (comment # 10, at 7:24 p.m. Sunday evening) that he had received "some pretty solid assurances about Judge McConnell from other people I’ve communicated with, so I don’t expect to be opposing his nomination." I cant understand how he thinks offering his construction of the evidence doesnt amount to opposing a McConnell nomination. Did something happen between 7:24 p.m. and 11:11 p.m. Sunday evening? Is this confusion, a genuine change of mind or heart, or something less savory?
As for the polygamy issue, Ill say only this: It does not amount to a constitutional right to legally-recognized and supported polygamy (analogous to the constitutional right claimed by proponents of gay marriage), but merely the right (at most) to be left alone on religious freedom grounds. A defender of an anti-polygamy law would have to--and perhaps could--offer a "compelling state interest" rationale for sanctioning this behavior, but, as McConnell notes, weve acquiesced in so much private "immorality," at least to the extent of leaving it alone, that its hard to explain legal proscription of polygamy as anything other than the product of an animus against a particular religion. But again (let me repeat this for those prone to misconstrue), leaving polygamists alone is not the same as approving them or extending the legal privileges and immunities of "one man, one woman" marriage to them. I should also say, so that Im clear, that I am not speaking for McConnell here, but offering a speculative defense, in my own name, of what I take to be McConnells understanding of religious freedom (especially as articulated in his 1986 article "Accommodation of Religion").