In her new book, Jan Crawford Greenburg relates that the White House disqualified Judge Michael McConnell from consideration for a Supreme Court nomination based on an obscure and fairly narrow opinion he issued in 2005 — a Tenth Circuit decision ostensibly about qualified immunity for local police officials. Over on Balkinization, I’ve posted an hypothesis about why that McConnell opinion might have set off alarms within the Bush Administration, even though it was in a case in which the defendant acknowledged that his conduct violated clearly established constitutional restrictions.
Short version — it was about executive power and the war on terror . . . not so much about civil liability of local officials. As a general matter, executive prerogatives have been the single most important legal article of faith for this Administration. And I think it’s fair to say from what is publicly known of Judge McConnell that he would hardly have been a sure vote to sustain Executive power claims where checks and balances are at issue. The police liability decision was merely one important example of that.
But this is mostly conjecture based on the Greenburg anecdote — I’d be very curious to hear what others think (or know!).
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