Eminent Domain

Marty Lederman recently kicked off a discussion about why Judge Michael McConnell is not Justice Michael McConnell. Supreme Conflict states that Deputy White House Counsel William Kelley (one of the nomination screeners) nixed McConnell for the Supreme Court because of one opinion. Prof. Kerr over at Volokh takes a look at that case, Lawrence v Reed.

Lederman's theory is that the Lawrence opinion made McConnell look bad on executive immunity issues in the eyes of the Bush Administration. And we all know how much the Bush Administration loves their executive power. Take a look at Lederman's post for a more detailed explanation. I won't try to rehash what he spelled out nicely.

So who is right, Greenburg's source in the book or Lederman? Or is it something simpler? I think that it's something simpler. Could Lawrence have spooked Kelley? Sure, it's plausible. Did one opinion tank the chances of a McConnell nomination? I doubt it. While incredibly qualified, McConnell has some major strikes against him before he ever even got on the Tenth Circuit. Those strikes had to do with his writings. As a law professor, McConnell produced volumes of material on various aspects of constitutional law. Robert Bork had a similar problem during his nomination. McConnell also wrote Wall Street Journal op-eds calling Roe v Wade illegitimate and calling Bush v Gore a muddled ruling. There was just too much material to use against him.
It's one thing to get on the Court of Appeals with these writings. You can say that you will follow and apply the precedent of the Supreme Court, not go off on your own. I believe that is what McConnell told the Judiciary Committee (or at least that's the short version of it). It's an entirely different ball of wax when you are nominated to the Court that makes those precedents. That Roe op-ed is particularly damaging. That isn't some esoteric law review article on the Necessary and Proper Clause. That is a short, to the point, written-for-mass-consumption opinion piece that can be e-mailed, forwarded, and read across the nation by Joe Six-Pack. While the arguments made by McConnell are well-reasoned and persuasive, they are too easy to soundbite and quote.

Personally, I think that those writings were strikes counted against McConnell before he even got up to the plate, or in this case, the bench. Any understanding that Kelley had about Lawrence was probably just the nail in the coffin.