an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Why Did the Bush Administration Pass Over Michael McConnell?
There is a strikingly odd passage in Jan Crawford Greenberg's new book on the Supreme Court, Supreme Conflict. In writing about the White House's decisionmaking with respect to the nomination for Justice O'Connor's replacement (before the Chief Justice had died), Greenberg reports (page 199) that Deputy Counsel to the President William Kelley, a Notre Dame professor,
closely examined opinions for clues on whether a prospective nominee was, as Bush has requested, like Thomas or Scalia. With some, it took one bad opinion to knock them out. [F]ederal appeals court judge Michael McConnell was a favorite of some conservatives, but he'd written a decision earlier in the spring that would have subjected police officers to sweeping liability for actions while on the job. That was enough for Kelley.
The decision in question is the opinion of the U.S. Court of Appeals for the Tenth Circuit in Lawrence v. Reed, issued on May 6, 2005, less than two months before Justice O'Connor's resignation--and while Judge McConnell was being prominently mentioned as a possible nominee in the event of a Supreme Court vacancy.
To anyone familiar with the players in this story, the idea that Judge McConnell's decision in Lawrence was the reason he was not nominated to the Supreme Court seems almost inexplicable. (Of course, Greenberg's sources could simply be wrong. Perhaps the Lawrence decision played little or no role in the White House decision not to nominate Judge McConnell.)
Judge McConnell was obviously one of the very most qualified and talented of the jurists on the President's short list, and Greenberg is absolutely right that he was a favorite of some conservatives. McConnell also would likely have garnered the support of at least some prominent non-conservative academics, which undoubtedly would increased his attractiveness as a possible choice from the White House's perspective.
It thus seems virtually inconceivable that a single, obscure qualified immunity decision would be his kiss of death, even if that decision had "subjected police officcers to sweeping liability for actions while on the job." After all, qualified immunity for local police officers is not (to my knowledge, at least) high on the list of priorities for this Administration in its considerations of prospective Supreme Court Justices. But in any event, Judge McConnell's Lawrence decision did not by any stretch of the imagination subject police officcers "to sweeping liability for actions while on the job."
In run-of-the-mine qualified immunity cases, the relevant questions are whether the police officer's conduct violated the plaintiff's constitutional rights and, more importantly for immunity purposes, about whether the constitutional limitation was clearly established at the time of the relevant police conduct. (If the law was not yet clearly established, the defendant is typically entitled to qualified immunity from suit.) But in Lawrence, neither of those questions was contested -- this was the rare case in which the defendant police chief "concede[d] that he violated [the plaintiff's] clearly established constitutional rights." (He had seized 70 vehicles from the plaintiff without anything approaching the sort of hearing that due process requires.)
In light of this concession, the court's actual holding in Lawrence is exceedinglynarrow and fairly uncontroversial, and has almost no precedential effect.
So the mystery, then, is why this decision might have been so troubling to the White House that it served to disqualify Judge McConnell from consideration. Here's one possibility, the only one I can think of that makes any sense at all (unless Greenberg's sources are simply wrong):
The defendant police chief in Lawrence argued that he should be afforded immunity even thoughit was clearly established that his conduct was unconstitutional, because he had relied on advice of counsel -- namely, the city attorney. There is some doctrinal support for the notion that reasonable reliance on the advice of government attorneys can be an "extraordinary circumstance" that can provide civil immunity for a violation of even clearly established constitutional law. Defendant Reed argued that he was protected by this line of precedent, because he had twice sought out the city counsel for advice, and both times the counsel had advised Reed that he was authorized to seize the vehicles without further process.
Judge McConnell's majority opinion in Lawrence in effect concluded that the police chief's reliance on the advice of government counsel in that case was not reasonable. "What Mr. Reed really wants us to conclude," Judge McConnell wrote, "is that it is generally reasonable to rely on the city attorney’s advice—that it is the attorney’s job, not the police officer’s, to point out when a statutorily authorized course of conduct violates the Constitution." Judge McConnell sharply rejected that notion, however:
Given Mr. Reed’s concession that his conduct violated Mrs. Lawrence’s clearly established rights, and given the Supreme Court’s admonishment that “a reasonably competent public official should know the law governing his conduct,” Harlow, 457 U.S. at 819, Mr. Reed must point to something in his consultation with the city attorney that prevented him from knowing the law. This he has not done.
Judge McConnell further wrote that "we find particularly significant the fact that Mr. Reed and City Attorney Lewis never once discussed the applicable constitutional law governing Mr. Reed’s conduct."
Once Lawrence is properly understood as a case not about the arcane question of when the law is "clearly established" for purposes of qualified immunity, but instead as a decision rejecting the idea that reliance on government counsel is necessarily a "reasonable" ground for engaging in conduct that would otherwise be understood as unlawful, the White House's unease with Judge McConnell becomes much more explicable. This is, after all, an Administration in which officials of the CIA, NSA and Defense Department often balked when requested to engage in conduct of dubious legality ("enhanced" interrogation techniques; warrantless electronic surveillance), only to be assured that they could reasonably rely upon very unorthodox legal advice from the Department of Justice -- including, in the case of the August 2002 OLC torture opinion, advice about the Commander-in-Chief Clause that "never once discussed" much of the "applicable constitutional law" (such as the Steel Seizure decision and Little v. Barreme).
In the criminal context , even more so than in the civil context of Lawrence, due process prevents prosecution for conduct undertaken in reasonable reliance on the assurances of government counsel that one's conduct would be legal. I have previously written in this space that I think future prosecution for torture and other crimes is virtually inconceivable with respect to officials who relied on OLC legal advice, largely because of such a due process defense of reasonable reliance upon counsel.
I continue to believe that's correct. Nevertheless, one can easily imagine why Deputy Counsel Kelley might have been concerned by Judge McConnell's reasoning in Lawrence. If one or more Administration officers or employees later found themselves facing possible criminal sanction, and they were to invoke a reliance-on-OLC defense, it would be a bit disconcerting, to say the least, to be confronted with a recent decision of a Justice McConnell stressing that "reasonably competent public officials" should "know the law governing [their] conduct,” and that discussion with counsel changes the equation only if the defendants can "point to something in his consultation with the [counsel] that prevented him from knowing the law."
The failure to nominate McConnell is only a mystery if you take Bush's pledge to nominate clones of Thomas and Scalia seriously. Take a look at who he first tried to nominate to the Court, before his own party rebelled: Meyers.
Bush never had any intention of putting genuine conservatives on the Court. That, not McConnall's opinion in a minor case, was what kept him off the court, along with all the other obvious choices.
I too found this passage spectacularly bizarre. Marty's theory is intriguing, but I'm skeptical. I had thought the obvious reason for the Administration to pass over McConnell was his too-public record on abortion and religion. Though more of a thinking man's conservative than Alito, McConnell had things in his record as an academic that would have made for an especially bitter confirmation fight.
You said, "I have previously written in this space that I think future prosecution for torture and other crimes is virtually inconceivable with respect to officials who relied on OLC legal advice, largely because of such a due process defense of reasonable reliance upon counsel."
I am actually more interested in something you said in that prior post: "We should encourage Executive branch officials and employees to seek the legal advice of the AG (and OLC), and to rely on such advice. If the advice is wrong, disingenuous, or offered for improper purposes (e.g., to provide legal cover for conduct of dubious legality), the DOJ officials should be called to account ... ."
By what mechanism is it legally feasible to call such lawyers to account?
Even if we believe some DOJ lawyers acted in bad faith -- and I tend to think so -- what can anyone do about it? It is situation where the law and lawyers have massively failed, and disgraced the tradition of public-service lawyering.
If anything, I fear, the torture and illegal eavedropping matters illustrate a certain futility in trying to regulate executive officials by means of criminal statutes such as FISA and the War Crimes Act. (In the torture situtation, Congress seems to have retroactively decriminalized much of what was done, anyway.)
When a president and his senior officials are the primary bad actors, work in secret and in bad faith, and avoid judicial review, they have the expedient means of frustrating justice by having their consigliere write a few memos. Then they run can out the clock.
Congressional oversight, even if successful, can accomplish little more than disclosure unless the political will exists for impeachment. There obviously will be no special counsel during the next two years. Assume the next administration's attorney general reads the files after taking over and thinks they stink. What next?
"I have previously written in this space that I think future prosecution for torture and other crimes is virtually inconceivable with respect to officials who relied on OLC legal advice, largely because of such a due process defense of reasonable reliance upon counsel."
With respect Marty, I continue to believe that you are wrong about this, and that your position begs a question:
Just exactly what is or isn't 'reasonable'?
Is it reasonable to propose that the President has the power of a Roman Imprator to decree life and death at whim with out the least regard for any law?
I think not: such a notion is contrary to the very idea of a Constitutional Republic, and utterly subversive of the rule of law -- the creed of gangster.
It is absolutely imperative that the criminals of the Bush administration to be prosecuted, convicted, and punished for their crimes. They have made a direct and systematic attempt to subvert rule of law, and the law MUST be defended.
And I really think this issue needs to be raised with the Congress and the Presidential candidates right now.
I'm not sure what the rule is under federal law, but under CA law advice of counsel is NOT a defense to a general intent crime but can be used to negate specific intent.
Here's the basic principle for general intent crimes:
"The defense of action taken in good faith, in reliance upon the advice of a reputable attorney that it was lawful, has long been rejected. The theory is that this would place the advice of counsel above the law, and would also place a premium on counsel's ignorance or indifference to the law." Witkin & Epstein, California Criminal Law, 2d Ed., Defenses, Sec. 220, p. 254. Accord, People v. Flora, 228 Cal. App. 3d 662, 670, 279 Cal. Rptr. 17, 21 (1991); People v. Vineberg, 125 Cal. App. 3d 127, 137, 177 Cal. Rptr. 819, 824 (1981).
On the assumption that Greenburg's anecdote has any truth to it, your theory is very interesting.
Alternatively, Bush might have felt compelled by the vicious nature of the nomination process to nominate people (as he did) who had less of a paper trail on controversial issues, such as calling for a constitutional amendment to ban abortion.
Some conservatives were concerned about Judge McConnell's position on gay marriage in light of some of his postings on the internet as a law professor. I suspect, but do not know, that this issue was the reason he did not emerge as the Administration's choice.
" ... and given the Supreme Court's admonishment that 'a reasonably competent public official should know the law governing his conduct,' Harlow, 457 U.S. at 819 ...." is at page 4 of the decision in Lawrence.
I wonder how many public officials are aware of this admonishment? I guess it depends upon how many of them are "reasonably competent". For example, in George W's Administration ....